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Eleventh Circuit

We’re Convinced, CA11 Judge Lisa Branch is a Clone of CA5 Judge Priscilla Owen

On the contrary, at least Judge Jill Pryor is desperately attempting to rectify her tarnished online persona.

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LIF COMMENTARY

LIF: MAR. 8, 2022

Yet another shocking opinion by the 11th Circuit, who appear to wish to behave as twins, executing outlandish opinions in the same notorious manner as their sister court, the 5th Circuit. Ochlocracy on steriods is how we define these two Circuits and we were delighted to see the en banc filing put an end to Judge Lisa Branch’s outrageous bias.

On 4/7/2021 a single U.S. Court of Appeals (in the 11th Circuit) decided in a 2 to 1 split decision that Winn-Dixie’s website did not have to be accessible to people who are blind.

Gil v. Winn-Dixie Stores, 993 F.3d 1266

(11th Cir. 2021)

Apr 7, 2021

PLAINTIFF-APPELLEE JUAN CARLOS GIL PETITION FOR REHEARING EN BANC

STATEMENT OF COUNSEL

I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decisions of the Supreme Court of the United States or the precedents of this circuit and that consideration by the full court is necessary to secure and maintain uniformity of decisions in this court:

1. The majority discarded the circuit’s established “nexus” standard for determining if there is a sufficient connection between a place of public accommodation’s physical site and a good, service, facility, privilege, advantage, or accommodation it provides outside of its physical site (such as its website) such that the offering is subject to the ADA.

Rendon v. Valleycrest Prods., 294 F.3d 1279 (11th Cir. 2002); Haynes v. Dunkin’ Donuts, LLC, 741 Fed. App’x 752, 754 (11th Cir. 2018).

2. In this case regarding discrimination against blind internet users, the majority’s standard of comparison (“a sighted customer who does not have internet access”) violates the established standard under A.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270, 1294-95 (11th Cir. 2018); Silva v. Baptist Health S. Fla., Inc., 856 F.3d 824, 834 (11th Cir. 2017) (a non- disabled person accessing the website).

3. The majority’s opinion setting new precedent that websites per se are not “places of public accommodation” under Title III of the Americans with Disabilities Act (ADA) is inconsistent with the principle that panels should not make holdings on issues not decided by the lower court and not litigated on appeal.

See United States v. McAllister, 77 F.3d 387 (11th Cir. 1996), cert. denied, 519 U.S. 905 (1996); United States v. Strickland, 682 Fed. App’x 742 (11th Cir. 2017); United States v. Lewis, 115 F.3d 1531 (11th Cir. 1997)

I express a belief, based on a reasoned and studied professional judgment, that this appeal involves one or more questions of exceptional importance:

1. Did the panel majority err in abandoning the firmly established “nexus” standard, thereby imposing the most limits of any circuit on the protection from discrimination in the ADA remedial scheme?

2. Does Winn-Dixie’s operation of a website that provides goods, services, facilities, privileges, advantages, or accommodations but is inaccessible to blind customers violate Title III’s prohibition of “different treatment” of individuals with disabilities, 42 U.S.C. § 12182(b)(2)(A)(iii), and the implementing regulation which requires the furnishing of “appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 C.F.R. § 36.303(c)(1)?

3. Did the panel majority unnecessarily hold that websites per se are not “places of public accommodation” under the ADA, where:

(a) the district court explicitly declined to decide the issue,

and

(b) the panel indicates that it agrees that its holding is unnecessary and is not required for resolution of this appeal?

See United States v. McAllister, 77 F.3d 387, 389 (11th Cir. 1996), cert. denied, 519 U.S. 905 (1996); United States v. Strickland, 682 Fed. Appx. 742, 743 (11th Cir. 2017); United States v. Lewis, 115 F.3d 1531, 1539 (11th Cir. 1997).

4. When the challenged three-year injunction expired post-argument, prior to issuance of the panel opinion, did this appeal become moot?

Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013).

David Ferleger
April 15, 2021

ATTORNEY OF RECORD

PROCEEDINGS

Juan Carlos Gil is visually impaired and has a qualified disability under the Americans with Disabilities Act (“ADA”). He lives in Miami. Gil’s inability to see a computer screen does not prevent him from using a properly formatted website when assisted by screen reading software.

He has been a customer of Winn-Dixie for many years. Dist.Ct. Doc 63.

Winn-Dixie is the owner and operator of a regional chain of grocery stores located in the Southeastern United States. (D.E. 34 at 4). Winn-Dixie has 495 stores throughout Florida, Georgia, Alabama, Louisiana, and Mississippi, some of which have pharmacies. (Id.; D.E. 65 85:2-6.).

As an entrée to its brick and mortar locations, Winn-Dixie maintains a website at www.winndixie.com. At the time of trial, the website was not accessible to the blind.

On July 12, 2016, Gil filed a Complaint against Winn-Dixie pursuant to Title III of the ADA, 42 U.S.C. § 12182, alleging that Winn-Dixie’s website was inaccessible to the visually impaired and requested declaratory and injunctive relief.

On June 5 and 6, 2017, the district court held a non-jury trial, heard testimony from several witnesses, and considered other evidence.

On June 12, 2017, the court entered its Verdict and Order Following Non-Jury Trial (Doc. 63) (“Verdict”), finding that, in violation of the ADA,

“the inaccessibility of the Website has denied Gil the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations that Winn-Dixie offers to sighted individuals.”

(Verdict at 10).1

As the Court put it,

“Web accessibility is about ensuring that all people are able to use the web regardless of any physical and mental disabilities.”

(Verdict at 6).

The Court found that remediation of the Website was readily achievable and reasonable.

Since Winn-Dixie did not offer any alternative standard, and the company acknowledged that it intended to comply with the only standard advanced by any party at trial, the Court ordered Winn-Dixie to undertake remediation measures on its Website in conformity with the industry-consensus Web Content Accessibility Guidelines (WCAG).

(Verdict at 11).

On July 6, 2017, the district court entered an Order and Injunction as well as (Final) Judgment in favor of Gil and against Winn-Dixie. (Doc. 67, 68).

The district court’s July 5, 2017 Verdict and Injunction (D.Ct., Doc. 67) enjoined that Winn- Dixie’s website be made accessible under the ADA.

The injunction order states, “this Injunction will expire in three years,” i.e., July 5, 2020.

1 Title III of the ADA prohibits discrimination by public accommodations, entitling individuals with disabilities to “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. §12182(a); 28 C.F.R. § 36.201(a). Such discrimination can occur in several ways, including denial of participation (42 U.S.C. § 12182(b)(1)(A)(i); 28 C.F.R. § 36.202(a)), affording an unequal benefit (42 U.S.C.12182(b)(1)(A)(ii); 26 C.F.R. § 36.202(b)), or failure to make changes to existing access barriers or policies. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302(a).

On July 31, 2017, Winn-Dixie noted its appeal. The appeal was argued before a panel of this Court on October 4, 2018.

The injunction expired 21 months later, on July 5, 2020.

The panel issued its decision on April 5, 2021, over a dissent. 2021 U.S. App. LEXIS 10024; 2021 WL 1289906; F.3d .

(Hon. Elizabeth L. Branch for the majority, with visiting judge, Hon. Chief Judge Danny C. Reeves (E.D. Ky)), Hon. Jill A. Pryor authored the dissent.

On April 9, 2021, the Court ordered:

“A judge of this Court withholds issuance of the mandate in this appeal.”

 

PETITION FOR REHEARING EN BANC

Plaintiff-Appellee Juan Carlos Gil (“Gil”) respectfully petitions this Honorable Court to rehear this case en banc. The appeal is moot; the underlying time-limited injunction expired months after oral argument here and there is no Article III case or controversy. If the appeal is not dismissed, the panel decision should be vacated, and the decision below affirmed..

Reasons for en banc rehearing include:

1. Contradicting this Court’s established law, the panel majority abandoned the “nexus” standard for determining whether the ADA applies to a public accommodation’s website. (Section I).

2. The majority’s new precedent on when a public accommodation’s website is subject to the ADA deviates from the plain text of the remedial statute and offers the least protection from discrimination of any circuit. (Section II).

3. In this case regarding discrimination against blind internet users, the majority’s standard of comparison (“a sighted customer who does not have internet access”) contradicts the standard established in A.L. v. Walt Disney Parks & Resorts US, Inc., and Silva v. Baptist Health S. Fla., Inc. (Section III).

4. The panel majority unnecessarily held that websites per se are not “places of public accommodation.” Twice the district court explicitly declined to decide that issue and the panel indicates that that holding is not required for resolution of this appeal. (Section IV).

5. This case is moot. The challenged injunction expired last year, leaving no Article III case or controversy between the parties. (Section V).

ARGUMENT

I. CONTRADICTING THIS COURT’S ESTABLISHED LAW, THE PANEL MAJORITY ABANDONED THE “NEXUS” STANDARD.

Contradicting this Court’s established law, the panel majority abandoned the “nexus” standard for determining if there is a sufficient connection between a place of public accommodation’s physical site and a good, service, facility, privilege, advantage, or accommodation it provides outside of its physical site (such as its website) such that the offering is subject to the ADA.. Maj. Op. at 25 (“And we decline to adopt a ‘nexus’ standard here, as we find no basis for it in the statute or in our precedent.”).

The district court utilized the familiar governing nexus standard.

This Court’s prior adoption of the “nexus” approach cannot reasonably be doubted.

Rendon v. Valleycrest Prods., 294 F.3d 1279 (11th Cir. 2002).

This Court and the district courts within it have relied on the “nexus” standard in adjudicating similar issues.

E.g., Haynes v. Dunkin’ Donuts, LLC, 741 Fed. App’x 752, 754 (11th Cir. 2018) (citing Rendon 294 F.3d at 1283);

Access Now v. Southwest Airlines, 227 F. Supp. 2d 1312, 1320 (S.D. Fla. 2002)

(holding Rendon found “‘a nexus between the challenged service and the premises of the public accommodation’”) (emphasis added);

Haynes v. Pollo Operations, Inc., 2018 U.S. Dist. LEXIS 51748, *5, 2018 WL 1523421, *2 (S.D. Fla. 2018)

(Rendon’s “holding relied on cases that ‘require[d] a nexus between the challenged service and the premises of the public accommodation’ and noting that “a majority” of courts in 11th Circuit follow the nexus approach) (internal citations omitted and emphasis added);

Haynes v. Kohl’s Dep’t Stores, Inc., 391 F. Supp. 3d 1128, 1134 (S.D. Fla. 2018)

(“Thus, in the Eleventh Circuit, ‘websites are subject to the ADA if a plaintiff can establish a nexus between the website and the physical premises of a public accommodation. Indeed, this concept has support in Rendon . . . .’”) (internal citations omitted and emphasis added);

Fuller v. Mazal Group LLC, 2018 U.S. Dist. LEXIS 129969, *8, Plaintiff has sufficiently pleaded a nexus between Defendant’s website and its physical stores.”).

Nationally, courts also recognize that the nexus approach has a home in 11th Circuit law and in their own law.2

Even if the nexus standard was not established in Rendon with sufficient clarity (we believe it was), it is an extraordinarily important issue, particularly in

2 E.g., Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 (3d Cir. 1998)

(plaintiff failed to allege a nexus between the place of public accommodation and the insurance benefits offered by the employer);

Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000)

(“some connection between the good or service complained of and an actual physical place is required”);

Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946, 952 (N.D. Cal. 2006)

(“courts have held that a plaintiff must allege that there is a ‘nexus’ between the challenged service and the place of public accommodation.”);

Castillo v. Jo-Ann Stores, LLC, 286 F. Supp. 3d 870, 881 (N.D. Ohio 2018)

(“Castillo has sufficiently alleged a nexus between Jo-Ann’s website and its brick-and-mortar stores. Therefore, the Court need not determine whether Jo-Ann’s website is itself a place of public accommodation.”);

Young v. Facebook, Inc., 790 F. Supp. 2d 1110, 1114-16 (N.D. Cal. 2011)

(no nexus between the website and a physical location);

Jancik v. Redbox Automated Retail, LLC, No. SACV 13-1387-DOC (RNBx), 2014 U.S. Dist. LEXIS 67223, 2014 WL 1920751, at *8-9 (C.D. Cal. May 14, 2014)

(not a sufficient nexus between the website and physical kiosks);

Dominguez v. Banana Republic, LLC, 2020 U.S. Dist. LEXIS 72193, *22, 2020 WL 1950496, *8 (S.D.N.Y. 2020)

(“factors that district courts in the Eleventh Circuit consider in determining whether a website has a sufficient nexus to the physical store”) (emphasis added);

Carroll v. Fed Financial Fed. Credit Union, 324 F. Supp. 3d 658, 665 (E.D. Va. 2018)

(“District courts in the Eleventh Circuit have similarly held that websites are subject to the ADA if a plaintiff can establish a nexus between the website and the physical premises of a public accommodation.”).

light of the current pandemic and the general movement of personal and commercial interactions online.3

The district court did not err in adopting the nexus, or gateway, lens through which to view the Winn-Dixie website. The panel majority’s shattering that lens is bound to cause confusion in the district courts. Therefore, the Court should VACATE the panel majority’s improvident negation of the nexus standard.4

For example, Winn-Dixie’s website is now offering even more things online than it did in 2017 (the majority opinion speaks to 2017 only).

Winn-Dixie now sells products online, and offers delivery online. Winn-Dixie is offering COVID-19 vaccines in Florida with online scheduling , and says

Please note: vaccination appointments can only be made online at this moment. Appointments cannot be made by calling Winn-Dixie or the Winn-Dixie pharmacy.”

https://www.winndixie.com/pharmacy/covid-vaccine ).

The Court may take judicial notice of Winn-Dixie’s current website. See Fed. R. Evid. 201.

This Court has relied on a party’s own website.

K.T. v. Royal Caribbean Cruises, Ltd., 931 F.3d 1041 (11th Cir. 2019).

Other courts have also found it appropriate to take judicial notice of a party’s website. E.g.,

In re UBS Auction Rate Securities Litigation, No. 08 Civ 2967 (LMM), 2010 U.S. Dist. LEXIS 59024, 2010 WL 2541166, *15 (S.D.N.Y. June 10, 2010)

(“[I]t is appropriate to take judicial notice of the contents of a party’s website”);

Doron Precision Systems, Inc. v. FAAC, Inc., 423 F.Supp.2d 173, 179 n. 8 (S.D.N.Y. 2006); Monsanto Co. v.

PacifiCorp, No. CV 01-607 E LMB, 2006 U.S. Dist. LEXIS 27565, 2006 WL

1128226, *8 n. 4 (D. Idaho Apr. 24, 2006).

4 The dissent provides a workable standard which is consistent with the nexus approach and which Plaintiff would support under governing Circuit law. The dissent states, “we need only apply the statutory text and ask whether such a website’s incompatibility with screen-reading software prevents disabled customers from fully and equally enjoying the offerings of a place of public accommodation. See 42 U.S.C. § 12182(a).

Dissent at 65, n.14.

If a website triggers Title III compliance because of its functioning as a gateway to, or extension of, the physical space, then it is obligated to ensure, in the dissent’s words, that its “disabled customers [are] fully and equally enjoying the offerings of a place of public accommodation.

See 42 U.S.C. § 12182(a).” Id.

II. WINN-DIXIE’S VIOLATION OF THE STATUTE AND REGULATION IS CLEAR. THE MAJORITY’S CONCLUSION OTHERWISE REDUCES THE ACCESSIBILITY REQUIREMENTS TO NAUGHT.

Winn-Dixie’s violation of the statute and regulation is clear. The majority reduces the accessibility requirements to naught.

The comparison group used by the majority contradicts the established standard in A.L. by and through D.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270, 1294–95 (11th Cir. 2018); Silva v. Baptist Health S. Fla., Inc., 856 F.3d 824, 834 (11th Cir. 2017).

The dissent persuasively describes how Winn-Dixie violates both the provision of Title III which prohibits “different treatment,” 42 U.S.C. § 12182(b)(2)(A)(iii), and the regulation which requires the furnishing of “appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 C.F.R. § 36.303(c)(1).

Without seeking here to set forth the full depth of the dissent’s analysis, its essence perhaps is this:

Winn-Dixie does not dispute that it failed to provide an auxiliary aid when it refused to make its website compatible with screen-reading technology. As a result, visually-impaired individuals could not access the website.

And Winn-Dixie provided no alternative way for them to request express prescription refills or digitally link coupons to their rewards cards so that discounts could be applied seamlessly at checkout—privileges and advantages that sighted customers enjoyed.

That conduct amounted to discrimination under § 12182(b)(2)(A)(iii) and was therefore prohibited by § 12182(a).

Dissent at 34.

The panel majority repeatedly emphasizes that the Winn-Dixie website – as of 2017 – did not permit its use to buy any products or services; it was not a “gateway” or connection to, entrée or “nexus” to the bricks-and-mortar Winn-Dixie grocery store.5

That “fact” is then used by the majority as the basis both for finding no discrimination and for the panel’s rejection of this Circuit’s established law that a website which is a gateway, connection to, entrée or “nexus” to a brick-and-mortar place.

It is indeed an extraordinary, new, unprecedented, and harmful rule announced by the majority opinion — a rule which reduces the accessibility requirements to naught.

“On the facts of this case,” we are told, ADA access applies only “in the physical stores” of Winn-Dixie:

. . .we hold that the absence of auxiliary aids [absence of screen- reader]on Winn-Dixie’s website does not act as an intangible barrier that results in Gil being discriminatorily “excluded, denied services, segregated or otherwise treated differently than other individuals” in the physical stores—the operative place of public accommodation— because of the absence of auxiliary aids and services as contemplated by the ADA. 42 U.S.C. § 12182(b)(2)(A)(iii).

Rather, we conclude that,

5 The panel majority reaches this conclusion even though prescription-ordering or coupon-facilitation as an ADA-covered “service” to the customer is available only through the website.

on the facts of this case, Gil is able to enjoy fully and equally “the goods, services, facilities, privileges, advantages, or accommodations of” Winn-Dixie’s physical stores as contemplated by Title III of the ADA. Id. § 12182(a).
Maj. Op. at 31 (emphasis added).

This is disconnected from the circumstances of this case. The panel majority would only hold Winn-Dixie to be ADA-compliant inside its “physical stores,” ignoring that the issue is the inaccessibility to Winn-Dixie’s services and information on its website.

The dissent demonstrates the fallacies and inconsistencies in the panel majority’s approach. Judge Pryor’s opinion is worthy of reframing as a replacement for the panel majority’s opinion.

Accordingly, Plaintiff Gil urges the Court to VACATE the referenced ADA analysis of the majority opinion as unsupported by, and in contradiction to the applicable law.

III. IN THIS CASE REGARDING DISCRIMINATION AGAINST BLIND INTERNET USERS, THE MAJORITY’S STANDARD OF COMPARISON VIOLATES THE STANDARD ESTABLISHED IN A.L. V. WALT DISNEY PARKS & RESORTS US, INC. AND SILVA V. BAPTIST HEALTH S. FLA., INC.

In this case regarding discrimination against blind internet users, the majority’s standard of comparison (“a sighted customer who does not have internet access”) contradicts the standard established in A.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270, 1294-95 (11th Cir. 2018); Silva v. Baptist Health S. Fla., Inc., 856 F.3d 824, 834 (11th Cir. 2017) (a non-disabled person accessing the website).

What are the comparison groups for “equal opportunity” under Title III?

“The ADA “focus[es] on equal opportunity [for the disabled] to participate in or benefit from the defendant’s goods and services,” A.L. by and through D.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270, 1294–95 (11th Cir. 2018) (“A.L.”) (emphasis added).

The majority opinion holds that the proper comparison is between a blind customer seeking website access and a “sighted customer who does not have internet access.”

The correct comparison under Title III is between a blind person seeking access to the website, and a non-disabled customer WITH internet access seeking access to the website. Gil’s access to the website was not substantially equal to that afforded non-disabled customers.

IV. THE PANEL DECISION OF A “PRIMARY” ISSUE WHICH WAS – TWICE – NOT DECIDED BY THE DISTRICT COURT, WAS AN ERROR OF EXCEPTIONAL IMPORTANCE IN THE CIRCUMSTANCES OF THIS CASE.

The panel majority characterized this as the first “primary” issue on this appeal: “pursuant to the plain language of Title III of the ADA, public accommodations are limited to actual, physical places.

Necessarily then, we hold that websites are not a place of public accommodation under Title III of the ADA.” Maj. Op. 17-18 (footnotes omitted).

This panel decision appears to be the only decision by this Court or by any district court in the Eleventh Circuit which per se excludes websites from being “public accommodations” under the ADA.6

This decision was unrestrained by the principle of not deciding issues which the district court did not decide as well as the principle of not deciding issues not adversarially litigated below.

The panel majority accepts that the district court twice – before and after trial – explicitly did not decide the question, because it did not need to.

Maj. Op. at 12, n.8; see Gil, 242 F. Supp. 3d at 1319 (on motion for judgment on the pleadings; court “need not determine whether Winn-Dixie’s website is a public accommodation in and of itself.”); Gil, 257 F. Supp. 3d 1340 (S.D. Fla. 2017) (verdict after trial; same).

Gil’s brief in this appeal did not address the question of whether websites are covered by the ADA as places of public accommodation. “Moreover, Gil flatly denied that he was raising the issue when asked about it at oral argument.”

Dissent at 36, n. 1.

The Court teaches, “[a]s a general rule, this court will not address an issue not decided by the district court.”

United States v. McAllister, 77 F.3d 387, 389 (11th Cir. 1996), cert. denied, 519 U.S. 905 (1996); United States v. Strickland,
682 Fed. App’x 742, 743 (11th Cir. 2017); United States v. Lewis, 115 F.3d 1531, 1539 (11th Cir. 1997).

Judge Pryor’s dissent explained why the judicial restraint

6 The holding is in conflict with the import of this Court’s other website accessibility decisions under the ADA. E.g., Haynes v. Dunkin’ Donuts LLC, 741 Fed. App’x 752 (11th Cir. 2018); Haynes v. Hooters of Am., LLC, 893 F.3d 781 (11th Cir. 2018); Kennedy v. Siesta Inn & Suites, Inc., 828 Fed. App’x 658 (11th Cir. 2020).

called for is particularly beneficial to reasoned informed decision when the court below has not decided an issue and the issue is not litigated on appeal. Dissent at 35-36, n. 1.

Accordingly, Appellee Gil respectfully urges that this holding of the panel majority opinion be VACATED.

V. THIS CASE IS MOOT. THERE IS NO LONGER ANY ARTICLE III CASE OR CONTROVERSY.

This case is moot. The challenged injunction expired last year, and there is no longer any Article III case or controversy between the parties. Therefore, this appeal is due to be dismissed as moot.

The district court’s July 5, 2017 Verdict and Injunction (D.Ct., Doc. 67), ] required Winn-Dixie’s website to be accessible for three years. The injunction order states, “this Injunction will expire in three years.” July 5, 2017 Order, ¶9.

There is no dispute that an Article III case or controversy existed between the parties at the time the underlying lawsuit was filed, and continued through the entry of Verdict, and up to the time that the injunction expired on July 5, 5020.7

Winn-Dixie has no obligation under the injunction to Gil, Gil no longer has any claim against Winn-Dixie for compliance.

7 On May 28, 2020, Plaintiff notified Winn-Dixie that he “believe[d] that the July 5, 2017 injunction in this case ha[d] been violated by Winn-Dixie” and specified several specific concerns. He filed a motion to extend the injunction. (D.Ct. Doc. 86, filed June 24, 2020). Under the injunction, Winn-Dixie had 30 days to investigate and correct the violations. Doc. 67 at ¶8. The concerns were resolved and on June 25, 2020, Plaintiff withdrew the motion filed before the district court. (D.Ct. Doc 89).

“In our system of government, courts have ‘no business’ deciding legal disputes or expounding on law in the absence of a case or controversy.”

Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013) (citation omitted).

“We have repeatedly held that an ‘actual controversy’ must exist not only ‘at the time the complaint is filed,’ but through ‘all stages” of the litigation.’”

Id. at 90-91 (citations omitted).8

Accordingly, Plaintiff Gil respectfully urges that this appeal be dismissed as moot, and the order below affirmed.9

8 See Kremens v. Bartley, 431 U.S. 119, 134, n. 15 (1977) (“The availability of thoroughly prepared attorneys to argue both sides of a constitutional question, and of numerous amici curiae ready to assist in the decisional process, even though all of them “stand like greyhounds in the slips, straining upon the start,” does not dispense with the requirement that there be a live dispute between “live” parties before we decide such a question.”).

9 This was not a suit for damages. With regard to attorneys’ fees under the ADA, interest in such fees do not create an Article III case or controversy. Thole v. U. S. Bank N.A, 140 S. Ct. 1615, 1619 (2020).

CONCLUSION

For the above reasons, Plaintiff-Appellee Gil respectfully petitions this Honorable Court to grant hearing en banc. If the appeal is not dismissed as moot, the majority opinion should be vacated and the decision below affirmed.

Respectfully submitted,

Gil v. Winn-Dixie Stores, Inc.,

No. 17-13467-CC

(11th Cir. Dec. 28, 2021)

17-13467-CC

12-28-2021

JUAN CARLOS GIL, Plaintiff-Appellee, v. WINN -DIXIE STORES, INC., Defendant-Appellant.

PER CURIAM.

Appeal from the United States District Court for the Southern District of Florida

BEFORE: JILL PRYOR, BRANCH, Circuit Judges, and REEVES, District Judge.*

PER CURIAM.

The Petition for Panel Rehearing filed by Appellee Juan Carlos Gil is GRANTED. Due to the expiration of the injunction while the appeal was pending and the absence of any formal award of declaratory relief, the appeal was rendered moot.

“A moot case is nonjusticiable and Article III courts lack jurisdiction to entertain it.”

Troiano v. Supervisor of Elections in Palm Beach Cnty., Fla., 382 F.3d 1276, 1281 (11th Cir. 2004).

Accordingly, we vacate our opinion and the underlying judgment, dismiss the appeal, and remand for the district court to dismiss the case as moot.

*Honorable Danny C. Reeves, United States District Chief Judge for the Eastern District of Kentucky, sitting by designation.

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Appellate Circuit

God Goes in Front of Me and Makes the Crooked Straight and I Get to Keep My Pension

Ex-Inmate and Former Congresswoman Corrine Brown is Confident of Her Plea Deal Keepin’ Her out of Jail and Ending Her Criminal Case.

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Former congresswoman Corrine Brown to take plea deal
Brown faced retrial this fall on federal fraud charges

May 17, 2021 | REPUBLISHED BY LIT: May 17, 2022

JACKSONVILLE, Fla. – Former congresswoman Corrine Brown is set to change her plea Wednesday in a federal case that involves charges of fraud and conspiracy, avoiding a retrial that was scheduled to take place this fall.

Tuesday morning, News4JAX reporter Jim Piggott spoke with Corrine Brown by phone. She said everything will come out in court tomorrow.

“I want you to know, God has been good to me,”

Brown said.

“I just talked to my pastor and I know that He goes in front of me and make the crooked straight. That’s all I can tell you, He’s good.”

Former U.S. Rep. Corrine Brown is set to change her plea Wednesday in a federal case that involves charges of fraud and conspiracy, avoiding a retrial that was scheduled to take place this fall.

Brown was indicted in 2016 on charges that included conspiracy, wire fraud, and tax fraud, on accusations that she used contributions to the One Door for Education charity for personal expenses.

Brown was convicted on some of the charges in May 2017, and began a five-year prison sentence in January 2018. Brown was released in April 2020, due to coronavirus concerns.

Following her conviction, Brown appealed the guilty verdict, arguing the trial judge wasn’t justified in replacing a juror who said the Holy Spirit told him Brown was not guilty.

A three-judge panel of the 11th Circuit of the U.S. Court of Appeals initially upheld Brown’s conviction.

Brown’s attorneys then asked for a rehearing before the full 11th Circuit, known as an “en banc” hearing. In May 2021, the appellate court reversed the conviction with a 7-4 decision, sending the case back to the district court for a potential retrial.

In October 2021, we learned that prosecutors planned to re-try Brown on the felony counts she faced in her 2017 trial.

At the time, we learned prosecutors had already extended her a plea deal to avoid being retried and the possibility of a return to prison, an offer she rejected at the time.

Following the appointment of a new defense team, Brown’s retrial was set to take place in September of 2022.

News4JAX Jim Piggott spoke with attorney Curtis Fallgatter,

“(Jim) Are you surprised at all?

(Curtis) A little bit, but not terribly because of the age of the case, the complexity of the case, the number of issues, reversal on appeal issues about a retrial, can I get a conviction, the age of Brown.”

The court document indicating that Brown will be changing her plea does not indicate what charges she may be pleading guilty to, or what sentence could potentially be imposed.

Fallgatter doesn’t believe Brown will serve any additional time.

He said she would not agree to that, and the agreement should be an end to the case.

Brown is getting her pension, and that likely will not change.

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Bankers

When the World’s Bankers and Governments Are Behavin’ Like Thieves and Criminals, It Really Is Time to Object, Vociferously

The appalling greed and corruption is playing out live since 2008 and without any accountability to the people. One Percenters are completely immune and laughing At You.

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Ukrainian who made appearance in Trump impeachment saga accused by U.S. of stealing, laundering billions

AUG 6, 2020 | REPUBLISHED BY LIT: MAY 17, 2022

The Justice Department on Thursday accused a Ukrainian oligarch who has been considered an ally of Ukraine’s president of stealing billions of dollars from a bank he once owned, then using a vast array of companies to launder that money in the United States and all over the world.

In a civil forfeiture complaint seeking to seize commercial properties in Kentucky and Texas, the Justice Department alleged that Ihor Kolomoisky and his business partner, Gennadiy Boholiubov, stole so much from PrivatBank that Ukraine’s national bank had to give the institution a $5.5 billion bailout “to stave off economic crisis for the whole country.”

Kolomoisky, one of Ukraine’s richest men, has ties to Ukrainian President Volodymyr Zelensky, and he played a role in the events that led to President Trump’s impeachment last year. He made a fortune in the rough-and-tumble capitalism that swept Ukraine after the Soviet Union’s collapse, amassing assets including airlines and financial institutions, and created a larger-than-life image for himself, going by the nickname “Benya,” and keeping a shark aquarium in his office.

Kolomoisky and Boholiubov were the two major owners of PrivatBank before it was nationalized in response to the fraud, the Justice Department said, and the men basically used it as a personal account to build a business empire in the United States. They requested money from PrivatBank — which they always received because they were owners — then moved the funds through a network of companies to “thoroughly disguise their nature, source, ownership, and control,” the Justice Department alleged.

Experts have expressed increasing concern that U.S. real estate — including factories and facilities important to American industry — has become a magnet for foreign money, including proceeds of criminal activities abroad. Among Kolomoisky’s and Boholiubov’s purchases were more than 5 million square feet of commercial real estate in Ohio; steel plants in Kentucky, West Virginia and Michigan; a cellphone manufacturing plant in Illinois; and commercial real estate in Texas, the Justice Department alleged. The forfeiture complaints sought to seize a roughly 19.5-acre office park in Dallas and the PNC Plaza building in Louisville.

Michael J. Sullivan, a lawyer for Kolomoisky, said in an email: “Mr. Kolomoisky emphatically denies the allegations in the complaints filed by the Department of Justice.” The allegations, which are not criminal charges, are similar to those in a lawsuit filed by the bank in a Delaware court. A lawyer for Boholiubov did not reply to an email seeking comment.

In a statement written in Russian, Kolomoisky said all the money used to purchase the U.S. properties was his own, received through a deal made with a mining company in 2007 and 2008 and from other businesses that banked with Privatbank.

Kolomoisky also has long been facing a criminal probe by the U.S. attorney’s office in Cleveland for possible money laundering. As a part of that case, the FBI raided the office of Optima Management Group in downtown Cleveland on Tuesday, as well as an Optima office in the Southeast Financial Center building in Miami.

In court documents, the Justice Department alleged Thursday that two Miami-based business associates of Kolomoisky and Boholiubov’s — Mordechai Korf and Uriel Laber — helped acquire and manage the oligarchs’ holdings in the United States, which often bear some version of the name “Optima.” Optima Ventures at one point became the “largest holder of commercial real estate in Cleveland,” using stolen funds to buy major downtown office buildings and a hotel, the Justice Department alleged.

Last year, Marc Kasowitz, a New York lawyer who also represents Trump, signed on to represent Kolomoisky and Boholiubov in the Delaware case. He did not immediately respond to a request for comment Thursday.

Under Ukraine’s last president, Petro Poroshenko, the government nationalized Privatbank, alleging that Kolomoisky and one of his business partners had defrauded the bank of billions of dollars. Kolomoisky denied those charges but decamped from Kyiv to Israel, where he also holds citizenship. He retained political power in Ukraine through his business holdings, which include a major Ukrainian television station.

Kolomoisky is seen as an ally to Zelensky, who was an actor before his election, starring in a comedy show that aired on Kolomoisky’s network. Zelensky’s election was widely seen as a boon for Kolomoisky, particularly after the new president made Kolomoisky’s personal lawyer the head of his administration. Some in the United States were suspicious of Zelensky’s ties to the mogul, thinking the connection ran counter to Zelensky’s promises to pursue an anti-corruption and reformist agenda.

Since then, however, Zelensky has not supported returning control of Privatbank to the oligarch, and he fired that top aide. Still, Kolomoisky has been comfortable enough with Ukraine’s current leadership that he returned from a self-imposed exile in Tel Aviv and is again based in Kyiv, where he maintains connections to members of the presidential administration.

In spring 2019, when Trump’s personal attorney Rudolph W. Giuliani embarked on a mission to press Zelensky to assist Trump by opening politically charged investigations into former vice president Joe Biden and his son, Giuliani’s associates met with Kolomoisky to request that Giuliani get a sit-down with the rising Ukrainian politician.

Giuliani associates Lev Parnas and Igor Fruman met with Kolomoisky in April 2019 in Tel Aviv, and, by all accounts, the meeting did not go well.

Giuliani associates claimed to have sway with both foreign billionaires and Trump administration officials

After the meeting, the two ­Florida-based business executives accused Kolomoisky of physically threatening them and filed a lawsuit against him in Ukraine. Parnas and Fruman, who assisted Giuliani in his Ukraine project, were charged in the United States with campaign finance violations last year. They have denied any wrongdoing.

Giuliani has said he provided legal advice to Parnas and Fruman in their fight against Kolomoisky. He also tweeted repeatedly about his displeasure with Kolomoisky in May 2019 just as he was pressuring Zelensky to assist Trump with a Biden investigation. At one point, Giuliani complained that Zelensky was being advised by “Kolomoisky’s representatives and enemies of President Trump.”

Meanwhile, a lawyer for Kolomoisky has told The Post that during the Tel Aviv meeting, Parnas and Fruman claimed that they could get top U.S. officials, including Vice President Pence and then-Energy Secretary Rick Perry, to travel to Ukraine around the time of Zelensky’s May 2019 inauguration — if Kolomoisky paid them several hundred thousand dollars. Kolomoisky did not pay the money, instead throwing the two men out of his office, his lawyer has said.

The attorney, Bruce Marks, told The Post that Kolomoisky had predicted to friends at the time: “This is going to end up in a bad scandal.”

Ukraine arrests ex-PrivatBank official as U.S. prioritizes criminal probe of former owners

FEB 26, 2021 | REPUBLISHED BY LIT: MAY 17, 2022

The National Anticorruption Bureau of Ukraine (NABU) has arrested the former deputy chairman of a Ukrainian bank at the heart of an FBI criminal investigation as he attempted to fly abroad in the latest sign Kyiv is taking steps to tackle corruption and lawlessness.

Volodymyr Yatsenko was detained at Boryspil Airport in Kyiv on February 22 after investigators forced the pilot of the private jet he was traveling on to land, the bureau announced in a tweet.

Mr. Yatsenko, who was on his way to Vienna after reportedly being tipped off about his arrest, was charged with the embezzlement of funds at PrivatBank, once the nation’s largest lender.

More arrests of management could follow, the Kyiv Post reported.

The FBI is investigating the two owners of PrivatBank – Ihor Kolomoisky and Gennadiy Boholiubov – in connection with accusations that more than $5 billion was stolen from the lender through fraudulent loans and that the money was then laundered.

In a move that made international headlines, Ukraine was forced to nationalize PrivatBank in 2016 and pump more than $5 billion into the lender in order to stave off its bankruptcy.

The U.S. accuses Messrs. Kolomoisky and Boholiubov of using some of the laundered proceeds to buy assets in the U. S., ranging from metals companies to commercial properties, with the help of two American associates based in Miami.

The Justice Department last year filed three civil forfeiture lawsuits in a Florida court against a U.S. real estate holding controlled by the two tycoons and run by the associates.

However, a judge agreed last week with a Justice Department request to temporarily suspend the civil forfeiture proceedings amid concerns it could harm the criminal investigation against the Ukrainian businessmen and their two American partners.

“Allowing [the tycoons] to conduct discovery would expose the identities of witnesses who have provided and will provide information and testimony in both the civil forfeiture actions and the criminal investigation,” the Justice Department said in its February 19 filing.

“If that occurs, the confidential informants may cease providing information, and, to the extent they are not reachable through process in the United States, they may make themselves unavailable for future testimony. Potential sources of information who have not yet been interviewed by the government would likely be deterred from coming forward” the Justice Department said in its filing.

The tycoons deny the accusations and neither Ukraine nor the United States has filed criminal charges against them.

Mr. Kolomoisky is one of the most influential tycoons in Ukraine and the U.S. government’s investigation into his activities is being closely followed.

The billionaire owns key media, energy, and metals assets and is believed to have outsized influence over the administration of President Volodymyr Zelenskyy.

Mr. Kolomoisky’s TV stations backed Mr. Zelenskyy’s successful presidential bid.

The U.S., one of Ukraine’s biggest backers financially and militarily, has repeatedly expressed concern about oligarchic influence over the nation’s government and economy.

Washington has also complained about the lack of investigations into corrupt tycoons and officials and has tied some aid to improvements in judicial reform.

The arrest of Mr. Yatsenko, who was flying on a private plane owned by Mr. Kolomoisky, is the latest in a series of moves by Kyiv to tackle cases that resonate with the U.S.

Mr. Zelenskyy last week approved sanctions on Viktor Medvedchuk, a tycoon and lawmaker with close ties to Russian President Vladimir Putin. Mr. Medvedchuk was sanctioned by the U.S. in 2014 for undermining democracy in Ukraine.

On February 2, Mr. Zelenskyy sanctioned three television stations believed to be owned by Mr. Medvedchuk. In late January he announced an investigation into Ukrainian individuals accused of interfering in the 2020 U.S. presidential elections.

The moves come after President Joe Biden was inaugurated on January 20. Mr. Biden knows Ukraine well, having served as the point man to Kyiv while serving as vice president from 2009 to 2017.

Political analysts say Mr. Zelenskyy is seeking to win over the Biden administration after a difficult relationship with the Trump administration caused by the 2019 impeachment investigation.

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Bankers

In 2008 Two Ukrainians Would Plan to Steal over $5.5B from their Private Bank and Launder Wads Via Miami

The DOJ Press Release combined with the 11th Cir. opinion and district court cases in Southern Fl. are well worth the read if you want to learn about power, politics, corruption to avoid jail.

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United States Files Civil Forfeiture Complaint for Proceeds of Alleged Fraud and Theft from PrivatBank in Ukraine

JAN 20, 2022 | REPUBLISHED BY LIT: MAY 17, 2022

The United States filed a civil forfeiture complaint today in the U.S. District Court for the Southern District of Florida alleging that more than $6 million in proceeds from the sale of commercial real estate in Dallas, Texas, which property was maintained and improved using the proceeds of embezzlement and fraud from PrivatBank in Ukraine, are subject to forfeiture based on violations of federal money laundering statutes.

This civil forfeiture action is the fourth such action filed in connection with the same alleged criminal activity.

In August 2020, the United States filed two actions in the Southern District of Florida alleging that commercial real estate in Dallas and Louisville, Kentucky, was acquired using funds illegally obtained from PrivatBank in Ukraine as part of a multibillion-dollar fraudulent loan scheme.

It filed a third suit in the same district in December 2020 alleging a property in Cleveland, Ohio, was similarly involved.

The four complaints allege that Ihor Kolomoisky and Gennadiy Boholiubov, who owned PrivatBank, one of the largest banks in Ukraine, embezzled and defrauded the bank of billions of dollars.

The two allegedly obtained fraudulent loans and lines of credit from approximately 2008 through 2016, when the scheme was uncovered and the bank was nationalized by the National Bank of Ukraine.

The complaints allege that they laundered a portion of the criminal proceeds using an array of shell companies’ bank accounts, primarily at PrivatBank’s Cyprus branch, before they transferred the funds to the United States.

As alleged in the complaints, Mordechai Korf and Uriel Laber, who were associates of Kolomoisky and Boholiubov operating out of offices in Miami, created a web of entities, usually under some variation of the name “Optima,” to further launder the misappropriated funds.

They purchased hundreds of millions of dollars in real estate and businesses across the country, including commercial towers located at 8787 North Stemmons Freeway in Dallas (Stemmons Towers), which are the subject of this action, as well as the office tower known as 55 Public Square in Cleveland, a Louisville office tower known as PNC Plaza, and a Dallas office park known as the former CompuCom Headquarters.

The newest action alleges that several of the Optima entities, including Optima Ventures LLC, Optima 7171 LLC and Optima Stemmons LLC, used profits from the CompuCom Campus, which had originally been purchased using embezzled funds from PrivatBank, to pay for the improvement and maintenance of Stemmons Towers.

Optima Stemmons then sold Stemmons Towers in 2019 using a seller financing agreement, under which more than $6 million in principal and interest is still owed to a specially-created entity owned by Optima Ventures named 87STE LLC.

The United States seeks to forfeit the promissory note and deed of trust related to that financing agreement, which includes the right to receive payments due pursuant to the deed and its associated sales contract.

Assistant Attorney General Kenneth A. Polite Jr. of the Justice Department’s Criminal Division and Special Agent in Charge Eric B. Smith of the FBI’s Cleveland Field Office made the announcement.

FBI’s Cleveland Field Office is investigating the case with support from FBI’s International Corruption Unit and IRS Criminal Investigation.

Trial Attorneys Shai D. Bronshtein and Rachel Goldstein of the Kleptocracy Asset Recovery Initiative in the Criminal Division’s Money Laundering and Asset Recovery Section are handling these cases.

The Justice Department’s Office of International Affairs has provided substantial assistance in the investigation.

The Kleptocracy Asset Recovery Initiative is led by a team of dedicated prosecutors in the Money Laundering and Asset Recovery Section, in partnership with federal law enforcement agencies, and often with U.S. Attorneys’ Offices, who work to forfeit the proceeds of foreign official corruption and, where appropriate, to use those recovered assets to benefit the people harmed by these acts of corruption and abuse of office.

In 2015, the FBI formed International Corruption Squads across the country to address national and international implications of foreign corruption. Individuals with information about possible proceeds of foreign corruption located in or laundered through the United States should contact federal law enforcement or send an email to kleptocracy@usdoj.gov or https://tips.fbi.gov/.

A civil complaint is merely an allegation, and the government has the burden of establishing that assets are subject to forfeiture by a preponderance of the evidence.

Attachment(s):
Download PrivatBank Stemmons Complaint.pdf

Topic(s):
Financial Fraud
Component(s):
Criminal Division
Criminal – Money Laundering and Asset Recovery Section
Press Release Number:
22-47

United States v. The Promissory Note With a Principal Amount of $5.7 Million, Executed on December 19, 2019 by 8787 Ricchi, LLC, Payable to 87STE Lending LLC

(1:22-cv-20238)

District Court, S.D. Florida

 

Howard Milton Srebnick
Robert Tully Dunlap
Black Srebnick, P.A.
201 S Biscayne Blvd
Ste 1300
Miami, FL 33131

Shai Bronshtein
U.S. Department of Justice,
Criminal Division,
Money Laundering and Asset Recovery Section
1400 New York Ave., N.W.
Washington, DC 20005

In the United States Court of Appeals
For the Eleventh Circuit

[DO NOT PUBLISH – SURE!]

UNITED STATES OF AMERICA,
versus
REAL PROPERTY LOCATED AT 55 PUBLIC SQUARE, CLEVELAND, OHIO, URIEL LABER, et al.,

MAY 17, 2022 | REPUBLISHED BY LIT: MAY 17, 2022

Appeal from the United States District Court for the Southern District of Florida

D.C. Docket Nos. 1:20-cv-23278-MGC, 1:20-cv-25313-MGC

Before ROSENBAUM, JILL PRYOR, and GRANT, Circuit Judges.

PER CURIAM

This case arises out of an in rem civil-forfeiture action filed by the government against an office building in Cleveland, Ohio, allegedly bought as part of an international money-laundering scheme.

When the government filed its complaint, the building was under contract to be sold by the building’s owners (and alleged money-launderers) to an unaffiliated third party.

The government agreed to go forward with the sale while the forfeiture case proceeded, and it filed a motion requesting the court’s approval for an uncontested interlocutory sale under Rule G(7)(b) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture.

The court authorized the sale, which closed in February 2021, and the sale proceeds were substituted for the building as the res in the forfeiture proceeding.

Appellant Law Offices of Cleveland (“Cleveland Law”), a tenant at the office building and a claimant in the forfeiture case, timely appealed the interlocutory sale order, seeking to set aside the sale as “void” for lack of compliance with, in its view, necessary procedural requirements.

After careful review, we conclude that Cleveland Law was not harmed by and so lacks standing to appeal the sale order.

We therefore dismiss the appeal.

I.

In December 2020, the United States filed an in rem civil- forfeiture action against the building located at 55 Public Square in Cleveland, Ohio.

In essence, the complaint alleged that 55 Public Square was purchased as part of a scheme to launder hundreds of millions of dollars misappropriated from PrivatBank, a Ukrainian bank, by two Ukrainian oligarchs, Ihor Kolomoisky and Gennadiy Boholiubov.

The government filed two other forfeiture actions arising out of the same scheme.

Several individuals and businesses claimed an interest in 55 Public Square.

On January 19, 2021, four entities and persons allegedly involved in the money-laundering scheme filed claims:

Optima 55 Public Square LLC, the record owner of the building;

Optima Ventures LLC, which owned Optima 55 Public Square;

and

Mordechai Korf and Uriel Laber, who partially owned Optima Ventures (collectively, the Optima entities).

On January 26, 2021, Cleveland Law, a tenant at 55 Public Square that subleases office space to small law firms and solo practitioners, filed a claim asserting a leasehold interest in the property.

A few days later, several other claimants who had been in litigation against the Optima entities filed a joint claim.

On Tuesday, February 9, 2021, the district court held a status hearing, at which counsel for Cleveland Law was present.

At the hearing, counsel for the Optima entities stated that there was “an anticipated closing on the sale of [55 Public Square] scheduled for … this week,” and that the funds from the sale would be held pending the outcome of the litigation.

The court asked the government if it objected, and counsel for the government responded that it did not object and would soon file a motion to approve the sale.

At no point during the hearing did counsel for Cleveland Law raise an objection to the sale.

Later that same day, the government filed an “Agreed Mo- tion to Authorize Interlocutory Sale” under 18 U.S.C. § 981(a)(1) and Supplemental Rule G(7), with supporting documentary evidence.

In certain circumstances, Supplemental Rule G(7) permits the district court to authorize the sale of real property before the forfeiture case is resolved.

Supp. Rule G(7)(b).

Ordinarily, such a sale “is governed by 28 U.S.C. §[] 2001,” among other provisions, which requires notice, a hearing, and appraisals before the court may approve a private sale.

Supp. Rule G(7)(b)(iii); 28 U.S.C. § 2001(b).

But the court may use other procedures for the sale if “all parties . . . agree to the sale, aspects of the sale, or different procedures.”

Supp. Rule G(7)(b)(iii).

Once the sale closes, the “[s]ale proceeds are a substitute res subject to forfeiture in place of the property that was sold.”

Supp. Rule G(7)(b)(iv).

The government’s motion sought the district court’s approval to proceed with the sale under the terms of the private purchase agreement, and without regard to § 2001, by agreement of the parties.

The government’s evidence showed that, before the forfeiture action, Optima 55 Public Square had entered into a contract with KD 55 Public Square LLC to sell the office building for approximately $17 million.

At that time, the building was in foreclosure and subject to outstanding taxes and penalties.

The government agreed to the sale because the buyer had no affiliation with the Optima entities and, in its view, a “prompt sale [was] the only way to protect the value of the equity in the building.”

According to a copy of the purchase agreement submitted by the government, the sale included the transfer of all leases at 55 Public Square, including “any and all amendments, modifications or supplements.”

The buyer further agreed to “assume[] and . . .be bound by and to perform and observe all of the obligations, covenants, terms and conditions to be performed or observed under the Assigned Property.”

It appears, in other words, that the buyer assumed and agreed to be bound by all existing leases without alteration.

On February 10, 2021, one day after the government filed its motion, Cleveland Law answered the forfeiture complaint.

That filing did not suggest any opposition to the sale.

Rather, Cleveland Law stated that, as an “innocent owner” of a leasehold interest under 18 U.S.C. § 983(d)(6), its permissible remedies included com- pensation “to the extent of Claimant’s ownership interest once a final order of forfeiture has been entered and the property has been reduced to liquid assets.”

The next day, February 11, 2021, the district court granted the “unopposed” motion to approve the interlocutory sale according to the terms of the purchase agreement.

In the weeks that followed, Cleveland Law did not submit any filing to prevent the sale from occurring.

Instead, after the sale closed, Cleveland Law filed a notice of appeal of the sale order on March 1, 2021.1

1 The parties agree, as do we, that an interlocutory order authorizing the immediate sale of real property in a forfeiture case is a collateral order subject to immediate appeal.

See, e.g., United States v. Real Prop. & Residence Located at 4816 Chaffey Lane, 699 3d 956, 959 (6th Cir. 2012)

(exercising jurisdiction over an interlocutory sale order in a forfeiture case under the collateral-order doctrine).

Cf. Citibank, N.A. v. Data Lease Fin. Corp., 645 F.2d 333, 336–38 (5th Cir. May 1981)

(holding that “an order in a foreclosure proceeding that directs the immediate sale of specified property is in all respects a final order for purposes of appeal.”)

II.

Cleveland Law maintains that the private sale of 55 Public Square was “governed by” § 2001 because “all parties” did not “agree to the sale or different procedures” under Supplemental Rule G(7). It notes that the government never sought or obtained its agreement to the sale, despite its status as a claimant in the forfeiture case.

And it contends that the failure to comply with § 2001’s notice, hearing, and appraisal requirements rendered the sale “void” under the former Fifth Circuit’s decision in Acadia Land Co. v. Horuff, 110 F.2d 354, 355 (5th Cir. 1940)

(holding that the failure to comply with statutory notice, hearing, and appraisal requirements rendered a private sale “void because the court was lacking in jurisdiction to confirm it”).2

The government responds that Cleveland Law tacitly agreed to the sale or waived the issue by failing to object below, and that the appeal is moot because the sale to a good-faith purchaser cannot be undone.

It further argues that Cleveland Law was not actually harmed by the sale order, and that the sale would have gone forward in the same way had the government simply waited to initiate a forfeiture case until the sale closed.

Cleveland Law replies that it lacked a meaningful opportunity to object and that this Court can still grant effective relief.

2This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1, Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

III.

After this case was fully briefed, we asked the parties to submit supplemental briefs addressing Cleveland Law’s standing to appeal the interlocutory sale order.

Because standing implicates our jurisdiction, “we are obliged to consider standing sua sponte,” reviewing de novo.

AT&T Mobility, LLC v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 494 F.3d 1356, 1359–60 (11th Cir. 2007).

“Litigants must establish their standing not only to bring claims, but also to appeal judgments.”

Wolff v. Cash 4 Titles, 351 F.3d 1348, 1353 (11th Cir. 2003).

“To have appellate standing, a litigant must establish that he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision.”

United States v. Pavlenko, 921 F.3d 1286, 1289 (11th Cir. 2019).

The injury requirement means that “the appealed order must affect the litigant’s interests in an adverse way.”

Id.; see Knight v. State, 14 F.3d 1534, 1556 (11th Cir. 1994).

In other words, “

[o]nly a litigant who is aggrieved by the judgment or order may appeal.”

Wolff, 351 F.3d at 1354 (cleaned up).

Cleveland Law says it has standing because the sale order “modified [its] ownership interest in the property,” “disrupted its business operations,” and violated its due-process rights in the forfeiture proceeding.

It asserts that, while the sale order “purportedly” transferred its lease agreement, the order “fail[ed] to ensure all lease provisions went undisturbed.”

After the sale closed, according to Cleveland Law, the buyer attempted to terminate the lease agreement and then began converting the building to residential housing, causing significant disruption and violating a lease provision that limited use of the building to commercial purposes only.

The government responds that Cleveland Law lacks standing because the sale order kept Cleveland Law’s rights and remedies under the lease fully intact.

In the government’s view, Cleveland Law’s problems with its new landlord stem from the independent actions of a third party, not the sale order itself, and are “outside the ambit of this case.”

It notes that the court abandoned jurisdiction over the building once the sale proceeds were substituted for the building as the res.

It also contends that Cleveland Law received due process and was not prejudiced by any procedural deprivation because even if due process as Cleveland Law envisions it was entitled to had been afforded, the same result would have occurred.

Cleveland Law replies that the Supreme Court has rejected similar reasoning.

We agree with the government that Cleveland Law lacks standing to appeal.

The sale order did not adversely affect Cleveland Law’s leasehold interest in the property.

That order permitted the sale to go forward under the terms of the purchase agreement, which transferred all existing leases to the buyer.

The record contradicts Cleveland Law’s claim that the sale order failed to incorporate addenda to its lease or to document a few other lease provisions.

Under the purchase agreement, the lease transfer included “any and all amendments, modifications or supplements” to leases, and the buyer “agree[d] to be bound by and to perform and observe all of the obligations, covenants, terms and conditions to be performed or observed.”

So while Cleveland Law’s landlord changed, its lease did not.

Indeed, Cleveland Law did not raise any objection to the sale until after it had closed, indicating that its problem was with the new landlord, not the sale itself.

Cleveland Law therefore has not shown that the sale order affected its property interests in an adverse way.

See Pavlenko, 921 F.3d at 1289.

Nor are Cleveland Law’s grievances with its new landlord sufficient to provide standing to appeal the sale order.

To be sure, Cleveland Law appears to have been injured by the new landlord’s attempt to terminate the lease and disruptive renovations for residential housing, alleged to be in violation of a lease provision limiting use of the building to commercial purposes only.

But those injuries were caused by “the independent action of some third party not before the court,” and are not fairly traceable to the sale order itself.

See United States v. Windsor, 570 U.S. 744, 757 (2013)

(“[T]he injury has to be fairly traceable to the challenged action , and not the result of the independent action of
some third party not before the court.” (cleaned up)).

The sale order did not affect Cleveland Law’s property interest or authorize the buyer to take the actions of which Cleveland Law complains.

And Cleveland Law’s injuries to its use and enjoyment of the property are redressable through an action against that third party.

Cleveland Law fails to explain how undoing the sale and requiring additional procedures under § 2001, related to ensuring a fair sale price, would remedy these injuries.3

See Pavlenko, 921 F.3d at 1289.

3 In its initial briefing, Cleveland Law also cited the protection of 18 U.S.C.§ 985, which states that “the owners or occupants of the real property shall not be evicted from, or otherwise deprived of the use and enjoyment of, real property that is the subject of a pending forfeiture action.”

But as the government points out, that protection “does not apply to forfeitures of the proceeds of the sale of [real property or interests in real property].”

18 U.S.C. § 985(f)(2).

In other words, § 985 no longer applied once the sale of the property closed and the proceeds were substituted as the res.

Finally, Cleveland Law’s alleged due-process injury is not enough on its own to create standing to appeal.

Because Cleveland Law has not shown that the sale order adversely affected its property interest in 55 Public Square, it likewise has not shown that it was harmed by any procedural deficiencies in relation to that order.

For these reasons, we conclude that Cleveland Law lacks standing to appeal the district court’s order authorizing the interlocutory sale of 55 Public Square.

We therefore dismiss the appeal for lack of jurisdiction.4

DISMISSED.

4 The government’s motion for summary affirmance or to dismiss on grounds of mootness is DENIED AS MOOT.

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