Commodity Futures Trading Commission v. Alexandre

Background

Eddy Alexandre, proceeding without a lawyer, filed an emergency motion seeking permission to pursue an interlocutory appeal. An interlocutory appeal is an appeal taken before the district court case is fully finished. The filing concerned two orders:

1. The January 21, 2025, order approving the Receiver’s Distribution Plan. 2. The January 22, 2025, order granting the Commodity Futures Trading Commission’s motion to dismiss Alexandre’s counterclaim and dismissing as moot the Receiver’s motion to strike Alexandre’s contributory-negligence defense as to the Receiver.

Although Alexandre’s filing referred to an appeal from both orders, the court interpreted it as a notice of appeal of those two orders.

Distribution-plan order

The court held that the Court of Appeals could hear an interlocutory appeal from the January 21 order under 28 U.S.C. § 1292(a)(2), which covers certain orders involving receiverships, including orders directing a receiver’s disposition of property. The court therefore concluded that Alexandre was entitled to take an interlocutory appeal of the order and that his notice of appeal had been correctly filed with the district court.

The court separately certified under 28 U.S.C. § 1915(a)(3) that any appeal of the January 21 order would not be taken in good faith if Alexandre sought to proceed without paying the required fees. The court said Alexandre’s opposition to the Distribution Plan consisted mostly of attacks on the CFTC, the Receiver, and the judge and did not present a credible legal or factual basis for appellate consideration.

The court also addressed the filing to the extent it requested a stay of the Receiver’s distributions. A stay pending appeal temporarily pauses enforcement of an order while an appeal is considered. The court discussed the four stay factors, including likelihood of success, potential injury, harm to other parties, and the public interest. It stated that Alexandre was unlikely to succeed because the arguments against the Distribution Plan were not factually or legally sound, and it noted that Alexandre had pleaded guilty to defrauding investors in his criminal case and had no valid claim to the assets to be distributed. The court also stated that delaying investor recoveries would injure investors and that the public had a clear interest in compensating fraud victims.

January 22 order

The court held that an appeal from the January 22 order would be interlocutory. It concluded that 28 U.S.C. § 1292(a) did not give the Court of Appeals jurisdiction over an interlocutory appeal from orders concerning motions to dismiss affirmative defenses. Alexandre therefore could proceed only if the district court certified the order under 28 U.S.C. § 1292(b).

Section 1292(b) requires a controlling legal question, a substantial ground for disagreement about that question, and a finding that an immediate appeal could materially advance the end of the case. The court concluded that the January 22 order met none of those requirements, stating that Alexandre’s counterclaims and affirmative defenses were frivolous.

Disposition

The court recognized Alexandre’s right to take an interlocutory appeal from the January 21 Distribution Plan order, certified that an appeal of that order would not be in good faith for purposes of proceeding without fees, and declined to authorize an interlocutory appeal from the January 22 order under § 1292(b). The court directed the clerk to mail Alexandre a copy of the order and record the mailing on the docket.