author: TORRUELLA, Circuit Judge.

text:
    Commonwealth of MASSACHUSETTS; Aquinnah/Gay Head Community Association, Inc.; Town of Aquinnah, MA, Plaintiffs, Appellees, v. The WAMPANOAG TRIBE OF GAY HEAD (AQUINNAH); The Wampanoag Tribal Council of Gay Head, Inc.; The Aquinnah Wampanoag Gaming Corporation, Defendants, Appellants, Charles D. Baker, in his official capacity as Governor of the Commonwealth of Massachusetts; Maura T. Healey, in her capacity as Attorney General of the Commonwealth of Massachusetts; Stephen P. Crosby, in his capacity as Chairman of the Massachusetts Gaming Commission, Third-Party Defendants.
    No. 16-1137
    United States Court of Appeals, First Circuit.
    April 10, 2017

      Scott D. Crowell, with whom Crowell Law Offices-Tribal Advocacy Group, Sedo-na, AZ, Lael Echo-Hawk and Hobbs Straus Dean & Walker, LLP were on brief, for appellants.
    Judy B. Harvey, Attorney, Environment and Natural Resources Division, U.S. Department of Justice, with whom John C. Cruden, Assistant Attorney General, Sam Hirsch, Principal Deputy Assistant Attorney General, Mary Gabrielle Sprague and Amber Blaha, Attorneys, Environment and Natural Resources Division, Dan Lewer-enz, Office of the Solicitor, Department of the Interior, and Maria Getoff, Office of the General Counsel, National Indian Gaming Commission, were on brief, for United States as amicus curiae.
    Felicia H. Ellsworth, with whom Claire M. Specht, Boston, MA, James L. Quarles, III, Washington, DC, and Wilmer Cutler Pickering Hale and Dorr LLP were on brief, for appellee Aquinnah/Gay Head Community Association, Inc.
    Ronald H, Rappaport, with whom Michael A. Goldsmith, Boston, MA, and Reynolds, Rappaport Kaplan & Hackney, LLC, Edgartown, MA, were on brief, for appellee Town of Aquinnah.
    Juliana deHaan Rice, Assistant Attorney General, Government Bureau, with whom Bryan F. Bertram, Assistant Attorney General, and Maura T. Healey, Attorney General, were on brief, for appellee Commonwealth of Massachusetts and Third-Party Defendants.
    Before HOWARD, Chief Judge, TORRUELLA and KAYATTA, Circuit Judges.
   TORRUELLA, Circuit Judge.

Appellant, the Wampanoag Tribe of Gay Head (Aquinnah) (the “Tribe”), a federally recognized Indian tribe, seeks to have gaming pursuant to the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701-2721, on its trust lands in Dukes County, Massachusetts (the “Settlement Lands”). Appellees, the Commonwealth of Massachusetts (the “Commonwealth”), the town of Aquinnah (the “Town”) and the Aquinnah/Gay Head Community Association argue that any gaming on the Settlement Lands should be subject to state, rather than federal, laws and regulations. The district court, on summary judgment, found for the Appellees. The district court reasoned that IGRA did not apply, because the Tribe had failed to exercise sufficient governmental power; and that even if the Tribe had exercised sufficient governmental power, the Wampanoag Tribal Council of Gay Head, Inc., Indian Claims Settlement Act of 1987, Pub. L. No. 100-95 (codified at 25 U.S.C. §§ 1771 — 1771i) (the “Federal Act”), which provides that the Settlement Lands are subject to state laws and regulations (including gaming laws and regulations), governed. Because we find that the Tribe has exercised more than sufficient governmental power to satisfy the requirements of IGRA, and the Federal Act has been impliedly repealed by IGRA in relevant part, we reverse.

I. Background

A. Factual History

1. The Settlement Agreement and the Federal Act

The Tribe has lived on Martha’s Vineyard since before the European colonization of New England, and has continued to reside there to the present day. The Town was incorporated by the Commonwealth in 1870 as the town of Gay Head, and has since been renamed Aquinnah. In 1974, the Tribe sued the Town in federal court, asserting title to certain lands and “seeking ejectment of record title holders.” The Commonwealth and the Association intervened.

In November 1983, these parties signed a Memorandum of Understanding (the “Settlement Agreement”). The Settlement Agreement conveyed the Settlement Lands (approximately 485 acres) to the Tribe. In exchange, the Tribe gave up its claims to other lands and dismissed its lawsuit. Before this Settlement Agreement could enter into force, it had to be implemented by Congress.

On August 18, 1987, Congress implemented the Settlement Agreement by passing the Federal Act. See Wampanoag Tribal Council of Gay Head, Inc., Indian Claims Settlement Act of 1987, Pub. L. No. 100-95 (codified at) 25 U.S.C. §§ 1771-1771i. The Federal Act provides, inter alia, that the Settlement Lands “shall be subject to the civil and criminal laws, ordinances, and jurisdiction of the Commonwealth ... and the [Town] ... (including those laws and regulations which prohibit or regulate the conduct of bingo or any other game of chance).” 25 U.S.C. § 1771g.

The parties all agree that “[t]he Commonwealth, the Town, and the Tribe have each exercised jurisdiction over the Settlement Lands pursuant to the provisions of the Federal Act.”

2. Cabazon and IGRA

On February 25, 1987 — approximately six months before Congress passed the Federal Act — the Supreme Court decided California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987), which held that California — which permitted certain forms of regulated gambling — could not civilly regulate tribal bingo games because such regulation “would impermissibly infringe on tribal government.” Id. at 221-22, 107 S.Ct. 1083. This decision did, however, leave space for states that criminally prohibit gaming to prohibit it on Indian lands within their jurisdictions.

In response, on October 17, 1988, Congress enacted IGRA. See, e.g., Michigan v. Bay Mills Indian Cmty., — U.S. -, 134 S.Ct. 2024, 2034, 188 L.Ed.2d 1071 (2014) (“Congress adopted IGRA in response to [Cabazon], which held that States lacked any regulatory authority over gaming on Indian lands.”). IGRA provides, inter alia, “for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.” 25 U.S.C. § 2702(1).

IGRA “sets in place a sophisticated regulatory framework” for gambling on Indian lands, dividing gaming into three classes: Class I gaming, which includes traditional Native American gaming, is always permitted; Class II gaming, which includes bingo, is permitted so long as the state does not generally proscribe gaming of that type; and Class III gaming, which includes casino gambling, is permitted only pursuant to a compact between a tribe and the state. Id. § 2710; Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 689-90 (1st Cir. 1994). Congress established the National Indian Gaming Commission (“NIGC”) to administer IGRA; its responsibilities include approving Class II gaming ordinances submitted to it by Indian tribes. 25 U.S.C. §§ 2704, 2710(b)(1)(B).

3. The Tribe’s Pursuit of Gaming on Settlement Lands

On November 22, 2011, Governor Deval Patrick signed “An Act Establishing Expanded Gaming in the Commonwealth” into law, which allowed gaming in establishments licensed by the Commonwealth. On that same day, the Tribe submitted Gaming Ordinance No. 2011-01 to the NIGC for approval, which set forth tribal rules governing gaming. On February 4, 2012, the Tribe adopted Gaming Ordinance No. 2011-01, and on February 21, 2012, the NIGC “announe[ed] the approval of Gaming Ordinance No. 2011-01 for gaming on Indian Lands as defined by IGRA.” On March 5, 2012, the Tribe began corresponding with the Commonwealth to enter into negotiations for a Class III compact under the newly-enacted law, but no compact was formed.

On May 30, 2013, the Tribe submitted an amended Ordinance No. 2011-01 to the NIGC, which stated the Tribe’s intention to pursue Class II gaming on the Settlement Lands. The NIGC sought an opinion from the Department of the Interior (“DOI”) as to whether the Federal Act prohibited Class II gaming on the Settlement Lands; the DOI provided an opinion stating that gaming was not prohibited. On August 29, 2013, the NIGC approved the amended Ordinance No. 2011-01. On October 25, 2013, in response to a request by the Tribe, the NIGC provided an opinion that the Settlement Lands were eligible for gaming under IGRA. Consequently, the Tribe has neither applied for nor obtained a license from the Massachusetts Gaming Commission to operate a gaming establishment.

When the Tribe informed the Commonwealth that it would proceed with the establishment of a Class II gaming facility on the Settlement Lands pursuant to IGRA, the Commonwealth responded, on December 2, 2013, by filing suit against the Tribe in state court. The Commonwealth asserted breach of the Settlement Agreement and sought a declaratory judgment that the Settlement Agreement prohibited gaming on the Settlement Lands. The Tribe removed the case to the district court on December 30, 2013, on grounds of federal question and supplemental jurisdiction.

After some procedural fencing not relevant here, on May 28, 2015, the parties all moved for summary judgment. On November 13, 2015, the district court granted summary judgment for the Appellees.

The district court ruled that the Settlement Lands were not covered by IGRA, and hence were subject to the Commonwealth’s gaming regulations. Massachusetts v. Wampanoag Tribe of Gay Head (AQUINNAH), 144 F.Supp.3d 152, 177 (D. Mass. 2015). First, it found that the Tribe, despite having jurisdiction over the Settlement Lands, failed to exercise sufficient “governmental power” over those lands, as required for IGRA to apply. Id. It recognized that the Tribe had asserted that it was “responsible” for many governmental services in the Settlement Lands, but found that it had not shown sufficient “actual manifestations of [the Tribe’s] authority.” Id. at 169-70. Second, it ruled that even if the Tribe did exercise sufficient governmental power, IGRA did not work an implied repeal of the portion of the Federal Act that subjected the Settlement Lands to the gaming laws of the Commonwealth. Id. at 177. The district court relied heavily on the parenthetical language in § 1771g of the Federal Act stating that the “civil or criminal laws” included “those laws and regulations which prohibit or regulate the conduct of bingo or any other game of chance.” 25 U.S.C. § 1771g. Id. at 170-72 (quoting 25 U.S.C. § 1771g). According to the district court, this language “specifically prohibits gaming on the Settlement Lands.” Id. at 172. Because IGRA does not permit Class II gaming if it is “otherwise specifically prohibited on Indian lands by Federal law,” the district court ruled that IGRA did not repeal this provision, and that the Federal Act prohibited the Tribe from opening a gaming establishment on the Settlement Lands without the Commonwealth’s approval. Id.

On January 5, 2016, the district court entered final judgment, declaring that the Tribe could not operate a gaming facility on the Settlement Lands without complying with the laws of the Commonwealth and the Town, and enjoining the Tribe from opening any such establishment without first obtaining approval from the Commonwealth and the Town. The Tribe filed a timely appeal.

II. Standard of Review

A district court’s grant of summary judgment is reviewed de novo. OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co. of Can., 684 F.3d 237, 241 (1st Cir. 2012). Summary judgment should be granted if “there is no genuine dispute as to any material fact” and the movant “is entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(a)).

III. Discussion

We must resolve two issues today. First, we must decide whether IGRA applies to the Settlement Lands. See Narragansett, 19 F.3d at 702-03. Second, we must decide whether IGRA effects a repeal of the Federal Act. See id. at 703-04.

A. The Applicability of IGRA

[IGRAj’s key provisions [apply] to “[a]ny Indian tribe having jurisdiction over Indian lands,” or, stated differently, to “Indian lands within such tribe’s jurisdiction.” See 25 U.S.C. §§ 2710(d)(3)(A), 2710(b)(1). These are dual limitations, for one element of the definition of “Indian lands” requires that an Indian tribe “exercise[] governmental power” over them. 25 U.S.C. § 2703(4).

Narragansett, 19 F.3d at 701 (third and fourth alterations in original).

1. Having Jurisdiction

In Narragansett, we were satisfied by the fact that Rhode Island did not acquire “exclusive” jurisdiction, and that the Narragansett Tribe retained “that portion of jurisdiction they possess by virtue of their sovereign existence as a people.” Id. at 702. In the present case, as the district court noted, the parties stipulated that “the Commonwealth, the Town, and the Tribe have each exercised jurisdiction over the Settlement Lands.” Although the Federal Act does contain some language limiting the Tribe’s jurisdiction, that language only confirms that the Tribe retains the jurisdiction it has not surrendered in the Federal Act. 25 U.S.C. § 1771e(a) (stating that the Tribe “shall not have any jurisdiction over nontribal members and shall not exercise any jurisdiction over any part of the [Settlement [L]ands in contravention of [the Federal Act], the civil regulatory and criminal laws of [the Commonwealth and the Town], and applicable Federal Laws”). “Since the Settlement Act does not unequivocally articulate an intent to deprive the Tribe of jurisdiction, we hold that its grant of jurisdiction to the state is non-exclusive. The [Tribe], therefore, [has] made the necessary threshold showing.” Narragansett, 19 F.3d at 702.

2. Exercising Governmental Power

[A] tribe must exercise governmental power in order to trigger [IGRA]. Meeting this requirement does not depend upon the Tribe’s theoretical authority, but upon the presence of concrete manifestations of that authority. Consequently, an inquiring court must assay the jurisdictional history of the settlement lands.

Id. at 702-03.

In Narragansett, we noted that this “inquiry into governmental power need not detain us,” and concluded that the Narragansett Tribe’s “activities adequately evince that the Tribe exercises more than enough governmental power to satisfy the second prong of the statutory test.” Id. at 703. To wit, the Narragansett Tribe

has taken many strides in the direction of self-government. It has established a housing authority, recognized as eligible to participate in the Indian programs of the federal Department of Housing and Urban Development, see 24 C.F.R., Part 905 (1993). It has obtained status as the functional equivalent of a state for purposes of the Clean Water Act, after having been deemed by the Environmental Protection Agency as having “a governing body carrying out substantial governmental duties and powers,” 33 U.S.C. § 1377(e) (1988), and as being capable of administering an effective program of water regulation, see 40 C.F.R. § 130.6(d) (1993). It has taken considerable advantage of the Indian Self-Determination and Education Assistance Act (ISDA), a statute specifically designed to help build “strong and stable tribal governments.” 25 U.S.C. § 450a(b) (1998). The Tribe administers health care programs under an ISDA pact with the Indian Health Service, and, under ISDA contracts with the Bureau, administers programs encompassing job training, education, community services, social services, real estate protection, conservation, public safety, and the like.

Id.

The Tribe in the present case has taken most of the same steps that the Narragan-setts had — and indeed several more. Therefore, like in Narragansett, the inquiry into governmental power “need not detain us.” Id.

In the present case, like in Narragansett, the Tribe: has established a housing program that receives HUD assistance, and has built approximately 30 units of housing under that program; has entered into an intergovernmental agreement with the EPA; operates a health care clinic with the aid of the Indian Health Service; administers a program for education with scholarships financed with Bureau of Indian Affairs funding; administers social services with a human services director responsible for child welfare work; administers conservation policy (and has two conservation rangers to enforce its conservation policy); and administers a public safety program (the same two rangers enforce tribal laws and can be cross-deputized by the Town).

In addition, the Tribe has passed numerous ordinances and employs a judge. These ordinances deal with such diverse topics as building codes, health, fire, safety, historic preservation, fish, wildlife, natural resources, housing, lead paint, elections, judiciary, criminal background checks, and the reporting of child abuse and neglect. In addition to the intergovernmental agreements already mentioned — with the EPA and the Bureau of Indian Affairs — the Tribe has also entered into intergovernmental agreements with the National Park Service, and indeed also with the Commonwealth and the Town. The agreements with the Commonwealth and the Town include agreements whereby the Tribe, for compensation, may rely on state and local law enforcement and firefighting services.

The Town nevertheless urges us to adopt the district court’s analysis and find that the Tribe has not exercised sufficient governmental power. The Town points out that some of the Tribe’s exercises of governmental power are not full-fledged, and then proceeds to read our opinion in Narragansett as requiring full-fledged exercise of governmental power for IGRA to apply. For instance, the Town points out that while the Tribe employs a judge — and indeed maintains a tribal court — this judge is employed part-time, and presides via teleconference from Washington State; similarly, the Town points out that the Tribe does not have a hospital, but instead maintains a health clinic.

The Town gets it backwards. Pursuant to IGRA, “the operation of gaming by Indian tribes [is] a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.” 25 U.S.C. § 2702. The Town now seeks to put this logic on its head by requiring the Tribe’s government to be fully developed before it can have the benefit of gaming revenue. This is not what IGRA requires, nor is it our case law. In Narragansett, we deemed the “many strides in the direction of self-government” — that is, not the achievement of full-fledged self-governance, but merely movement in that direction — to “evince that the Tribe exercises more than enough governmental power to satisfy the second prong of the statutory test.” 19 F.3d at 703. We have no difficulty drawing the same conclusion here, especially because “[i]n determining [Congressional] intent ... [d]oubtful expressions are to be resolved in favor of [Indians].” Id. at 691 (citations omitted) (quoting Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 586-87, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977)).

B. The Interface between IGRA and the Federal Act

Having determined that IGRA applies to the Settlement Lands, we must now determine whether IGRA effected a partial repeal of the Federal Act. “The proper mode of analysis for cases that involve a perceived conflict between two federal statutes is that of implied repeal.” Id. at 703 (citing United States v. Cook, 922 F.2d 1026, 1033 (2d Cir. 1991)). “[Urn-plied repeals of federal statutes are disfavored. In the absence of a contrary legislative command, when two acts of Congress touch upon the same subject matter the courts should give effect to both, if that is feasible.” Id. (citing Pipefitters Local 562 v. United States, 407 U.S. 385, 432 n.43, 92 S.Ct. 2247, 33 L.Ed.2d 11 (1972)). “[S]o long as the two statutes, fairly construed, are capable of coexistence, courts should regard each as effective.” Id (citing Traynor v. Turnage, 485 U.S. 535, 547-48, 108 S.Ct. 1372, 99 L.Ed.2d 618 (1988)). But “ ‘if the two [acts] are repugnant in any of their provisions, the latter act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first.’ ” Id. (quoting United States v. Tynen, 78 U.S. 88, 92, 11 Wall. 88, 20 L.Ed. 153 (1870)). Finally, “[e]ven absent outright re-pugnancy, a repeal may be implied in cases where the later statute covers the entire subject ‘and embraces new provisions, plainly showing that it was intended as a substitute for the first act.’ ” Id. at 703-04 (quoting Tynen, 78 U.S. at 92).

“The doctrine of implied repeal operates without special embellishment in the Indian law context. The rationale for encouraging preemption in the Indian context — that the federal government is a more trustworthy guardian of Indian interests than the states — has no relevance to a conflict between two federal statutes.” Id. at 704 (internal citations omitted). .

Two precedents guide our analysis of the present issue: Narragansett, 19 F.3d 685 (holding that the Rhode Island Settlement Act was impliedly repealed in relevant part by IGRA, id. at 705), and Passamaquoddy Tribe v. Maine, 75 F.3d 784 (1st Cir. 1996) (holding that the Maine Settlement Act was not repealed by IGRA). Because the present case is very close to Narragansett, and readily distinguished from Passamaquoddy, we find for the Tribe on this issue.

The Rhode Island Settlement Act at issue in Narragansett read, in relevant part, “[ejxcept as otherwise provided in this subchapter, the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island.” 25 U.S.C. § 1708 (1978). We found that this settlement act and IGRA “are partially but not wholly repugnant.” Narragansett, 19 F.3d at 704. The two laws clashed only as to class I and class II gaming (because IGRA permits class III gaming only if the tribe and the state reach a compact), which “leaves largely intact the grant of jurisdiction [to the state] — but it demands an adjustment of that portion of jurisdiction touching on gaming.” Id. We highlighted two reasons why IGRA trumped the Rhode Island Settlement Act:

First, the general rule is that where two acts are in irreconcilable conflict, the later act prevails.... Second, ... courts should endeavor to read antagonistic statutes together in the manner that will minimize the aggregate disruption of congressional intent. Here, reading the two statutes to restrict state jurisdiction over gaming honors [IGRA] and, at the same time, leaves the heart of the [Rhode Island] Settlement Act untouched. Taking the opposite tack— reading the two statutes in such a way as to defeat tribal jurisdiction over gaming on the settlement lands — would hon- or the Settlement Act, but would do great violence to the essential structure and purpose of [IGRA].

Id. at 704-705 (internal citations omitted).

In Passamaquoddy, we were presented with very different language:

The provisions of any Federal law enacted after October 10, 1980 [the effective date of the Maine Settlement Act], for the benefit of Indians, Indian nations, or tribes or bands of Indians, which would affect or preempt the application of the laws of the State of Maine ... shall not apply within the State of Maine, unless such provision of such subsequently enacted Federal law is specifically made applicable within the State of Maine.

25 U.S.C. § 1735(b) (emphasis added). We reasoned that the Maine Settlement Act contained a savings clause that “acts as a warning signal to later Congresses to stop, look, and listen before weakening the foundation on which the settlement between Maine and the Tribe rests,” and that “signals courts that, if a later Congress enacts a law for the benefit of Indians and intends the law to have effect within Maine, that intent will be made manifest.” Passama-quoddy, 75 F.3d at 789. Because IGRA does not contain any indication that Congress intended it to be specifically applicable within Maine, we concluded that — given the presence of the savings clause— there was no conflict between the Maine Settlement Act and IGRA, and IGRA therefore did not alter that settlement act.

The Appellees seek to distinguish the present case from Narragansett because the Federal Act — otherwise, in relevant part, essentially identical to the Rhode Island Settlement Act — ends in a parenthetical that reads, in full, “(including those laws and regulations which prohibit or regulate the conduct of bingo or any other game of chance).” 25 U.S.C. § 1771g. Appellees argue that this parenthetical operates as a savings clause like the one in Passamaquoddy.

Appellees, however, misread the parenthetical. Unlike the savings clause in Pas-samaquoddy, the parenthetical in the Federal Act says nothing about the effect of future federal laws on the Federal Act. Rather, the parenthetical merely clarifies that, at the time of the enactment of the Federal Act, state and local gaming law applied to the Settlement Lands. We note that, at the time, there was a reason for adding this clarification (a reason that did not exist nine years earlier when the Rhode Island Settlement Act entered into force). Approximately six months before Congress passed the Federal Act on August 18, 1987, the Supreme Court decided Cabazon, 480 U.S. 202, 107 S.Ct. 1083, which created considerable uncertainty about Indian law, specifically with respect to gaming. See, e.g., Wisconsin v. Ho-Chunk Nation, 784 F.3d 1076, 1080 (7th Cir. 2015) (“Cabazon led to a flood of activity, and states and tribes clamored for Congress to bring some order to tribal gaming.”); see also supra Section 1.2. Soon after, on October 17, 1988, Congress enacted IGRA. The Federal Act was thus passed during a period of uncertainty about the status and future of Indian gaming. The parenthetical served to decrease that uncertainty by clarifying that, when the Federal Act was enacted, Commonwealth gaming law applied to the Settlement Lands, but — -just like the Rhode Island Settlement Act nine years before it— it said nothing about the effect of future federal law.

The fact that the savings clause in the Maine Settlement Act had already been on the books for some seven years when the Federal Act was enacted further confirms that Congress did not intend the Federal Act to contain such a savings clause — for the Maine Settlement Act leaves no doubt that Congress knew how to draft a savings clause, and that the parenthetical in the Federal Act is not such a savings clause.

We also reject the Appellees’ argument that the Federal Act and IGRA are not in conflict because the latter only allows class II gaming where it “is not otherwise specifically prohibited on Indian lands by Federal law.” 25 U.S.C. § 2710(b)(1)(A). Contrary to the Appellees’ contentions, the parenthetical language included in the

Federal Act is neither specific nor a prohibition. The language is hardly specific, as it appears applicable to all types of gaming and references bingo only as an example. Nor does the section prohibit anything. It merely grants Massachusetts jurisdiction over gaming. And, as the Tribe points out, even Massachusetts law does not prohibit gaming altogether. Rather, it merely regulates such gaming (e.g., by requiring a license). Review of the legislative history confirms that this is not the type of specific prohibition that Congress had in mind. Indeed, “[t]he phrase ‘not otherwise prohibited by Federal Law”’ was meant to “refer[ ] to gaming that utilizes mechanical devices as defined in 15 U.S.C. § 1175,” which the Appellees concede is not at issue here. S. Rep. No. 100-446, at 12 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3082.

IV. Conclusion

For the foregoing reasons, the opinion of the district court is reversed and the case is remanded to the district court for entry of judgment in favor of the Tribe.

Reversed and Remanded.

      . The town of Gay Head was incorporated into the Commonwealth of Massachusetts in 1870, but has since been renamed "Aquin-nah.”

      . Because the Town and the Association filed a joint brief, we generally refer to both parties together as “the Town.”

      . The Tribe also raises a third issue, whether the district court abused its discretion by not including the NIGC as a required party. A party is required to be joined if the absence of that party could "leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations." Fed. R. Civ. P. 19(a)(l)(B)(ii). In determining whether there is a risk of inconsistent obligations under Rule 19(a)(l)(B)(ii), we consider whether there is a "practical” possibility of such an inconsistency, not whether it may be "theoretically possible.” Bacardí Int'l Ltd. v. V. Suárez & Co., 719 F.3d 1, 13 (1st Cir. 2013). Although the Tribe asserts that it may become subject to inconsistent obligations, the Tribe has failed to provide any examples of such inconsistent obligations. We thus find no error, let alone abuse of discretion, in the district court’s decision to proceed without the NIGC as a party.

      . The Tribe argues that Appellees have waived arguments on this issue. Because we find for the Tribe on the merits, we need not address its waiver argument.

      . The Town observes that in Narragansett we pointed to the Federal Act as an instance where, in contrast to Rhode Island’s Settlement Act, Congress placed "stated limits on the retained jurisdiction of the affected tribes.” 19 F.3d at 702. However, we made that comment only to highlight that the Rhode Island Act’s broad language did not imply exclusivity, not to suggest that the Federal Act somehow conveyed exclusive jurisdiction to the Commonwealth.

      . The Tribe also argues that the determinations the NIGC and DOI made concerning the applicability of IGRA to the Settlement Lands merit our deference. Because we find for the Tribe on the merits of its own legal arguments, we do not reach the question of how much, if any, deference the NIGC and DOI determinations merit.

      . The relevant portion of the Federal Act reads, in full:
      Except as otherwise expressly provided in this subchapter or in the State Implementing Act, the settlement lands and any other land that may now or hereafter be owned by or held in trust for any Indian tribe or entity in the town of Gay Head, Massachusetts, shall be subject to the civil and criminal laws, ordinances, and jurisdiction of the Commonwealth of Massachusetts and the town of Gay Head, Massachusetts (including those laws and regulations which prohibit or regulate the conduct of bingo or any other game of chance).
      25 U.S.C. § 1771g. Although the Federal Act is more detailed than the Rhode Island Settlement Act in terms of which lands it applies to and which local laws the Settlement Lands shall be subject to, Appellees do not argue, nor could they, that this added level of detail is relevant to the implied repeal analysis.

      . Appellees note that Congress amended the Rhode Island Settlement Act following our decision in Narragansett to include "[f]or purposes of [IGRA], settlement lands shall not be treated as Indian lands.” 25 U.S.C. § 1708(b) (1996). Appellees argue that this means that Congress also intended the Settlement Lands in Massachusetts not to be treated as Indian lands for the purposes of IGRA. Appellees ignore an obvious fact: Congress did not amend the Federal Act.

      . The Maine Settlement Act is by no means the only example that demonstrates that Congress knows how to draft a savings clause. See Passamaquoddy, 75 F.3d at 790 (“the Court regularly has upheld and given effect to [savings clauses]” (citing Warden, Lewisburg Penit. v. Marrero, 417 U.S. 653, 659-60 n.10, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974) (earlier statute barred repeal of certain penalties “unless the repealing Act shall so expressly provide”); Shaughnessy v. Pedreiro, 349 U.S. 48, 52, 75 S.Ct. 591, 99 L.Ed. 868 (1955) (earlier statute directed that “[n]o subsequent legislation shall ... supersede or modify the provisions of [the earlier statute] except to the extent such legislation shall do so expressly”); Posadas v. National City Bank, 296 U.S. 497, 501, 56 S.Ct. 349, 80 L.Ed. 351 (1936) (earlier statute directed that subsequent laws "shall not apply to the Philippine Islands, except when they specifically so provide”); Great Northern Ry. Co. v. United States, 208 U.S. 452, 456, 28 S.Ct. 313, 52 L.Ed. 567 (1908) (similar); United States v. Reisinger, 128 U.S. 398, 401-02, 9 S.Ct. 99, 32 L.Ed. 480 (1888) (similar))).


source: Caselaw Access Project

author: GERARD E. LYNCH, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Ayfer YALINCAK, Defendant, Hakan Yalincak, Defendant-Appellant.
    Docket Nos. 11-5446(L), 11-5453(Con) 15-2018(Con), 15-3125(Con), 15-3170(Con)

    August Term, 2016
    United States Court of Appeals, Second Circuit.
    Argued: December 7, 2016
    Decided: April 10, 2017

      Jeffrey C. Kestenband, The Kesten-band Law Firm, LLC, Glastonbury, CT, for Defendant-Appellant Hakan Yalincak.
    Christine L. Sciarrino, Assistant United States Attorney (Lauren M. Nash and Marc H. Silverman, Assistant United States Attorneys, on the brief), for Deirdre M. Daly, United States Attorney for the District of Connecticut, New Haven, CT.
    Before: CALABRESI, RAGGI, and LYNCH, Circuit Judges.

      This Court previously granted defendant-appellant's motion to withdraw the appeals docketed under Nos. 11-5446 and 11-5453.

   GERARD E. LYNCH, Circuit Judge:

Defendant-appellant Hakan Yalincak appeals from two rulings of the United States District Court for the District of Connecticut (Janet Bond Arterton, Judge) vacating the district court’s prior order dated December 26, 2007, which had granted Yalincak more than $1.1 million in credits towards his restitution obligations pursuant to the Mandatory Victims Restitution Act (“MVRA”). See 18 U.S.C. § 3664(j)(2). Recognizing nearly eight years after the fact that its December 2007 order had been prematurely entered, the district court vacated the order sua sponte, drawing on its “inherent power to correct mistakes made in its handling of a case” and “power to grant relief from erroneous interlocutory orders,” United States v. Lo-Russo, 695 F.2d 45, 53 (2d Cir. 1982) (internal quotation marks omitted).

On appeal, Yalincak principally argues that the December 2007 order was a final order that the district court lacked the authority to later vacate, and that he is therefore entitled to the credits that he was granted in the December 2007 order. Resolving whether the December 2007 order was final requires us to consider, in turn, the question of when an order granting a motion for credit under 18 U.S.C. § 3664(j)(2) is final and thus appealable. We conclude that appeal of a § 36640(2) order need not wait until a defendant’s restitution obligations are fully satisfied and may be brought where the order conclusively determines a defendant’s entitlement to credit under § 3664(j)(2) for particular funds. Because the December 2007 order conclusively determined Yalincak’s entitlement to particular funds recovered in two bankruptcy proceedings and was thus a final order, the district court lacked the authority to later vacate that order. Accordingly, we VACATE in part the district court’s May 11, 2015 and September 28, 2015 rulings and REMAND for further proceedings consistent with this opinion.

BACKGROUND

In June 2006, Yalincak pled guilty to bank and wire fraud charges stemming from a scheme to defraud investors in a sham hedge fund that Yalincak purported to manage. On April 11, 2007, the district court sentenced Yalincak to concurrent terms of 42 months’ imprisonment followed by concurrent terms of supervised release and ordered him to pay $4,182,000 in restitution to his victims.

On April 24, 2007, Yalincak moved the district court “to order that any and all funds” recovered in the ongoing bankruptcy proceedings of Daedalus Capital Relative Value Fund I, LLC (the “Daedalus Bankruptcy”) “be credited to the restitution order,” and, “[i]n particular, ... the amount of $1,050,907.38 recovered in the said proceedings.” A. 25. In response, the government filed a written submission stating that it did “not object to the defendant’s motion,” but that Yalincak “should take whatever action is necessary to make certain that the [government] ... is notified timely of any distribution from the $1,050,907.38 as well as any future distributions to victims of the defendants’ fraudulent scheme by the bankruptcy trustee.” A. 34-35.

On November 2, 2007, Yalincak filed a second motion seeking credit for $90,000 collected in the bankruptcy proceedings of HMMH Holdings, LLC (the “HMMH Bankruptcy”). Yalincak also reiterated his request to be credited any and all funds, including the $1,050,907.38, recovered in the Daedalus Bankruptcy. In that motion, Yalincak noted that he “desire[d] clarification of his and his co-defendants’ restitution status” given that the “Bankruptcy Trustee has commenced approximately fourteen (14) adversary proceedings,” which Yalincak “anticipated] ... w[ould] constitute the principal avenue for restitution” to his victims. A. 37.

On December 26, 2007, the district court granted both of Yalincak’s motions “absent objection” in a text-only order on the case docket. A. 14. The order stated in full:

ORDER granting 147 Motion as to Hak-an Yalincak (1); granting 159 Motion as to Hakan Yalincak (1), absent objection. Signed by Judge Janet Bond Arterton on 12/26/2007. (Tooker, A.) (Entered: 12/26/2007)

Id. The district court did not provide any other explanation for the ruling.

Yalincak filed additional motions for credit in January 2011 and July 2013. On May 11, 2015, in the course of ruling on those motions, the district court vacated its December 2007 order sua sponte. In doing so, the district court explained that it had previously granted Yalincak’s first two motions for credit “absent objection ... without a determination on the merits” and that “the Clerk’s records indicate that Mr. Yalincak has not been credited with these sums.” A. 258. Having now conducted a “careful review of the motions,” the district court concluded that its previous grant of the motions was “premature” and vacated the December 2007 order, citing its authority under Federal Rule of Civil Procedure 60(a) to correct a clerical mistake or a mistake arising from oversight or omission. Id. The district court then denied Yalincak credit for the. $1,050,907.38 collected in the Daedalus Bankruptcy and the $90,000 collected in the HMMH Bankruptcy on the basis that Yalincak had failed to make the required showings under the MVRA, which states, in relevant part, that “[a]ny amount paid to a victim under an order of restitution shall be reduced by any amount later recovered as compensatory damages for the same loss by the victim in ... any Federal civil proceeding.” 18 U.S.C. § 3664<j)(2).

Yalincak moved for reconsideration. In September 2015, after holding a status conference and accepting further briefing, the district court adhered to its decision to vacate the December 2007 order. Acknowledging, however, that its reliance on Rule 60(a) was misplaced, the district court instead located its authority to vacate the December 2007 order in its “inherent power to ‘correct mistakes made in its handling of a case’ ” and “ ‘power to grant relief from erroneous interlocutory orders.’ ” A. 268, quoting LoRusso, 695 F.2d at 53. The district court then proceeded to reconsider whether Yalincak was entitled to credit under § 3664(j)(2) for the amounts collected in the Daedalus and HMMH Bankruptcies, having now received evidence of the sums actually distributed to Yalincak’s victims through those proceedings. As to the Daedalus Bankruptcy, the district court granted Ya-lincak credit for $307,767.53 actually distributed to victims, but excluded the $1,262,077.17 spent on administrative expenses (which consisted largely of attorneys’ fees) in connection with the Daedalus Bankruptcy and the $10,166.62 distributed to creditors to whom Yalincak did not owe restitution. As to the HMMH Bankruptcy, the district court likewise granted Yalincak credit for $175,104.24 actually distributed to victims, but excluded administrative expenses of $52,435.78. After accounting for those credits (and other credits not at issue on appeal), the district court determined that Yalincak’s outstanding restitution obligations totaled $1,858,038.38.

Thereafter, Yalincak sought a stay of the distribution of certain funds held by the district court pending the outcome of this appeal. While the district court granted the stay on the grounds that Yalincak had shown that irreparable harm would occur in the absence of a stay, it rejected Yalincak’s contention that he was likely to succeed on the merits of his appeal. In so ruling, the district court disagreed with Yalincak’s characterization of the December 2007 order as final rather than interlocutory. Specifically, the district court reasoned that it was “clear” at the time that Yalincak filed his first two motions for credit that “they would not be the last such motions” and that “[t]he issues underlying Mr. Yalincak’s several motions for credit were not finally resolved” until the district court’s September 2015 ruling. A. 283.

Yalincak filed timely notices of appeal of both the district court’s May 2015 and September 2015 rulings.

DISCUSSION

On appeal, Yalincak argues principally that the December 2007 order was a final order that the district court lacked the authority to later vacate. Yalincak contends that he is therefore entitled to the credits that he was granted in the district court’s December 2007 order: the $1,050,907.38 collected in the Daedalus Bankruptcy and $90,000 collected in the HMMH Bankruptcy. We review a district court’s decision to reconsider or modify a previous interlocutory order for abuse of discretion, see United States v. Uccio, 940 F.2d 753, 758-59 (2d Cir. 1991), but conduct de novo review of the district court’s legal conclusions, including whether an order is interlocutory or final, see Somoza v. N.Y.C. Dep’t of Educ., 538 F.3d 106, 112 (2d Cir. 2008).

As a threshold matter, Yalincak conceded at oral argument that the credits at issue in the December 2007 order were erroneously granted. Section 3664(j)(2) provides, in relevant part, that “[a]ny amount paid to a victim under an order of restitution shall be reduced by any amount later recovered as compensatory damages for the same loss by the victim in ... any Federal civil proceeding.” 18 U.S.C. § 3664(j)(2). As we recently held in United States v. McGinn, 787 F.3d 116 (2d Cir. 2015), amounts “collected” by a court-appointed receiver but not “actually distribute[d]” to victims cannot be credited towards a defendant’s restitution total under § 3664(j)(2), “which only permits offsets for money ‘recovered’ as opposed to ‘collected’ but not necessarily distributed.” Id. at 130-131. Amounts recovered by a bankruptcy trustee for the benefit of the bankruptcy estate, and consumed in the administration of the estate or distributed to non-victim creditors, plainly are not “recovered ... by the victim[s]” of a crime; only amounts actually distributed to the victim creditors fit that description. Accordingly, because the amounts at issue here were collected by the bankruptcy trustee but had not been distributed to Yalincak’s victims at the time of the December 2007 order, Yalincak was not entitled to credit under § 3664(j)(2) for those amounts.

Yalincak argues, nevertheless, that even if the December 2007 order was erroneous, it was a final erroneous order that the district court lacked the authority to later vacate. As we explained in LoRus-so, “the power to grant relief from erroneous interlocutory orders, exercised in justice and good conscience, has long been recognized as within the plenary power of courts.” 695 F.2d at 53, quoting United States v. Jerry, 487 F.2d 600, 604 (3d Cir. 1973); accord Uccio, 940 F.2d at 758. A district court’s power to modify its prior orders under LoRusso thus turns on the same distinction that generally governs whether an order is appealable — that is, whether the order is interlocutory or final. If the December 2007 order was interlocutory, the district court had the authority to vacate that order in 2015, and no immediate appeal of the order would have been available in December 2007. However, if the order was final, as Yalincak contends, the district court lacked the authority to vacate that order in 2015, and the only recourse available for correcting the district court’s errors would have been for the parties to seek clarification, or for the government or other aggrieved party to appeal the order immediately in December 2007. No such action was taken.

The dispositive question on appeal is thus whether the December 2007 order was final or interlocutory. Generally, a final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945). In post-judgment proceedings, an order is not final simply because it follows the entry of judgment. EM Ltd. v. Republic of Argentina, 695 F.3d 201, 205 (2d Cir. 2012). Rather, we have stated that a “practical rather than a technical construction” of finality is “especially” appropriate in the post-judgment context because the traditional concerns regarding piecemeal review carry less force during such proceedings. In re Am. Preferred Prescription, Inc., 255 F.3d 87, 93 (2d Cir. 2001) (internal quotation marks omitted). Nonetheless, not all post-judgment orders are appealable. As we have noted, while post-judgment orders in “ordinary civil litigation” are “generally appealable,” “ministerial” or “administrative” orders, such as post-judgment discovery orders, are not. Id. at 92-93 (internal quotation marks omitted). Accordingly, we have held that orders granting subpoenas in aid of post-judgment collection proceedings are not final; instead, the “relevant final decision” in such proceedings is the “subsequent judgment that concludes the collection proceedings.” Vera v. Republic of Cuba, 802 F.3d 242, 247 (2d Cir. 2015) (internal quotation marks omitted); accord EM Ltd., 695 F.3d at 205-06.

We have yet to rule on whether an order resolving a motion for credit under § 3664(j)(2) constitutes an appealable final order. In doing so, we begin with an examination of the relevant provisions of the MVRA, which is one of several federal statutes empowering courts to impose restitution obligations on criminal defendants. United States v. Thompson, 792 F.3d 273, 277 (2d Cir. 2015). The substantive provisions of the MVRA, codified at 18 U.S.C. § 3663A, require that courts impose restitution obligations on defendants who are convicted of certain categories of crimes that inflict physical injury or property loss on their victims. Id. § 3663A(b); Thompson, 792 F.3d at 277. Such restitution obligations are imposed “when sentencing [the] defendant” in an order of restitution, which must be issued and enforced pursuant to the MVRA’s procedural provisions, codified at 18 U.S.C. § 3664. Id. §§ 3663A(a)(l), (d); accord Thompson, 792 F.3d at 277.

A district court’s resolution of a motion for credit under § 3664(j)(2) comes after an order of restitution has already been issued — when a victim “later recovers]” compensatory damages in a state or federal civil proceeding for the “same loss” covered by the order of restitution. 18 U.S.C. § 3664(j)(2). In such circumstances, § 3664(j)(2) entitles a defendant to a reduction in the amount to be paid to that victim in order to “limit restitution that would result in an overpayment to the victim.” United States v. Nucci, 364 F.3d 419, 423 (2d Cir. 2004). Although the MVRA does not prescribe a particular procedure for resolving such claims, see 18 U.S.C. § 3664(e) (providing generally that “[a]ny dispute as to the proper amount or type of restitution” is to be resolved by the preponderance of the evidence and specifying the allocation of the burden of proof in a variety of circumstances), our sister Circuits have recognized that defendants are entitled to move the district court for a credit or offset to their restitution obligations pursuant to § 3664(j)(2) once a victim has recovered such damages, see, e.g., United States v. Malone, 747 F.3d 481, 486, 489 n.4 (7th Cir. 2014); United States v. Louper-Morris, 672 F.3d 639, 567 (8th Cir. 2012); see also United States v. Goldberg, 661 Fed.Appx. 33, 37 (2d Cir. 2016) (summary order). A defendant may seek such credit regardless of whether that credit is sufficient, standing alone, to discharge the defendant’s restitution obligations entirely.

A district court’s resolution of a § 3664(j)(2) motion thus generally comes at some intermediate point in post-judgment restitution proceedings: after an order of restitution has been issued, but before a defendant entirely discharges his or her restitution obligations. Accordingly, an order granting a § 3664(j)(2) motion generally cannot be said to “conclude! ] the ... proceedings” in the same way that a “subsequent judgment” concludes post-judgment collection proceedings, Vera, 802 F.3d at 247 (internal quotation marks omitted); accord EM Ltd., 695 F.3d at 206, except in the circumstance where the credit granted entirely discharges a defendant’s restitution obligations, thereby ending post-judgment restitution proceedings for all practical purposes.

The Seventh Circuit has, nonetheless, found an analogous category of post-judgment orders — those granting a writ of garnishment — to be final and appealable. Such writs, issued by a district court under the Federal Debt Collection Procedures Act, are often sought by the government to seize a defendant’s property in order to satisfy his or her restitution obligations. See United States v. Cohan, 798 F.3d 84, 89 (2d Cir. 2015). In many cases, the seized assets are not enough to discharge the defendant’s restitution obligations entirely. See, e.g., United States v. Sloan, 505 F.3d 685, 698 n.20 (7th Cir. 2007) (garnishing a defendant’s wages at the rate of $148 per week to satisfy outstanding restitution obligations of more than $600,000). Thus, like orders granting a motion for credit under § 3664(j)(2), a garnishment order often fails to terminate restitution proceedings. Yet the Seventh Circuit has held that such orders are final and appealable because they constitute “a final decision as to [a defendant’s claim] to [particular] [a]ssets.” United States v. Kollintzas, 501 F.3d 796, 802 (7th Cir. 2007); see also Sloan, 505 F.3d at 687 (holding that a garnishment order is a “final appealable order”); Harold v. Steel, 773 F.3d 884, 886 (7th Cir. 2014) (approving the rule articulated in Kollintzas and Sloan). That rule turns in part on a “practical rather than a technical construction” of finality. In re Am. Preferred Prescription, Inc., 255 F.3d at 93. As the Seventh Circuit has suggested, if garnishment orders were not appealable, a defendant may never have an opportunity to “timely appeal” such a determination since there may not be “another, more conclusive, order” from which to appeal. Kollintzas, 501 F.3d at 802 (internal quotation marks omitted).

Similar logic applies here. When the district court granted Yalincak’s motion for credit, it made a conclusive determination as to Yalincak’s entitlement to credit for the $1,050,907.38 collected in the Daedalus Bankruptcy and the $90,000 collected in the HMMH Bankruptcy. The order did not dispose of the issue of restitution entirely, given that the credits were not enough to discharge Yalincak’s restitution obligations in full and thereby end the restitution proceedings. Nonetheless, the district court’s resolution of the § 3664(j)(2) motion was a final decision as to Yalincak’s claim regarding the proper accounting for particular funds. If such a decision were not considered final and appeal had to wait until Yalincak had discharged his restitution obligations entirely, it is unclear as a practical matter whether the district court’s grant of the § 3664(j)(2) motion could ever be challenged. As of December 2007, Yalincak still owed over $3 million in restitution to his victims; as of September 2015, that figure remained close to $2 million according to the district court’s calculations. It is entirely possible that Yalincak will never fully satisfy his restitution obligations within the restitution order’s lifetime.

The analogy to garnishment orders is concededly imperfect. In the garnishment context, the defendant is deprived of property immediately and may suffer an irreparable loss if immediate appeal is not available, since there may never be a later opportunity to appeal the order. In the present context, in contrast, the district court’s December 2007 order does not affect ownership of any property. Regardless of the question of credit, the distribution of the collected funds to the victims, the other creditors, and the trustee’s attorneys will not change. It can be argued that, unless and until the amounts credited to Yalincak extinguish his restitution obligations, the credit determinations remain somewhat academic.

That argument is not, in the abstract, without force. A regime in which a defendant could not seek, resolution of possible credits until he sought a final determination that his restitution obligations were fully discharged could have been created. The courts have recognized, however, that Congress did not create such a regime. Instead, all courts that we know to have considered the question presented here have permitted persons subject to restitution orders to seek adjudication of whether certain alleged recoveries by victims should be credited against their restitution obligations under § 3664(j)(2). The provision of such a procedure is inconsistent with any argument that its results can be treated as interlocutory and subject to sua sponte revision at any time. By permitting defendants to move for a determination of credit, courts have recognized that persons subject to restitution orders are entitled to know, as they lead their lives and make economic decisions over the long duration of restitution orders, the extent of their remaining restitution obligations. That procedure would be pointless if decisions to grant or deny restitution credits were merely tentative predictions or estimates, subject to revision indefinitely if a district court’ sua sponte changed its mind years after the credit was awarded, and incapable of being finalized by appeal. A “practical ... construction” of finality thus supports the adoption of a rule permitting appeal of a § 3664(j)(2) order prior to a defendant’s complete satisfaction of his or her restitution obligations. In re Am. Preferred Prescription, Inc., 255 F.3d at 93.

For all the foregoing reasons, we hold that a § 3664(j)(2) order is final and appealable where the order conclusively determines a defendant’s entitlement to credit under § 3664(j)(2) for particular funds. It follows that the December 2007 order was a final appealable order as to Yalincak’s entitlement to credit under § 3664(j)(2) for the $1,050,907.38 collected in the Daedalus Bankruptcy and the $90,000 collected in the HMMH Bankruptcy. Because the December 2007 order was final, the district court lacked the authority under LoRusso to later vacate that order. Accordingly, the portions of the district court’s May 2015 and September 2015 rulings vacating its prior December 2007 order must be vacated.

The government advances two counterarguments. First, the government contends that the December 2007 order was interlocutory under the particular circumstances of this case because that order did not conclusively determine Yalincak’s entitlement to the amounts collected in the Daedalus and HMMH Bankruptcies, but was instead a conditional grant of credit contingent on Yalincak’s later production of evidence of the sums actually received by his victims in those proceedings. This assertion relies on language in the government’s response to Yalincak’s initial motion for credit — specifically, its request that Yalincak should provide notice to the government of “any distribution from the $1,050,907.38 ... to victims of the defendants’ fraudulent scheme by the bankruptcy trustee.” A. 34-35. The district court’s December 2007 order does not, however, condition its grant of Yalincak’s motion on proof of any such distributions; it simply and unconditionally grants Yalincak’s motions for credit. If the government believed that the district court misconceived its consent to Yalincak’s motion for credit, it was incumbent on the government to seek reconsideration or clarification of the court’s order.

Second, the government argues that the interlocutory nature of the December 2007 order was clear from the fact that Yalin-cak’s two motions for credit would not be his last and that the “[district court’s] work in resolving all issues related to Ya-lincak’s restitution obligations was far from over” in December 2007. Appellee’s Br. 29. That may be true, but it does not negate the fact that the district court made a final decision in December 2007 as to Yalincak’s entitlement to the $1,050,907.38 collected in the Daedalus Bankruptcy and the $90,000 collected in the HMMH Bankruptcy. To the extent that the government implicitly seeks a rule that motions for credit may not be appealed until a defendant has entirely discharged his or her restitution obligations, we reject that rule for all the reasons already discussed.

We recognize that a district court is afforded some degree of flexibility and discretion in discharging its duties under the MVRA. Monitoring a defendant’s restitution obligations is a complicated undertaking, and the MVRA’s procedural provisions recognize that by affording the district court flexibility in carrying out those responsibilities. Our decision today does not compromise that flexibility. The problems presented by this appeal were largely avoidable. A court need not make piecemeal rulings every time a defendant moves for credit under § 3664(j)(2). Where ruling on such a motion would be premature, as it was here, the district court may delay ruling on the matter until the issue is ripe for determination or deny the motion without prejudice to renewal. See Louper-Morris, 672 F.3d at 567; Malone, 747 F.3d at 489 & n.4; United States v. Taves, 150 Fed.Appx. 654, 655 (9th Cir. 2005). But where a district court makes a conclusive determination as to whether a defendant is entitled to credit under § 3664(j)(2) for particular funds, it cannot later vacate that final order simply because the order was prematurely or erroneously decided and the parties failed to pursue a timely appeal. We note that the district court’s desire to correct an error largely attributable to the government’s somewhat casual consent is understandable. Nevertheless, considerations of finality dictate that by the time the error was noticed, it was beyond the power of the court to correct.

CONCLUSION

For the foregoing reasons, we VACATE the portions of the district court’s May 11, 2015 and September 28, 2015 rulings that vacated its prior December 2007 order. We also VACATE the portions of those rulings that pertain to Yalincak’s entitlement to credit under § 3664(j)(2) for the sums collected in the Daedalus and HMMH Bankruptcies so that the district court may reassess those credits, taking into account those already granted to Yalincak in the December 2007 order. We REMAND the case for further proceedings consistent with this opinion.

      . The district court based this conclusion on Yalincak’s "specifically not[ing] that he anticipated filing a number of additional motions for credit in the future” when filing his initial two motions for credit. A. 283. In its ruling, the district court indicated that it was referring to the statement in Yalincak’s November 2007 motion for credit that "[t]he Bankruptcy Trustee has commenced approximately fourteen (14) adversary proceedings and the defendant anticipates that this procedure will constitute the principal avenue for restitution to the investors.” A. 37.

      . Yalincak also contends that the district court’s vacatur of the December 2007 order violated his rights to due process and against double jeopardy. Because we hold that the district court lacked the authority to vacate its December 2007 order and thus reinstate the credits that Yalincak was granted in that order, we need not address those arguments with respect to those credits. But see infra (discussing those arguments as applied to certain prospective aspects of the December 2007 order).

      . McGinn also disposes of Yalincak’s argument that the district court erred in its September 2015 ruling when it denied him credit for the funds collected in the Daedalus and HMMH Bankruptcies that were expended on administrative costs. Because those funds were not distributed to Yalincak’s victims, he cannot receive credit for them under § 3664(j)(2). See McGinn, 787 F.3d at 131.

      .Yalincak seeks to distinguish LoRusso on the basis that it does not concern post-judgment proceedings, but we see no reason why the "plenary power” that gives rise to a court’s ability to grant relief from erroneous interlocutory orders would not extend to post-judgment proceedings. 695 F.2d at 53. As
        LoRusso recognized, a court retains the power to correct errors until entry of final judgment. Id. Likewise, in the post-judgment context, a court may similarly exercise its "power to grant relief” from any mistakes in interlocutory orders so long as it retains jurisdiction over the post-judgment proceedings. See id. Some post-judgment orders, however, are final appealable orders. See In re Am. Preferred Prescription, Inc., 255 F.3d 87, 92-93 (2d Cir. 2001). The question here, therefore, is whether the order in question was interlocutory or final.

      . The parties agreed at oral argument that finality for the purposes of appealability is coextensive with finality for the purposes of a court’s authority to modify its previous orders under LoRusso. We see no reason to conclude otherwise.

      . Courts variously refer to § 3664(j)(2) motions as motions for credit, offset, or reduction. For the sake of consistency, we adopt the district court's terminology in referring to Yalincak’s motions as motions for credit.

      . We have implicitly treated garnishment orders as final and appealable. In United States v. Cohan, 798 F.3d 84, 89 (2d Cir. 2015), we reviewed two district court orders granting writs of garnishment that seized a defendant’s retirement account in order to satisfy the defendant's restitution obligations. Id. at 85. In affirming the district court, we noted that the defendant could "no longer appeal from the restitution order itself, which became final long ago” and instead took the appeal "from an alleged error in how the writ of garnishment hearing was conducted.” Id. at 89.

      . The Seventh Circuit has not expressly ruled on the appealability of an order resolving a motion for credit under § 3664(j)(2). While it has stated in dicta that "[a]n appeal may be available ... when a defendant has a fair argument that he has satisfied his restitution obligation,” United States v. Shah, 665 F.3d 827, 836-37 (7th Cir. 2011) (citation omitted), that language does not exclude the possibility that appeal of such orders may be available prior to full satisfaction of a defendant’s restitution obligations.

      . Indeed, if appeals of orders entered during post-judgment restitution proceedings were not available until a defendant’s restitution obligations were discharged entirely, it follows that we would not have jurisdiction over this appeal.

      . A defendant’s restitution obligations eventually expire. Under 18 U.S.C. § 3613, "[t]he liability to pay restitution shall terminate on the date that is the later of 20 years from the entry of judgment or 20 years after the release from imprisonment of the person ordered to pay restitution.” Id. § 3613(b); see also United States v. Berardini, 112 F.3d 606, 611-12 (2d Cir. 1997).

      . Yalincak also contends that the December 2007 order granted his request that "calculation of future restitution credits” be based on the amounts collected in the Daedalus Bankruptcy rather than on the sums actually distributed to his victims through those proceedings. Appellant's Br. 2. Yalincak bases that argument on the language in his initial motions seeking credit for "any and all funds” recovered in the Daedalus Bankruptcy. Assuming arguendo that the December 2007 order actually granted such relief, any such grant was an advisory opinion that the district court lacked the power to render because whether Yalincak could receive credits for such hypothetical amounts was an entirely "abstract or theoretical question[]” at that point in time. See, e.g., Abele v. Markle, 452 F.2d 1121, 1124 (2d Cir. 1971). Thus, while the district court’s grant of credit for the $1,050,907.38 collected in the Daedalus Bankruptcy at the time of the December 2007 order must stand, the district court is not bound to credit Yalincak for any additional sums that were later collected in the Daedalus Bankruptcy but not distributed to his victims.
      Yalincak's reading of the December 2007 order also serves as the basis for a variant of his due process and double jeopardy claims. As discussed supra in note 2, those claims are moot insofar as they arise from the district court's vacatur of credits for the specific sums collected as of December 2007 given that this opinion reinstates those credits. Yalincak also contends, however, that he relied on the assumption that the district court would calculate future restitution credits based on the amounts collected as opposed to distributed in the Daedalus Bankruptcy, and that he therefore did not contest the administrative expenses incurred in those proceedings as vigorously as he otherwise would have. Yalin-cak argues that this led to a violation of his rights to due process and against double jeopardy when the district court later excluded those administrative expenses from the amounts credited towards his restitution obligations.
      Even assuming arguendo that Yalincak was thereby prejudiced, his due process and double jeopardy claims nonetheless fail. Yalin-cak's right against double jeopardy was not violated because the total amount of restitution ordered never changed. Cf. United States v. Kyles, 601 F.3d 78, 83-84 (2d Cir. 2010) (finding no double jeopardy violation where the district court made modifications to a "restitution schedule” that “left untouched the pronounced amount of restitution” and thus worked "no change in sentence" (emphasis in original)). As to Yalincak's due process claim, the district court permitted additional briefing from the parties and held a status conference after Yalincak moved for reconsideration. That provided sufficient process. See United States v. Gushlak, 728 F.3d 184, 193 (2d Cir. 2013) (holding that decisions as to what types of procedure are necessary in restitution proceedings “lie within the discretion of the sentencing court and are reviewed for abuse of discretion” (internal quotation marks omitted)).

      . See, e.g., 18 U.S.C. § 3664(e) (providing that “[t]he burden of demonstrating such other matters as the court deems appropriate shall be upon the party designated by the court as justice requires”); id. § 3664(d)(6) (permitting the district court to refer any issue arising in connection with a proposed restitution order to a magistrate judge or special master, subject to the district court’s de novo determination of the issue).