216 F.3d 36 (D.C. Cir. 2000), 99-7032, Phoenix Consulting v. Republic of Angola

Docket Nº:99-7032
Citation:216 F.3d 36
Party Name:Phoenix Consulting, Inc., Appellee v. Republic of Angola, Appellant
Case Date:June 16, 2000
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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216 F.3d 36 (D.C. Cir. 2000)

Phoenix Consulting, Inc., Appellee


Republic of Angola, Appellant

No. 99-7032

United States Court of Appeals, District of Columbia Circuit

June 16, 2000

Argued January 27, 2000

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Columbia(No. 97cv01824)

Daniel Wolf argued the cause and filed the briefs for appellant.

Richard S. Sternberg argued the cause and filed the brief for appellee.

Before: Edwards, Chief Judge, Ginsburg, and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Ginsburg.

Ginsburg, Circuit Judge:

Phoenix Consulting sued the Republic of Angola for breach of contract, and Angola moved to dismiss the suit for lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. §§ 1330, 1602-1611. The district court, accepting as true for purposes of the motion the plaintiff's allegation that Angola had executed a contractual waiver of immunity, denied Angola's motion. Angola appeals from the court's order.

Because Angola's motion to dismiss raised a factual challenge to the court's subject matter jurisdiction under the FSIA, the district court erred in accepting as true the jurisdictional facts alleged by the plaintiff. Instead, the court should have settled any contested jurisdictional facts necessary to decide Angola's motion to dismiss. We therefore remand the matter to the district court for further proceedings consistent with this opinion.

I. Background

Phoenix Consulting, Inc., a United States affiliate of Phoenix Holdings, Ltd. of the United Kingdom (hereinafter collectively referred to as Phoenix), entered into an agency contract with Eduardo Neto Sangueve. Sangueve was authorized to negotiate the sale to the Republic of Angola of a prefabricated building owned by Phoenix and stored in Angola.

Sangueve proposed the sale in a meeting with Jose Anibal Rocha, Angola's Minister of Territorial Administration. The outcome of this meeting and the subsequent chain of events are disputed by the parties. Phoenix claims that Rocha, on behalf of Angola, contracted to purchase the building for $325,000 (U.S.), and that Angola had its agents remove the building from storage but never paid for it. Angola, in contrast, maintains that Rocha merely took Phoenix's proposal under consideration, and that neither he nor any other Angolan official contracted to purchase the building. Angola professes to have no knowledge of who removed the building from storage.

Phoenix filed suit in the Superior Court of the District of Columbia claiming Angola had breached its contract or, alternatively, had converted Phoenix's property or been unjustly enriched. After default judgment was entered in favor of Phoenix, Angola removed the case to the United States District Court for the District of Columbia. Angola then successfully moved the district court to vacate the default judgment and, prior to filing an answer to the complaint, moved to dismiss for, among other reasons, lack of subject matter jurisdiction under the FSIA. In response, Phoenix invoked three exceptions to immunity under the FSIA, any one of which would provide the district court with subject matter jurisdiction: waiver, 28 U.S.C. § 1605(a)(1); commercial activity, id. § 1605(a)(2); and a taking of property in violation of international law, id. § 1605(a)(3). In support of the waiver exception, Phoenix proffered evidence that Rocha, as Angola's agent, had executed a written sales contract containing a choice of law provision subjecting the contract to the jurisdiction and laws of the United

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States--which, according to the legislative history of the FSIA, would by implication have waived Angola's immunity from suit. See H.R. Rep. No. 94-1487, at 18 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6616-17. Angola replied with Rocha's sworn declaration that the signature on the written contract was a forgery and that Angola had never agreed to any contract, much less one containing a waiver provision.

The district court denied Angola's motion to dismiss. First it held that the choice of law provision would constitute a waiver of sovereign immunity. Then, stating that "[o]n motion to dismiss, the court is to consider all allegations of jurisdictional facts in [the plaintiff's] favor," the court concluded that Phoenix's allegation that Angola had executed the written contract would, if proven, establish that Angola had waived its sovereign immunity.

Angola brings this interlocutory appeal of the district court's order pursuant to 28 U.S.C. § 1291 and the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). See Jungquist v. Sheikh Sultan Bin Khalifa, 115 F.3d 1020, 1025-26 (D.C. Cir. 1997); Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 443 (D.C. Cir. 1990). Upon appeal, Angola raises only the following question of law: May a district court resolve a sovereign defendant's factual challenge to the court's subject matter jurisdiction...

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