United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 5, 2014 Decided November 25, 2014

No. 13-7115

EUGENE NYAMBAL,

APPELLEE

v.

THE INTERNATIONAL MONETARY FUND,

APPELLANT

Consolidated with 14-7025

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-01037)

Patrick J. Carome argued the cause for appellant. With 

him on the brief were Christopher L. Morgan and Adam I. 

Klein. 

John M. Shoreman argued the cause and filed the briefs 

for appellee. 

Before: TATEL and BROWN, Circuit Judges, and 

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.
2

BROWN, Circuit Judge: The International Monetary 

Fund’s (“Fund’s”) motion to dismiss this tort suit was 

converted into a discovery dispute when the district court, 

over the Fund’s objections, granted plaintiff’s request for 

jurisdictional discovery. The Fund sought reconsideration of 

the discovery order; the court denied it and separately 

disposed of the motion to dismiss as moot because the 

plaintiff had filed an amended complaint. Because we think 

more than a bare assertion that “something may turn up” is 

necessary to justify jurisdictional discovery in the face of the 

Fund’s broad immunity, we reverse.

I

Eugene Nyambal, a former senior advisor to the Fund, 

says he was terminated after raising allegations of corruption. 

Shortly after he and the Fund went their separate ways, Mr. 

Nyambal says he entered the Bank-Fund Staff Credit Union 

(“Credit Union”), a public credit union located in leased space 

on the Fund’s premises, to transact personal banking business 

and was “accosted” by the Credit Union’s security personnel 

who “escorted [him] from the Credit Union in full view of the 

public and a professional colleague . . . .” Complaint at 6 

¶ 13, Nyambal v. Int’l Monetary Fund, No. 1:12-cv-01037 

(D.D.C. May 2, 2014). Based on this incident, Nyambal filed 

suit against the Fund, asserting claims for assault, false 

imprisonment, and intentional infliction of emotional distress.

The Fund submitted affidavits categorically denying any 

express waiver of the absolute immunity conferred by its 

Articles of Agreement and the International Organization’s 

Immunity Act (IOIA), see generally Articles of Agreement, 

Art. IX § 3 (given force of law by 22 U.S.C. § 286h); IOIA, 

Pub. L. No. 79-291, 59 Stat. 669 (1945) (codified at 22 U.S.C. 
3

§ 288a(b)). When the Fund moved to dismiss, invoking its 

absolute immunity, Nyambal countered by moving to stay the 

dismissal motion and seeking jurisdictional discovery to show 

the Fund had expressly waived its immunity in its contracts 

with the Credit Union or the security services firm. Although 

the Fund’s affidavits confirmed no express waiver had been 

contemplated, presented to the Board, or approved, the district 

court authorized jurisdictional discovery. The Fund moved 

for reconsideration and voluntarily furnished complete copies 

of the Credit Union and security services contracts. The 

Fund’s overtures proved unavailing. The district court 

rebuffed its entreaty for reconsideration; in the court’s view, 

full disclosure of the two pertinent contracts did not, “obviate 

the need for further jurisdictional discovery.” Minute Order, 

Nyambal v. Int’l Monetary Fund, No. 1:12-cv-01037 (D.D.C. 

Feb. 12, 2014). 

The district court agreed with Nyambal that 

“inconsistencies in the contracts,” id., rendered

reconsideration ill-advised. Article 28 of the Credit Union 

lease contract expressly provides for non-waiver. See 

Patterson Aff. ¶ 2 (“[T]he Fund “does not, by virtue of this 

Lease, waive [its] immunities, which may only be waived by 

a decision of the Executive Board of the International 

Monetary Fund.”). Yet Article 13.1 provides that the Fund

“shall not be liable for any personal injury to, or damages to 

the personal property of, Tenant, Tenant’s . . . business 

invitees, . . . customers, clients, [or] . . . guests[,] . . . arising 

from the use, occupancy and condition of the Premises or the 

Building, unless such personal injury or damage to property 

resulted solely from the negligence or willful misconduct of 

the Landlord, its agents or employees.” Brief of DefendantAppellant at 48, Nyambal v. Int’l Monetary Fund, No. 13-

7115 (D.C. Cir. May 2, 2014) (emphasis added). Thus, in 

Nyambal’s—and the district court’s—view the second sub-
4

clause of Article 13.1 is suggestive of waiver or is otherwise 

in tension with Article 28’s broad and express denial.

In a separate order, issued the same day, the court also 

granted Nyambal’s motion to amend his complaint. In light 

of Nyambal’s amended complaint, the court denied the 

Fund’s motion to dismiss as moot.

Twice spurned below on the issue of jurisdictional 

discovery, the Fund now challenges the district court’s 

discovery orders on appeal. The Fund also contests the denial 

of its motion to dismiss. 

II

A couple of preliminary questions about our jurisdiction 

must be resolved before we can consider the substance of the 

Fund’s claims. Ordinarily, we have jurisdiction only to 

review final decisions of the district court, 28 U.S.C. § 1291, 

but under collateral order doctrine, section 1291 jurisdiction is 

available for a small subset of decisions which “finally 

determine claims of right separable from, and collateral to, 

rights asserted in the action, too important to be denied review 

and too independent of the cause itself to require [] appellate 

consideration to be deferred . . . .” Cohen v. Beneficial Indus. 

Loan Corp., 337 U.S. 541, 546 (1949). Thus, a decision may 

be collaterally appealed if it: [1] “conclusively determine[s] 

the disputed question, [2] resolve[s] an important issue 

completely separate from the merits of the action, and [3] [is] 

effectively unreviewable on appeal from final judgment.” 

Will v. Hallock, 546 U.S. 345, 349 (2006).

A district court’s grant of discovery against an absolutely 

immune defendant is sufficiently conclusive to qualify for 

collateral review. See generally Foremost-McKesson, Inc. v. 
5

Islamic Republic of Iran, 905 F.2d 438, 443 (D.C. Cir. 1990). 

“[A] trial court’s denial of an immunity defense entitles the 

defendant to an immediate appeal . . . .” In re Papandreou, 

139 F.3d 247, 251 (D.C. Cir, 1998). Just as a district court’s 

denial of sovereign immunity finally determines the foreign 

state’s right to be immune from the burden of a lawsuit, a 

court’s grant of jurisdictional discovery denies an 

international organization protection from similar burdens. 

See Beecham v. Socialist People’s Libyan Arab Jamahiriya, 

424 F.3d 1109, 1111 (D.C. Cir. 2005). “Here too . . .

immediate review is appropriate.” In re Papandreou, 139 

F.3d at 251. 

Similarly, the denial of a motion to dismiss on immunity 

grounds would satisfy the Cohen criteria for interlocutory 

review. Kilburn v. Socialist People’s Arab Jamahiriya, 376 

F.3d 1123, 1126 (D.C. Cir. 2004). However, in this case, the 

district court’s denial did not rest on the Fund’s claim of 

immunity. Instead, the court found Nyambal’s filing of an 

amended complaint mooted the motion to dismiss. Because 

the court did not resolve the question of immunity in denying 

the motion to dismiss, interlocutory review is available for the 

grant of jurisdictional discovery but not the determination of 

mootness. As the Fund itself concedes, Nyambal’s amended 

pleading “effect[s] no material change in his factual 

allegations or legal theories,” Brief of Defendant-Appellant at 

55, or otherwise requires more than a single renewal of the 

Fund’s pre-existing motion. 

III

Our review of “[a] foreign nation’s entitlement to 

sovereign immunity raises questions of law reviewable de 

novo.” McKesson HBOC, Inc. v. Islamic Republic of Iran, 

271 F.3d 1101, 1105 (D.C. Cir. 2001), vacated on other 
6

grounds, 320 F.3d 280 (D.C. Cir. 2003). See also Kirkham v. 

Société Air France, 429 F.3d 288, 291 (D.C. Cir. 2005). 

However, “we review the district court’s findings of fact—

including facts that bear upon immunity and therefore upon 

jurisdiction—for clear error; hence, . . . once the facts have 

been settled, we decide de novo whether those facts are 

sufficient to divest the foreign sovereign of its immunity.” 

Price v. Socialist People’s Libyan Arab Jamahiriya, 389 F.3d 

192, 197 (D.C. Cir. 2004). We apply the same analytical 

approach to an international organization’s claim of 

immunity.

In the context of the IOIA, we have noted that “immunity, 

where justly invoked, [] shields defendants not only from the 

consequences of litigation’s results but also from the burden 

of defending . . . .” Tuck v. Pan Am. Health Org., 668 F.2d 

547, 549 (D.C. Cir. 1981). The sweep of the Fund’s 

immunity is broader than the protection afforded by the 

IOIA’s aegis alone. Under the dual protections conferred by 

the Fund’s Articles of Agreement and the IOIA, “[t]he Fund . 

. . enjoy[s] immunity from every form of judicial process 

except to the extent that it expressly waives its immunity for 

the purpose of any proceedings or by the terms of any 

contract.” Articles of Agreement, Art. IX § 3; IOIA, Pub. L. 

No. 79-291, 59 Stat. 669 (1945). Nyambal does not dispute 

that the Fund is immune absent express waiver under its 

Articles of Agreement. In light of the Third Circuit’s decision 

in OSS Nokalva, Inc. v. European Space Agency, 617 F.3d 

756 (3d Cir. 2010), he nonetheless requests this Court to “revisit” its decision in Atkinson v. Inter-American Dev. Bank, 

156 F.3d 1335 (D.C. Cir. 1998), and narrow the scope of 

IOIA sovereign immunity for international organizations. We 

decline to do so. Atkinson remains vigorous as Circuit law; 

international organizations “enjoy the same immunity from 

suit and every form of judicial process as is enjoyed by 
7

foreign governments, except to the extent that such 

organizations [] expressly waive their immunity.” 156 F.3d at 

1337. See Critical Mass Energy Project v. Nuclear 

Regulatory Comm’n, 975 F.2d 871, 876 (D.C. Cir. 1992) 

(“[Prior] decisions . . . bind the circuit unless and until 

overturned by the court en banc or by Higher Authority.”).

The Fund argues that its multi-layered immunities warrant 

blanket protection from effectively all forms of jurisdictional 

discovery. Such a result is unwarranted; though unusually 

expansive, the Fund’s immunity may be defeated by a 

showing of express waiver. The Fund’s entitlement . . . to 

immunity from suit therefore remains “a critical preliminary 

determination” and the parties “must be afforded a fair 

opportunity to define issues of fact and law, and to submit 

evidence necessary to the resolution of the issues.” ForemostMcKesson, Inc., 905 F.2d at 449. While jurisdictional 

discovery may be warranted only in comparatively rare 

circumstances, it is appropriate where a plaintiff articulates a 

“specific, well-founded allegation that an express waiver 

exists.” Polak v. Int’l Monetary Fund, 657 F. Supp. 2d 116, 

122 (D.D.C. 2009); see Jacobs v. Vrobel, 724 F.3d 217, 221

(D.C. Cir. 2013) (looking to the “plausibility” of allegations, 

in the context of a waiver of immunity under the Federal Tort 

Claims Act). 

Nyambal stumbles at this threshold hurdle of plausibility. 

“[D]iscovery should be ordered circumspectly and only to 

verify allegations of specific facts crucial to an immunity 

determination.” First City, Texas-Houston, N.A. v. Rafidain 

Bank, 150 F.3d 172, 176 (2d Cir. 1998). Yet Nyambal relied

below upon little more than bare assertion in support of his

initial requests for discovery; for example, simply speculating

that the Credit Union and security service contracts would 

“undoubtedly address the [Fund’s] liability for actions arising 
8

from acts and occurrences related to” public transactions 

performed under the contract without offering any specific, 

non-conclusory factual allegations to explain why such 

contracts could plausibly be thought to incorporate an express 

waiver of the Fund’s immunity as to third party invitees. 

Plaintiff’s Response to Motion to Dismiss at 6, Nyambal v. 

Int’l Monetary Fund, No. 1:12-cv-01037 (D.D.C. Dec. 28, 

2012). Because Nyambal’s assertions amount to mere

“conjecture and surmise,” they cannot provide sufficient

support to justify jurisdictional discovery. Crist v. Republic 

of Turkey, 995 F. Supp. 5, 13 (D.D.C. 1998).

Moreover, the Fund’s subsequent voluntary disclosure of 

the Credit Union contract conclusively resolved any question 

of waiver.1

 Article 13.1 of the contract provides that the Fund 

“shall not be liable for any personal injury to or damage to . . . 

[the Credit Union’s] business invitees, . . . customers, clients, 

[or] . . . guests . . . unless such personal injury or damage to 

property resulted solely from the negligence or willful 

misconduct of the Landlord.” Brief of Defendant-Appellant 

at 48. Nyambal postulates that the “unless” sub-clause is an 

express waiver that directly contradicts the contract’s Article 

28 blanket non-waiver provision. He therefore argues that the 

Fund’s voluntary release of the contract did not eliminate the 

need for further discovery because, in his view, the contract 

“raise[s] more questions than [it] answer[s].” Brief of 

Plaintiff-Appellee at 18–20, Nyambal v. Int’l Monetary Fund, 

No. 13-7115 (D.C. Cir. June 4, 2014). 

Nothing in Article 13.1 of the Credit Union contract, 

however, directly contradicts Article 28’s broad language of 

 1 The Fund’s contract with the security services firm was also 

voluntarily furnished. Waiver under that contract is not directly 

contested on appeal.
9

non-waiver. Indeed, the thrust of the article’s intent is clear 

from its title: it deals with “limitations o[n] liability” to the

Fund under the contract. The article’s “unless” sub-clause

can readily be interpreted as a limitation on waiver where the 

Fund has already expressly waived its immunity, rather than a 

curiously obscure form of express waiver buried in a clause 

intended to limit the scope of liability owed by the Fund. 

See 17A Am. Jur. 2d Contracts § 384 (“No contract provision 

should be construed as being in conflict with another unless 

no other reasonable interpretation is possible.”). Read in 

context, the “unless” sub-clause of Article 13.1 is simply 

insufficient to be interpreted as constituting a potential 

express waiver warranting further discovery. Moreover, the 

Fund’s affidavits, e.g., Lin Aff. at ¶¶ 3–4, and the 

unambiguous language of Article 28’s contractual non-waiver 

clause require that any waiver of immunity occur through a

“decision of the Executive Board of the International 

Monetary Fund,” Patterson Aff. at ¶ 3 (quoting Article 28). 

Nyambal has not raised any specific, plausible assertion that 

the contracts contain an express waiver; or that the Board 

itself has actually ratified any purported contractual waiver;

nor has he otherwise suggested that an express waiver can 

occur in the absence of such ratification.2

 Consequently, the

Fund’s voluntary disclosure of the contested contracts did 

obviate the need for any further discovery. 

Nyambal raises a secondary argument that the Credit 

Union’s Article 15 indemnification clause is inexplicable 

 2 In addition to the Board ratification requirement of Article 28 of 

the Credit Union contract, the Fund’s affidavits assert any 

purported waiver is inoperative absent ratification under the Fund’s 

Articles of Agreement and its By-Laws. Lin Aff. at ¶ 3. Whether 

an express waiver of immunity in a contract signed by an executive 

officer of the Fund would be nullified by the absence of Board 

ratification is a question we leave for another day. 
10

absent an intention for the Fund to waive its immunity. 

Nyambal reasons that the contract thereby creates a 

“framework” to allow the Fund to expressly waive its 

immunity in the normal course of business. But a 

“framework” permitting the possibility of waiver is not a 

“specific, well-founded allegation that an express waiver 

[actually] exists.” Polak, 657 F. Supp. 2d at 122. It is

undisputed that the Fund “could” waive its immunities. 

Nyambal’s framework theory consists of nothing more than

unsupported speculation that the Fund “may” have done so.

IV

For the foregoing reasons we reverse the district court’s 

orders permitting jurisdictional discovery. We remand for 

further proceedings consistent with this decision.

So ordered.