# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 5, 2014 Decided November 25, 2014

No. 13

- 7115

E UGENE N YAMBAL
, A PPELLEE

v.

T HE I NTERNATIONAL M ONETARY F UND
, A PPELLANT

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 an d filed the briefs for appellee

.

Before: T ATEL and B ROWN

, Circuit Judges , and
S ILBERMAN
, Senior Circuit Judge

.

Opinion for the Court filed by Circuit Judge B ROWN

.2

B ROWN

, Circuit Judge : The International Monetary Fund’s (“Fund’s” ) motion to dismiss this tort suit was
converte d into a discovery dispute when the d istrict c ourt,

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 th e motion to dismis s 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 o f the
Fund’s broad immunity, we revers e.

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 co untered by moving to stay the dismissal motion and seeking jurisdiction al 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 expres s 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, Nya mbal v. Int’l Monetary Fund, No. 1:12

- cv

- 01037 (D.D.C. Feb. 12, 2014).

T he 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 Internati onal 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 Defendant

Appellant at 4 8, 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

. I n light of Nyambal’s amended complaint , the court denied the
Fund’s motion to dismiss as moot

.

Twice spurned below on the issue o f jurisdictional discovery, t he 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 decisi ons 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 gene rally 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 w ould satisfy the Cohen criteria for interlocutory
review. Kilburn v. Socialist People’s Arab Jamahiriya, 376 F.3d 1123, 1126 (D.C. Cir. 2004). H owever, in this case, the
district court’s denial did not rest on the Fund’s claim of immunity. Ins tead, 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 ent itlement 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 other6

grounds , 320 F.3d 280 (D.C. Cir. 2003). See also Kirkham v.
Société Air Fr ance , 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 w hether 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 “i mmunity, 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
54 7, 549 (D.C. Cir. 1981). T he 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 Agreem ent, 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 Agenc y , 617 F.3d 756 (3d Cir. 2010), he nonetheless requests this Court to “re

visit” 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
decl ine 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 by7

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. S uch a result is un warranted; 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 issue s of fact and law, and to submit evidence necessary to the resolution of the issues.” Foremost

McKesson, Inc.

, 905 F.2d at 449. W hile 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 relie d
below upon little more than bare assertion in support of his initial requests for discovery; for example , simply speculating
that the C redit Union and security service contracts would “undoubtedly address the [Fund’s] liability for actions arising8

from acts and occurrences related to ” public transactions performed under the contract without offering any specific,

non

- conclusory factual a llegations to explain why such contracts could plausibly be thought to incorporate an express waiver of the Fund’s immunity as to third part y 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] busin ess 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 contra dicts the contract’s Article
28 blanket non

- waiver provision

. H e 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 co ntradicts Article 28’s broad language of

1 The Fund’s contract with the security services firm was also voluntarily furnished. W aiver 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 inter preted 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, t he 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 t he 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 “spec ific, 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.