United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 4, 2011 Decided March 15, 2011

No. 10-7040

FG HEMISPHERE ASSOCIATES, LLC,

APPELLEE

v.

DEMOCRATIC REPUBLIC OF CONGO,

APPELLANT

SOCIETE NATIONALE D'ELECTRICITE,

APPELLEE

Consolidated with 10-7046

Appeals from the United States District Court

for the District of Columbia

(No. 1:03-cv-01315)

Sharon Swingle, Attorney, U.S. Department of Justice,

argued the cause for amicus curiae United States for appellant. 

With her on the brief were Tony West, Assistant Attorney

General, Ronald C. Machen Jr., U.S. Attorney, Douglas N.

Letter, Attorney, and Harold Hongju Koh, Legal Adviser, U.S.

State Department.
2

Jeremy C. Martin argued the cause for appellant. On the 

briefs were Stephen F. Malouf and Jonathan A. Nockels. 

Eric A. Shumsky argued the cause for appellee FG

Hemisphere Associates, LLC. With him on the brief were

Bradford A. Berenson, James W. Coleman, and Angela M.

Xenakis. Neil H. Koslowe entered an appearance.

Before: GINSBURG and GARLAND, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the court filed by SILBERMAN, Senior Circuit

Judge. 

SILBERMAN, Senior Circuit Judge: This case, once

pared down, is really less than meets the eye. To be sure, we

encounter for the first time a contempt sanction imposed on a

foreign sovereign in a proceeding brought under the Foreign

Sovereign Immunities Act (“FSIA”). But there has been as yet

no attempt to enforce the sanction (which could prove

problematic).

FG Hemisphere’s predecessor-in-interest (which we will

refer to along with FG Hemisphere as “Hemisphere”), brought

suit against the Democratic Republic of Congo (“DRC”) under

a provision of the FSIA permitting a plaintiff to confirm an

arbitration award secured against a foreign sovereign. 

Following entry of a default judgment, and after the DRC began

participating in the litigation, the district court sanctioned the

DRC for failing to respond to court-ordered discovery. The

DRC, supported by the United States as amicus, argues that such

contempt sanctions are unavailable under the FSIA, and, in any

event, are an abuse of discretion. We disagree.

I
3

In 1980, the DRC and its state-owned electric company

entered into a credit agreement with Hemisphere to finance

construction of an electric power transmission facility. The

DRC failed to make the payments required of it under the

agreement, and in 2003 Hemisphere began arbitration

proceedings for those delinquent payments, obtaining two

awards against the DRC. The DRC did not participate in

arbitration.

Hemisphere sought judicial recognition of the arbitration

awards against the DRC in 2004. Although foreign states are

generally immune from the jurisdiction of U.S. courts, 28 U.S.C.

§ 1604, the FSIA contains several exceptions to this rule. One

permits a plaintiff to bring suit against a sovereign “to confirm

an award made pursuant to . . . an agreement to arbitrate,” 28

U.S.C. § 1605(a)(6). Proceeding under this exception,

Hemisphere sued the DRC. The DRC did not appear before the

district court either to contest the court’s jurisdiction or to

litigate the merits of the arbitration award. Accordingly, the

district court entered two default judgments against the DRC.

Hemisphere then sought to execute on the judgments. 

The FSIA limits the assets that are available to satisfy a

judgment against a foreign sovereign. Where “the judgment is

based on an order confirming an arbitration award,” a plaintiff

may only execute on “[t]he property in the United States of a

foreign state . . . used for a commercial activity in the United

States.” Id. § 1610(a)(6). In 2005, Hemisphere propounded

post-judgment discovery requests to identify the DRC’s

commercial property in the United States available for

execution. The DRC, by now participating in the litigation,

failed to respond to these discovery requests, and in 2006 the

district court, with the consent of both parties, imposed a twopart discovery plan. In part one, the court required the DRC to

turn over information regarding any real property it owned
4

located in the District of Columbia. In part two, the court

required the DRC to provide information on any DRC assets

valued over $10,000 and located outside the District of

Columbia, both within the United States and in other countries

where Hemisphere might seek to execute on its judgments. 

The DRC never complied with part two of the discovery

order. It produced only documents identifying real property

within the District (which it claimed were immune from

execution).1

 The district court concluded, therefore, that the

DRC’s responses “fell woefully short of compliance.” FG

Hemisphere Assocs., LLC v. Democratic Republic of Congo, 603

F. Supp. 2d 1, 2 (D.D.C. 2009). In March 2009 – nearly threeand-one-half years after Hemisphere first sought discovery and

two years after the court ordered the DRC to produce documents

in response to part two of the court’s discovery plan – the court,

on Hemisphere’s motion, found the DRC in civil contempt. It

again ordered the DRC to comply with the outstanding

discovery requests, and granted Hemisphere’s request for fees

1

 These documents identified two properties that had housed DRC

diplomatic officials until the mid-1990s, when political disruptions

resulted in their removal from office, but not from the residences. The

district court entered an execution order to enforce the judgment

against these properties. Several months later, the DRC filed a motion

to quash the execution order, arguing that its failure to respond earlier

was due to “excusable neglect,” and that the properties were immune

from execution under the FSIA. The district court denied the motion;

we reversed and remanded, explaining that the DRC had shown

excusable neglect. See FG Hemisphere Assocs., LLC v. Democratic

Republic of Congo, 447 F.3d 835, 836 (D.C. Cir. 2006). We also

suggested that the properties likely were not subject to execution. See

id. at 843. Hemisphere decided not to seek enforcement of its

judgments against these properties. Nevertheless, the DRC

reproduced the documents identifying the diplomatic properties in

response to part two of the discovery order – an obvious non sequitur.
5

and expenses resulting from the DRC’s failure to comply with

its discovery obligations. The court gave the DRC thirty days

to complete discovery, or to show cause why a fine payable to

Hemisphere should not be imposed in the amount of $5,000 per

week, doubling every four weeks until reaching a maximum of

$80,000 per week, until DRC satisfied its discovery obligations. 

Id. at 2-3.

Before the sanctions began accruing, the DRC moved to

vacate the contempt order, arguing that the FSIA does not

authorize contempt sanctions against foreign sovereigns. The

DRC indicated that it had asked the United States to participate

in the litigation and express its position on whether the district

court may impose sanctions on a foreign sovereign. The

government, however, did not appear before the district court.

The court denied the DRC’s motion a year later. This appeal

followed, in which the government (four years after the DRC’s

request) has filed an amicus brief supporting the DRC.

II

The DRC’s brief here embraced the government’s

amicus brief filed in a Fifth Circuit case, Af-Cap Inc. v. Republic

of Congo, 462 F.3d 417 (5th Cir. 2006), which presented a

question similar to the one we consider here. Thereafter, the

government filed its amicus brief in this case, which closely

follows its prior amicus brief. We therefore must first parse the

government’s arguments – and that is no mean feat. The

government’s position is quite confusing, conflating a contempt

order imposing monetary sanctions with an order enforcing such

an award through execution. The government emphasizes that

under the FSIA, a court is quite limited in executing a judgment

against a foreign sovereign, and that no provision of the FSIA

explicitly permits a plaintiff to execute on a sovereign’s assets

to enforce a contempt order. It argues that since the district
6

court could not enforce its civil contempt order against the DRC,

the court should not have issued it. It is unclear whether the

government is contending that the district court lacked the

power under the FSIA to issue the contempt order, or only that

equitable considerations counsel restraint, or both. 

In its appeal to equity, the government advances several

considerations to illustrate why the contempt sanctions were

improper. These range from the asserted unseemliness of a

court ordering a contempt sanction it cannot enforce (and the

supposed unnecessary severity of the sanctions), to principles of

comity arising from both international practice and the

government’s international relations concerns. The government

also raises another equitable issue, one not presented by the

DRC to either the district court or to us on appeal: the discovery

order is allegedly overbroad because it seeks discovery on DRC

assets that are not available for execution under the FSIA.

Hemisphere responds that the district court has inherent

authority to issue civil contempt orders to control proceedings

– which neither the government nor the DRC really disputes –

and that the FSIA does not restrict that authority. Then, and

central to its argument, it contends that we do not have before us

even a shadow of an enforcement question; the district court has

not attempted to execute on its contempt order. Both the

government and the DRC blithely ignore this last point. Finally,

Hemisphere defends the district court’s order as within the

court’s discretion because of the DRC’s obdurate refusal to

comply with the discovery order.

* * *

The FSIA is a rather unusual statute that explicitly

contemplates that a court may have jurisdiction over an action

against a foreign state and yet be unable to enforce its judgment
7

unless the foreign state holds certain kinds of property subject

to execution. See De Letelier v. Republic of Chile, 748 F.2d

790, 798-99 (2d Cir. 1984) (plaintiff may hold a right without a

remedy under the FSIA). Otherwise a plaintiff must rely on the

government’s diplomatic efforts, or a foreign sovereign’s

generosity, to satisfy a judgment. Therefore, it is not anomalous

to divide, as Hemisphere does, the question of a court’s power

to impose sanctions from the question of a court’s ability to

enforce that judgment through execution. Hemisphere’s

contention that whether the court can enforce its contempt

sanction is irrelevant to the availability of a contempt order is

consistent with the statutory scheme. 

* * *

It is incontrovertible that federal courts enjoy inherent

contempt power. See Spallone v. United States, 493 U.S. 265,

276 (1990); Young v. United States ex rel. Vuitton et Fils, S.A.,

481 U.S. 787, 795 (1987); Shillitani v. United States, 384 U.S.

364, 370 (1966). That power runs with a court’s jurisdiction,

see 11A Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 2960 (2d ed. 2010), and jurisdiction

here is undeniable. Although Congress can limit that authority,

it must do so through a “clear and valid legislative command,”

Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946), a

command that will not be “‘lightly assume[d],’” Chambers v.

NASCO, 501 U.S. 32, 47 (1991) (quoting Weinberger v.

Romero-Barcelo, 456 U.S. 305, 313 (1982)).

As the Seventh Circuit has recognized, there is not a

smidgen of indication in the text of the FSIA that Congress

intended to limit a federal court’s inherent contempt power. 

Autotech Techs. v. Integral Research & Dev., 499 F.3d 737, 744

(7th Cir. 2007). Nor is there any legislative history supporting

such a claim. Indeed, the House Report to the FSIA
8

demonstrates that Congress kept in place a court’s normal

discovery apparatus in FSIA proceedings. See H.R. Rep. No.

94-1487, at 23 (1976) (“The bill does not attempt to deal with

questions of discovery. Existing law appears to be adequate in

this area.”). And the same report illustrates that Congress

specifically contemplated that contempt sanctions would be

available under the FSIA as a remedy for discovery violations: 

[If] a private plaintiff sought the

production of sensitive governmental

documents of a foreign state, concepts of

governmental privilege would apply. Or

if a plaintiff sought to depose a diplomat

in the United States or a high-ranking

official of a foreign government,

diplomatic and official immunity would

apply. However, appropriate remedies

would be available under Rule 37, F.R.

Civ. P., for an unjustifiable failure to

make discovery.

Id. (emphasis added); see also Fed. R. Civ. P. 37(b)(2)(A)(vii)

(sanctions available for failure to abide by court-ordered

discovery).

The government points only to the testimony of a State

Department deputy legal advisor asserting that although the

FSIA does not “explicitly preclud[e] a court from imposing a

fine on a foreign state [for] failure to comply with a court

order,” the legislative history of the statute “suggests” that such

sanctions would be unavailable. Foreign Sovereign Immunities

Act: Hearing on H.R. 1149, H.R. 1689, and H.R. 1888 Before

the Subcomm. on Admin. Law and Government Relations of the

H. Comm. on the Judiciary, 100th Cong. 19 (1987), reprinted in

2 William H. Manz, Foreign Sovereign Immunities Act of 1976
9

with Amendments: A Legislative History of Pub. L. No. 94-583

(2000). But this statement seems to us to be more a wish than

an interpretation – the legislative history supports precisely the

opposite proposition. Paradoxically, the deputy legal advisor

took a different position a year earlier, urging Congress to limit

the availability of contempt sanctions against foreign states. See

Arbitral Awards: Hearing on H.R. 3106, H.R. 3137, F.R. 4342,

and H.R. 4592 Before the Subcomm. on Admin. Law and

Government Relations of the H. Comm. on the Judiciary, 99th

Cong. 52 (1986), reprinted in 1 Manz, supra. 

To be sure, the Fifth Circuit in Af-Cap Inc., upon which

the government and the DRC heavily rely, held that a contempt

order requiring the Republic of Congo to pay money into the

court’s registry and send its business associates notice of an

outstanding judgment was inconsistent with the FSIA. The

court concluded that “[sections 1610 and 1611 of the FSIA]

describe the available methods of attachment and execution

against property of foreign states. Monetary sanctions are not

included.” Af-Cap, 462 F.3d at 428. Although the Seventh

Circuit in Autotech distinguished Af-Cap on the grounds that the

Fifth Circuit did not purport to decide the antecedent “power”

question, i.e. whether the statute precluded the contempt order,

see Autotech Techs., 499 F.3d at 745, it does seem to us that the

Fifth Circuit accepted the government’s litigating effort to

conflate the power to impose a contempt sanction with the

authority to enforce it (as we noted, the government apparently

filed a similarly confusing brief in that case). In any event, since

the Fifth Circuit never considered the distinction between the

two types of orders, we do not regard its decision as persuasive.2

2

 The government requests that we give deference to its

conclusion that the FSIA does not permit a court to enforce a contempt

sanction. But that is not the issue before us, and in any event, the

request for deference is doctrinally unsound. Although the views of
10

We agree with the Seventh Circuit that contempt sanctions

against a foreign sovereign are available under the FSIA.

III

As we noted, both the DRC and the United States assert

that principles of equity and comity demonstrate that the district

court should not have imposed sanctions here. We review a

district court’s contempt finding and the imposed sanctions for

abuse of discretion. In re Fannie Mae Secs. Litig., 552 F.3d

814, 818 (D.C. Cir. 2009).

The government’s and the DRC’s reasons for appealing

to equitable discretion are rather insubstantial. The first – that

a court should not issue an unenforceable order – simply

quarrels implicitly with the statutory scheme, and therefore can

be easily dismissed. The second is that the district court’s

contempt order was excessive, because it is more onerous than

necessary to cure appellant’s intransigence. We do not see how

that argument can seriously be advanced in light of the DRC’s

continued intransigence. The suggestion that adverse

evidentiary presumptions could be employed seems puerile

because judgment has already been rendered. Perhaps even

more nonsensical is the government’s assertion that the district

court should have ordered “targeted discovery” as a sanction for

the DRC’s contemptuous failure to respond to discovery.

Third, the government argues, more seriously, that the

discovery order is overbroad because it seeks information on

property that is not subject to attachment or execution under the

FSIA – indeed it reaches property beyond the United States,

the United States on the meaning of FSIA “are of considerable interest

. . ., they merit no special deference.” Republic of Austria v. Altmann,

541 U.S. 677, 701 (2004).
11

outside of the district court’s jurisdiction. We simply cannot

entertain this argument because it was not raised before the

district court in opposition to the contempt order and it was not

even presented by the DRC before us; it was only raised in the

government’s amicus brief. Although, as we observe below,

there might be unusual circumstances where the government

could raise a new issue as amicus in the court of appeals, this is

certainly not one of them. It would be patently unfair to

Hemisphere, and disrespectful to the district judge, for us to

entertain such an issue first in the court of appeals. See Eldred

v. Reno, 239 F.3d 372, 378 (D.C. Cir. 2001).3

* * *

We turn to the government’s and the DRC’s comity

arguments based on international practice and, as a separate

although related matter, the government’s foreign relations

concerns. Although it may be true, as the government contends,

that at least several countries have explicitly prohibited

monetary sanctions against a foreign state for refusal to comply

with a court order, that seems quite irrelevant because our

Congress has not. And we should bear in mind that our

discovery process is extraordinarily extensive compared to that

of most foreign legal systems. See Joseph W. Dellapenna, Suing

Foreign Governments and Their Corporations 652-53 (2d ed.

2003)

The government also suggests that we should be

concerned about the consequences of affirming the district

court’s order given possible reciprocal treatment of the United

States in foreign courts. Although we often give consideration

3

 If the DRC were to comply with the discovery order regarding

property in the United States, the district court might modify the

contempt order.
12

to the government’s assertion that a legal action involves

sensitive diplomatic considerations, we only defer to these views

if reasonably and specifically explained. See Altmann, 541 U.S.

at 702. The government does not explain how the United States

would be harmed if it were found in contempt under reciprocal

circumstances. The broad, generic argument that the

government offers here seems to us to be appropriately

presented to Congress – not us. The government, moreover, did

not present its foreign policy concerns to the district court. We

do recognize that there could be circumstances in which

particular pressing foreign policy concerns involving a

defendant country could affect a court’s decision, and those

concerns, depending on their timing, could justify the

government’s presenting those matters first in an amicus brief in

the court of appeals, but the government has not presented any

such argument in this case.4

IV

We hold today only that the FSIA does not abrogate a

court’s inherent power to impose contempt sanctions on a

foreign sovereign, and that the district court did not abuse its

discretion in doing so here. The district court’s order is

Affirmed.

4

 The DRC also opines that the contempt sanctions may be

detrimental to the United States’s relationship with the DRC. But the

views of a party that is not the United States – even a foreign

sovereign – on the effect of a particular legal action on United States

foreign policy are not entitled to deference.