Peter Odhiambo v. Republic of Kenya

conclusion, evi- none of the In mation.9 ODHIAMBO, Appellant George undermines Peter by Appellant presented

dence cer- Micro’s Ingram on reliance Govplaee’s information the COO regarding tification products. four HP

for the KENYA, Foreign OF REPUBLIC State, al., Appellees. et

III. properly exercised District Court 13-7100. No. managing dis- significant discretion Appeals, part Appellant’s it covery when denied 56(d) as to Circuit. discovery request certain of Columbia Rule District denied, there request theWith products. 8, 2014. April Argued as to material dispute any genuine not was find error do not We therefore facts. Aug. 2014. Decided judgment to Gov- summary grant in its to the federal it sold products as to con- its FirstSource under government market,

tract, and as to open gov- to their pursuant by New Tech

sale agreement teaming authorized

ernment Govplace.

with reasonably Govplace conclude that certifica- Micro’s COO Ingram

relied on failed to raise thus Appellant

tion. has material fact whether issue of

genuine sold to federal

Govplace knowingly comply not that did products

government prerequisite requirements, TAA Accordingly, affirm. liability. we

FCA ordered.

So admissible, Gov see Albright’s declaration Trade compliant with the are manufacturer (discussing its Act.”). F.Supp.2d at 128-29 place, Agreements regarding the admissibili concerns” "serious Appellant on the declaration also relied 9. accurate, declaration), and Albright's ty Dr. the un- Jeremy to demonstrate Albright Dr. ("[T]he report Albright at 59 Appellee Br. In- Govplace's reliance on reasonableness of consid acknowledge, let even alone failed to Appellant Br. certification. gram Micro's compli er, exceptions TAA numerous Albright’s declaration asserts Dr. ance, con set aside including small business 1,375 goods the federal "Govplace sold businesses...."), it does small tracts for in non- were manufactured government that Govplace knew at any bearing what have arriving designated J.A. 912. countries.” Appellant transactions because the time conclusions, part Albright relied Dr. at his indicating that produce evidence failed to produced in the course on COO information knowledge infor of this COO Govplace had Gov- litigation did not involve of another Thus, assuming Dr. mation. even place. J.A. 913. Ludwig argued Robert W. the cause and appellant. filed the briefs for With him on the briefs were W. Clifton Holmes and Thomas K. Kirui. offered, that was contract —a contract the cause for argued Ackerman

David I. performed accepted, was Dan- the brief him on With appellees. —lacks to the United States re- the connection D. Barnowski. iel activity excep- quired by the KAVANAUGH, GRIFFITH, Before: 1605(a)(2). tion to the FSIA. See id. PILLARD, Judges. Circuit conclude, District as did the therefore Court, bars Odhiambo’s FSIA by filed Circuit for the Court Opinion suit. We affirm. KAVANAUGH, Circuit with whom Judge joins. Judge GRIFFITH I concurring part Opinion history, of our Nation’s For most Judge part filed Circuit dissenting enjoyed virtually abso foreign sovereigns PILLARD. immunity in U.S. courts. lute from suit KAVANAUGH, Judge: Circuit v. Bank B.V. Central See Verlinden of on tax crack down Kenya wanted to 480, 486, 1962, 103 Nigeria, 461 U.S. S.Ct. the Ken- help from evasion. So it enlisted (1983); 81 The Schooner Ex 76 L.Ed.2d Kenya Revenue Authori- yan public. The M’Faddon, 116, 136-46, 11 v. U.S. change monetary re- promising an ad ty issued (1812) (Mar 116, L.Ed. 287 7 Cranch 3 information about exchange wards C.J.). 1952, shall, changed That when offer, by that taxes. Enticed undisclosed and then the courts Department the State Peter employee bank Kenyan private theory” of sover adopted the “restrictive the whistle on hundreds blew Odhiambo restrictive the immunity. Under the eign tax deficien- potential accountholders with immunity for foreign states retain ory, by making some Kenya responded cies. private acts but not for sovereign public But payments to Odhiambo. rewards Republic See Austria commercial acts. entitled to claimed that he was Odhiambo 677, 689-91, Altmann, 124 v. 541 U.S. got word out more. When more—millions (2004); 2240, 1 Verlin 159 L.Ed.2d S.Ct. informant, Odhiambo that he was an 486-88, den, 1962. 103 S.Ct. Kenyan officials safety, and feared for his Immunities Act Foreign Sovereign In the to the United ultimately move helped 1976, restrictive Congress codified the then sued refugee. as a scope further defined theory Washing- in federal district court Kenya immunity. Pub.L. foreign sovereign ton, D.C., contract based on for breach of then, 94-583, 90 2891. Since No. Stat. underpayment of rewards Kenya’s alleged sole basis for ob “the provided FSIA has to Odhiambo. foreign state jurisdiction over taining Republic v. Amer Argentine Immuni- our courts.” Foreign Sovereign

Under 428, Corp., 488 U.S. Shipping Hess Act, are immune ada foreign governments ties (1989); 434, 683, L.Ed.2d 818 102 plain- 109 S.Ct. courts unless from suit U.S. Royal Kingdom Saudi the statute’s see Peterson falls into one of tiffs claim (D.C.Cir.2005). Arabia, 86 See 28 U.S.C. exceptions. enumerated reiterated, recently Supreme As the argues that his claims § 1604. Odhiambo “comprehensive set supplies a the FSIA waiver and satisfy the FSIA’s immu claims of governing legal has not standards But activity exceptions. foreign against a every civil action nity in courts “either immunity U.S. waived its v. NML Argentina implication.” Id. state.” or explicitly — -, Ltd., 1605(a)(1). U.S. Capital, breach Kenya’s alleged And (2014) (quot- L.Ed.2d amounting to 3% of the taxes collect- Verlinden, ing 461 U.S. at 103 S.Ct. ed.”

1962). essence, In program J.A. 16. the rewards FSIA, a district court

Under encouraged whistleblowers to come for subject jurisdiction has matter over a suit ward with information about tax evasion only state if—and if—the by offering proceeds— them a share of the plaintiffs statutorily claim falls within a country’s not unlike our False Act Claims exception. enumerated See 28 U.S.C. qui common law tam action. See 31 1330(a), 1604, words, §§ other 3729-3733; §§ Agency U.S.C. Vermont exhaustive; if exceptions FSIA are no Natural Resources v. United States ex rel. mercial when “the action jurisdiction. See Saudi Arabia v. act cial tion, which permits a suit when this case. The first eign explicitly § L.Ed.2d 47 Stevens, exception applies, the district court has no Two 1605(a)(1). performed activity exception, state has waived its FSIA activity or (1993); foreign The second is the commer- in the United States in con- exceptions carried on in the United based Peterson, is the waiver state; which permits a suit implication.” immunity are relevant ^[1] or upon 416 F.3d at ^[2] “the upon an Nelson, a com- excep- either for- Id. year shillings private Kenyan bank called Charterhouse The accountholders in Bank. In al payment over records implicating more than 800 effect on Peter Odhiambo with an initial At some The rewards Kenyan later, Kenya (about $3,300). April point, Revenue shillings Authority Odhiambo, program roughly 146 L.Ed.2d 836 Charterhouse possible Authority 768 & (about Odhiambo turned made an addition- had its intended 250,000 an auditor at a tax evasion. n. $2,600). apparently 1, 774-77, rewarded Kenyan of (2000). 200,- A learned that Odhiambo was the informant nection with a foreign state elsewhere; ^[3] upon an act behind the investigation. Odhiambo then reported receiving disquieting phone calls territory outside the of the United States him telling Kenya. to leave He was also in connection with a harassment, victim alleged police foreign state elsewhere and that act which reported Kenya he to the National causes a direct effect in the United Commission Rights. Believing on Human 1605(a)(2). States.” Id. risk, safety Kenyan officials dispute here arises from an “Infor- supported application his asylum for mation developed by Reward Scheme” United States. He granted asylum was Kenya Authority Revenue public to enlist and arrived here as a refugee Septem- cooperation in enforcing Kenya’s tax laws. ber 2006. persons The scheme “rewards provide who information as below: relocation, Before and after his Odhiam-

(cid:127) leading Information to the bo Kenya insisted that owed him more identifica-

tion of hitherto undisclosed taxes —a money tips for the that he provided had amounting reward to 1 % of the tax about tax evasion at Charterhouse. Odhi- [up [100,- identified to] maximum of pressed ambo through claims written Kenyan shillings]. correspondence and in face-to-face meet- (cid:127) leading Information recovery ings Kenyan to the officials unsatisfied,

hitherto undisclosed taxes —a reward States. Still Odhiambo sued law, with the case waiver as inconsistent in federal of contract for breach Kenya implicit only where which has found waiver He Washington, D.C. court district point “at some indi state had in dam million sought approximately $24.5 amenability to suit.” cated its Odhiambo Kenya’s al compensate ages 17, 24 Kenya, F.Supp.2d Republic v. of rewards. underpayment leged (Odhiambo I) (D.D.C.2013) (quoting Kenya, 930 Republic Odhiambo Germany, Federal Princz v. (D.D.C.2013) (Odhi 17, 20-24 F.Supp.2d (D.C.Cir.1994)). 1166, 1174 Odhi 26 F.3d I). ambo argument this ambo does not renew Odhiam- moved to dismiss Kenya it. appeal, so we do consider sovereign im on its complaint bo’s based now claims that courts. The District suit in U.S. munity to sovereign immunity with re waived its Kenya that the FSIA agreed with like his when it acceded to spect to claims review id. at 23-35. We the suit. See bars Relating to the Status the 1951 Convention immunity sovereign the District Court’s for two alterna Refugees. disagree novo. See Cruise Con de determination First, independent reasons. tive and Management LP v. nections Charter court, to the district Odhi- his submissions Canada, Attorney General of Refugee Con ambo did not mention (D.C.Cir.2010). vention, much less contend that sovereign constituted a waiver of accession II has courts. Odhiambo immunity exceptions two invokes FSIA Odhiambo argument. forfeited this therefore jurisdiction court over establish district Minerals, Ltd. v. World Wide of commercial activi- suit: the waiver and his Kazakhstan, 1154, n. 10 1161 & in turn. consider each ty exceptions. We (D.C.Cir.2002). Second, even if we were timely failure to raise overlook Odhiambo’s A merit. it would have little argument, this that the FSIA first contends Odhiambo of ambiguous generic language and The the waiver his suit because does not bar far Refugee Convention falls short the exception applies. The waiver exception for waivers exacting showing required the part sovereign provides relevant immunity. See id. foreign sovereign “foreign when a immunity apply will not Indeed, has ex Supreme Court 1162. immunity either ex- waived its state has foreign a that it cannot “see how plained 28 U.S.C. plicitly by implication.” or immunity under can waive its state 1605(a)(1). § 1605(a)(1) by an international signing § court, argued Odhiambo In the district a that contains no mention of agreement Kenya implicitly had waived its sover- to suit in United immunity waiver States immunity to suit eign Republic v. Argentine States courts.” facilitating asylum here. es- by Shipping Corp., Hess Amerada sence, claim was 102 L.Ed.2d 818 Odhiambo’s 109 S.Ct. (1989). exception allowed to collect both the waiver to the FSIA should not be The contract suit. permit on the does not benefits of his immunity sovereign and the benefits B simultaneously reneging on its bar- while an environment in which next relies on the gain creating exception applies That country. activity exception. District had to flee the The he implicit when rejected conception Court

the action is based ^[1] upon a commer- § 1605(a)(2) (emphasis added). As the Su- activity preme explained, cial carried on has a claim is by foreign state; or ^[2] upon “based upon” activity if performed activity an act the United States in one establishes of the “elements of that, activity with a commercial if proven, connection claim would entitle a foreign state elsewhere; ^[3] upon plaintiff relief under his theory territory Nelson, an act outside the the Unit- case.” 507 U.S. at with a words, ed States connection commer- alleged In other com- activity foreign cial else- state activity mercial must “a establish fact where and that act causes a direct effect plaintiff without which the will lose.” in the United States. France, Kirkham v. Société Air 429 F.3d (D.C.Cir.2005); see Goodman 1605(a)(2). § 28 U.S.C. Bank, Holdings Rafidain (D.C.Cir.1994) (commercial activity Clause one of the commercial unrelated to claim “legally elements of exception permits foreign a suit irrelevant”). seriously Odhiambo does not sovereign plaintiffs when the “action is meetings Kenyan contend that his upon based a commercial carried officials in the United States establish by in the United States fact without which his breach-of-contract Id, 1605(a)(2). § state.” FSIA claim will fail. He pro- therefore cannot phrase turn defines “commercial activi- ceed under clause one. ty carried on appeal, On Odhiambo asserts a new foreign state” to mean “commercial activi- (i) twist. He contends that re- ty carried on such state having wards offer constitutes a commercial activ- substantial contact with the United ity by foreign state on which his claim is 1603(e). Thus, States.” Id. to invoke (ii) based, and the asserted commercial jurisdiction the district court’s under activity had substantial contact with the one, plaintiffs clause claim must be United States because of meetings his upon “based some activity by” commercial Kenyan officials the United States.1 As foreign “that state had substantial con- matter, an initial Odhiambo failed to raise tact with the United States.” Saudi Ara- argument this in the district court and Nelson, bia v. 507 U.S. therefore has forfeited it. But if even we 1471, (1993) (internal 123 L.Ed.2d 47 quo- consider Odhiambo’s new theory, his inter- omitted). tation marks pretation of clause doubly one is flawed court,

In the district First, Odhiambo al under our case law. our cases have leged several instances of commercial ac held that mere meetings business tivity by Kenya that had substantial con United States do not suffice to create sub- tact with the including United stantial contact with the United States for meetings Kenyan that officials purposes. held with these Kingdom See Zedan v. Arabia, him in the United States to 1511, discuss the Saudi 849 F.2d 1513 disputed problem (D.C.Cir.1988); rewards. The for Odhi- Maritime International that ambo is his breach-of-contract claim is Nominees Establishment ” Guinea, (D.C.Cir. not upon activity. 1094, “based that 28 U.S.C. 1109 (D.D.C.2013) (Odhiam- 1. The District Court assumed F.Supp.2d without decid- 930 26 ing I). that the rewards offer was a Kenya appears accept premise commercial bo activity. Republic Kenya, appeal. Odhiambo v.

37 (2007). Id. at 21. But that case had 1982). Second, make clear that our cases activity to be with the commercial plaintiffs nothing claim do requires clause one to. foreign aspect panel This must follow Kirk- upon” exception. “based establishes activity event, Kirkham is cor- state’s ham. And the United States. contact with substantial activi- rect. Clause one the commercial in Kirkham illustrates Our decision permit ty exception does by an There, a claim we considered rule. suit. purchased had passenger who

airline alleged an in the United States

ticket by an Air France caused injury negligently activity two of the commercial Clause not, in France. did as Odhi- employee foreign exception allows suit first whether her ask proposes ambo claim sovereign plaintiffs when the activity by on commercial claim was based “upon performed an act in the Unit- based independently wheth- France and then ask in connection with a commercial ed States that commercial had substantial er state elsewhere.” Instead, States. contact with the United 1605(a)(2). assuming Even 28 U.S.C. deci- reasoning Supreme from the Court’s alleged an act that fits that Nelson, explained we that the “sole sion definition, argu- Odhiambo’s clause two the plain- us” was whether question before grounds ment falters on the same as his upon her negligence claim was based tiffs argument: clause one His breach-of-con- purchase ticket the United States —that upon any alleged claim is not based tract is, upon claim was based whether her performed “act in the United States foreign state’s commercial aspect ac- connection with” con- activity that establishes substantial Nelson, tivity. 507 U.S. at Cf. Kirkham, 429 with the States. tact Kirkham, 292; 1471; 429 F.3d at S.Ct. Nelson, 291; 507 U.S. at 356- F.3d at see Goodman, 26 F.3d at 1145-46. precisely That is 113 S.Ct. 1471. sure, Nelson, Kirkham, and To be Good- to clause one that Justice White approach concurring opinion interpreted phrase upon” “based articulated man Nelson, 364-65, one, two. But the Nelson. See in clause not clause (White, J., concurring). and struc- virtually statutory identical text us to ture of clauses one and two lead interpretation of Nelson is Kirkham’s upon” means the conclude that “based argument. As ex- fatal to Odhiambo’s thing in both clauses. See Powerex same above, only aspect Kenya’s of plained Services, Inc., 551 Corp. Energy v. Reliant activity allegedly that estab- commercial 224, 232, 2411, L.Ed.2d 127 S.Ct. 168 U.S. contact with the United lished substantial Alvarez, (2007); IBP, 112 Inc. meetings Kenyan with officials States —his 514, 21, 34, L.Ed.2d 288 126 S.Ct. 163 necessary in the United States —is (2005). Indeed, dis- although Odhiambo out element of his breach-of- make of “based agrees interpretation with our much, Recognizing claim. contract one, argue in does not that upon” clause he essentially concedes that Kirk- something mean differ- those same words argument. ham forecloses his See Odhi- that degree two. And to the ent clause Br. 21-22. Odhiambo Reply ambo any ambiguity, legisla- the text leaves “implicitly that Kirkham was suggests that clause history “crystal is clear” tive by Permanent Mission In- overruled” York, “performed to acts two’s reference Nations v. New dia to the United a com- 2352, in connection with 193, States 127 S.Ct. 168 L.Ed.2d United U.S. Weltover, activity foreign state else- the Supreme mercial Court considered Argentina’s delay to those” acts “which in whether pay- where” is “limited decision are sufficient to form ments on certain a direct and of themselves bonds caused Zedan, the basis of a cause of action.” 849 effect States. The Court H.R. REP. (quoting explained F.2d at 1514 NO. 94- that “an effect is ‘direct’ if it (1976), consequence at 19 1976 U.S.C.C.A.N. follows as an immediate Rep. 94-1310, Weltover, 6604); activity. see S. NO. at 18 the defendant’s” (same). (internal (1976), quota- 1976 U.S.C.C.A.N. S.Ct. 2160 omitted). tion marks The Court reasoned sum, against foreign a suit sover- Argentina’s delay pay- that of the bond may only under clause two if eign proceed ments caused a direct effect in the United performed the “act the United States in States because the contract bond had es- activity with a commercial connection tablished the “place United States as a elsewhere” state establishes performance.” Id. 112 S.Ct. 2160. plaintiff fact without which the will lose. specifically, More provided the contract Nelson, 507 U.S. at payment in in- U.S. dollars and directed Kirkham, 1471; 429 F.3d at 292. None of vestors to elect one of four loca- the acts cited Odhiambo satisfies tions, Thus, including New York. at the test. formed, moment Argenti- the contract was obligations” na assumed “contractual (or pay the bondholders in New York one question The closest in this case arises locations). designated of the three other from clause three of the commercial activi- Id. The investors Weltover chose New ty exception. permits Clause three a suit payment, York as their and Ar- foreign sovereign plain- when the gentina payments made to their New York “upon claim tiffs is based an act outside accounts. Argentina See id. When territory of the con- obligations by breached its contractual fail- nection of the ing to make payments bond that were foreign state elsewhere act causes “supposed to have been delivered to a New a direct effect in the United States.” 28 bank,” York its breach had a direct effect 1605(a)(2). agree U.S.C. -with Odhi- in the United States. Id. part ambo that his suit satisfies the first upon clause three: His claim is based Weltover, Like this Court’s direct effect Kenya’s “act” of alleged breach of con- involving alleged cases breaches of con- tract, happened which outside the United tract have turned on whether the contract connection with the rewards of- question established the United States presumptively fer—a performance. as a That approach Kenyan government. of the question purpose follows from the text and remaining alleged whether definition, By FSIA. breaching a contract breach of the rewards offer caused a “di- establishes United States as a given rect effect States” place performance of a will have direct Odhiambo now resides in the United here, effect breaching whereas a contract States. unspecified establishes a different or leading Supreme The place Court case on the of can affect the United meaning of “direct effect” Republic only indirectly, as the result of of Weltover, Inc., Argentina v. some intervening plain- event such as the (1992). 119 L.Ed.2d 394 country. tiffs move to this See Princz v. foreign sovereign “might the well Germany, 26 F.3d where Federal (D.C.Cir.1994). partner through contract a Construing paid” have 1166, 1172 in the but in that latter bank account suits permit clause three to just so” outside “might for ev- as well have done create an incentive category would Goodman, 26 F.3d at in the United States. victim the world ery breach contract Zedan, States, Similarly, in the demand 1146-47. Court the to move to United effect when a held that there was no direct alleging and then sue payment required allegedly the breached contract nonpayment the United direct effect of mon- foreign sovereign the to “forward the would contradict the That result States. ey party to” the other “wherever he chose and undermine statutory term “direct” Zedan, F.2d at 1514. avoiding turning to travel.” objective of Congress’s courts into “small international U.S. courts Manage- In Cruise Connections Charter B.V. v. Central of claims.” Verlinden Attorney LP Cana- ment v. General of Nigeria, Bank da, (D.C.Cir.2010),this Court 600 F.3d 661 (internal (1983) 1962, 76 L.Ed.2d 81 a citi- again observed that “harm to U.S. omitted). marks quotation itself, zen, satisfy the in and of cannot Cruise Con- Roy- requirement.” in Peterson v. direct effect This decision Court’s Zedan, Arabia, nections, (citing at 665 416 F.3d 83 600 F.3d Kingdom al Saudi 1515). The Court that case (D.C.Cir.2005), per- place illustrates our on to find a direct effect based our result here. went formance rule and dictates of a contract that case, alleged breach In that an American who had worked Canada’s company “to subcontract required a U.S. Arabia but resided Saudi pro- lines” to contractually with two cruise that he was U.S.-based States claimed during Olympics. ships contribu- vide Vancouver employee entitled to a refund “the contract itself govern- Id. at 662. Because paid that he had to the Saudi tions ships to come from” U.S.- required al- held that Saudi Arabia’s ment. We lines, alleged breach based cruise Canada’s leged of the contract did create breach revenues” inexorably to the loss of in the States. Even “led a direct effect United in the company the U.S. Peterson was in the United States though breach, just Argentina’s breach of bond as at the time of the asserted of revenues for contract led to loss though the assumed that Saudi even Court designated New York as much, investors who had government “understood” Id. at payment Weltover. agreement implied “no contract included — paid Peterson was to be express —that Peterson, 416 F.3d in the United States.” perform- Applying that same contrary, the contract at 90-91. On the rule, Re- Csepel in de ance this Court government envisioned that the Saudi (D.C.Cir. Hungary, public of money employee’s would refund 2013), ade- plaintiffs had found came wherever he was when effect the Unit- quately alleged direct case, importance critical to our due. Of Hungary had by asserting that ed States Peterson held such it obligating contract a bailment breached arrangement does “pay you wherever are” to individuals to return artwork a direct effect in the not suffice to create key the Court’s United States. See id. United States. had, in Hungary form- reasoning was that contract, “promised to Goodman, Likewise, ing con- the bailment this Court in the United specific obligations perform effect cluded that there was no direct 40 90). 714 F.3d at 600-01. Csepel,

States.” de F.3d We see no indication that the Thus, (or did) from the moment of contract forma- Csepel depart de Court intended to tion, contractually the United States was from Peterson or our other “direct effect” designated place performance. precedents any way. in Hungary that emphasized Court twice summarize, To this Court’s cases draw a “knew” the owners of the borrowed art- very clear For purposes line: of clause residing work “to be the United States” three of the FSIA commercial ex- at the time Hungary bailment formed ception, breaching a contract that estab- 601; agreement. (Hungary Id. at see id. necessarily contemplates lishes or “knew at all relevant times that the Her- place performance United States as zog Herzog Heirs owned the Collection causes a direct effect in the United that certain of Herzog Heirs resid- breaching while a contract that does not States”) ed in the (quoting United Com- necessarily establish or contemplate the ¶ 36) added); plaint (emphasis Csepel De place United States as a (“United Br. 50 residents States owned does not cause a direct effect the United portions Herzog Collection” “at the ” States. time the bailments were created Hungarian that officials “knew to be the In presenting his case for a direct they

case when agree- created bailment effect, argue Odhiambo does not that his ”) added). ments (emphases And the U.S. or presence citizenship U.S. alone expressly Hungary’s contrasted suffices to create a direct effect promise to perform specific obligations in above, explained States. As the United States with the facts of a case precedents relevant would foreclose in which the Sixth Circuit declined to find See, e.g., such contention. Cruise a direct effect in Connec the United States because tions, Zedan, plaintiffs (citing had alleged that the for- 1515); Peterson, eign F.2d at promised state “ever to deliver the 416 F.3d at 90- Instead, art collection to the United States.” de Odhiambo tries to model his Csepel, (quoting 714 F.3d at 601 claim on Csepel suggesting de that the Westfield Republic Germany, Federal contract established necessarily con (6th Cir.2011)) (alteration 409, 415 omit- templated the United a place States as ted). performance. But nothing Kenya’s re suggested offer wards short, Hungary’s knowledge—from might be a of performance. the moment agreement 'the bailment was If designated any the contract place of formed—that performing its contractual performance, Kenya, would be obligations require would it to return the because the expressly provided contract artwork to owners the United States paid that rewards would in Kenyan be was crucial finding Court’s of a 16; Weltover, shillings. See J.A. “direct effect in the United States” and to cf. U.S. at explanation (noting why the case was not Argentine bond contract that covered created precedents such as Peterson. Indeed, direct effect in the Csepel provided the de Court cited Peterson dollars). Otherwise, immediately explaining before the rele- Hungary’s knowledge simply vance of at the contract established the kind of time it formed that contract “pay you arrangement that the owners of wherever are” residing the artwork were repeatedly particularly the United we have held— Peterson, States. (quoting See id. 416 cases like Peterson —insufficient to cause a

41 Put location to the FBI and demand- fugitive’s States. in the United direct effect Kenya’s gov- could look at ed the reward. When the Peruvian way, one another no conclude reasonably pay, to Guevara offer and ernment refused sued rewards specific perform Kenya “promised breach of contract South Florida’s fed- States” or was in the United conclud- obligations eral court. Eleventh Circuit in the recipients United “supposed pay alleged to” breach of the re- that Peru’s ed 600-01; at Csepel, 714 F.3d de ward offer did not cause direct effect 2160; Weltover, at 112 S.Ct. 1300-02, 504 U.S. at States. See id. United Goodman, Peterson, 90; 26 short, 416 F.3d pres- In Guevara’s mere 1309-10. Kenya’s alleged breach at 1146. States and demand for ence not create a therefore did obligations not suffice to create an payment here did States. On the effect in the United direct directly from breach of a arising effect found, the contrary, as the District contract offered Peru that never estab- af- only arose effect in the United States contemplated the United States lished events, includ- variety intervening ter a So too here.2 place performance. as a role as a unveiling of Odhiambo’s ing the alternatively contends that Odhiambo whistleblower, phone call to a Odhiambo’s modified contractual subsequently and the Kenyan newspaper performance by helping resettle outreach to story, Odhiambo’s published knowingly making pay- States and United Commission, and Rights Human reached him here. That con- ments that States as move to United multiple fronts. tention falters I, Odhiambo refugee. First, allege any pay- failed to view, could at 32. In our we F.Supp.2d in his first ments in the point this with- Odhiambo on not rule for prior time complaint amended substantially prec- from our —or departing out judgment to the District Court’s (a Princz, at 1172 —even 26 F.3d edents. See pay- he received those though apparently element, intervening no direct effect “has complaint. he filed his years ments before but, rather, line straight flows in a without not need Court therefore did The District (internal quota- interruption”) deviation or allegations. See Exxon to consider those omitted). tion marks Baker, n. Shipping Co. v. conclusion, we also note reaching In (2008). 171 L.Ed.2d 570 precedent on a factu- an Eleventh Circuit Second, if we were to consider v. Re- even question. See Guevara ally similar (11th they not dem- Peru, allegations, do Cir. Odhiambo’s public 2010) (Guevara II). II, Kenya manifested the con- onstrate that Peru Guevara modify the contract. necessary to in return for sent public reward offer issued offers no reason believe directly information enable the Odhiambo that would applica- asylum assistance fugi- Kenya’s capture high-profile of a locating and per- on the Miami, any impact had one of the tion During trip tive. Guevara, designated the rewards associates, up the formance gave fugitive’s offer. re- Kenya's allowed—much less rewards offer the Ninth Circuit's deci- 2. Odhiambo relies on par- demand quired finding in Adler v. Federal a direct effect sion —claimants (9th agreed we So even if Nigeria, Cir. ticular locations. F.3d 720 Adler, approach to the 1997). looser expressly the Ninth Circuit's But in contract prong analysis, we would designate an out-of- direct effect required the investors Adler, suit does conclude that Odhiambo’s country payment. See still location of Here, contrast, three under Adler. nothing fall within clause F.3d at 727. suggests that nonetheless that our Kenya knows Odhiambo Odhiambo Although States, analysis that alone does not apply in the United direct effect should differ not, in has the words of de Kenya ently Kenya arranged suffice. here for because obli- Csepel, “promised perform specific to asylum in the to seek United States. gations Csepel, States.” de 50; United Reply Br. See Odhiambo Odhiambo Indeed, far from 714 F.3d at 600-01. theory, refugees Br. 25-26. Under that the contract agreeing with Odhiambo in bring would be allowed to suits U.S. States as a designates the United sovereigns if courts their former continually re- performance, Kenya has sovereigns played those a role in the refu any payments outside Ken- fused to issue gees’ relocation to the United States. ya. has therefore received the Odhiambo proposed Whatever the wisdom of that only in the United States payments matter, refugee exception policy as a intermediary Kenya in through an who recognize FSIA does not it. So neither in payments and then obtained can we. must adhere the text of the a Again, sent them to Odhiambo. that is statute, especially in Re FSIA cases. See in cry Csepel, far from de which the con- Ltd., Argentina NML public Capital, v. any- tract never envisioned — U.S. -, 2250, 2255-56, 189 134 S.Ct. where other than the United States. See (2014). explained L.Ed.2d 234 As we id. above, way the FSIA is the sole for a

Third, allegation re- that he plaintiff suing foreign sovereign to in Kenyan from the payment gov- ceived courts, jurisdiction voke the of U.S. and Kenyan intermediary through ernment exceptions enumerated the FSIA he in Tanzania while was further under- Nelson, are exhaustive. 507 U.S. cuts his claim that the United States was Peterson, 1471; 113 S.Ct. 416 F.3d at contractually designated — perform- 86; U.S. -, v. Siegel, Law cf. short, ance. the evidence shows this: 1188, 1196, (2014) S.Ct. 188 L.Ed.2d 146 Kenya, Kenya was in When Odhiambo (enumeration exemptions “confirms that payment Kenya. made in When Odhiam- courts are not authorized to create addi Tanzania, Kenya payment bo was made words, exceptions”). any tional In other intermediary Kenya, to an and that claim to a exception FSIA “must stand on intermediary later money transferred the it Act’s text. Or must fall.” NML in Tanzania. Odhiambo When Odhiam- Capital, 134 S.Ct. at 2256. Odhiambo’s States, Kenya bo was in the United made proposed refugee exception cannot stand intermediary Kenya, to an on the text. it fall. FSIA’s So must intermediary later transferred sure, Congress To be and the President money to Odhiambo the United States. may legislation course enact new If Odhiambo were to move somewhere amend the exception FSIA and include an else, we see no that Kenya reason doubt of the kind that Odhiambo But proposes. would make further payments Ken- then, until the role of this Court “is to ya, money and that would be trans- apply the statute as it is written —even if intermediary ferred an we think some other approach might ac- his new locale. That record further but- good policy.” cord Burrage tresses the conclusion the contract — ——, operated precisely as the 134 S.Ct. “pay kind of (2014) (internal you arrangement quotation wherever are” 187 L.Ed.2d 715 we omitted); rejected jurisdiction NML as basis over marks and alterations see (“[t]he Capital, question states in Peterson and at 2258 Goodman. long “purely it is more than trivial.” ‘would have Congress ... is not what enacted Congress Id. but what wanted’ Weltover,

FSIA”) (quoting alleges, that Odhiambo The facts 2160). inferences drawn in his fa- the reasonable facts, support those the conclu- vor from exceptions asserted of the FSIA None there is a direct effect sion His suit to this case. applies by Odhiambo caused actions of affirm the proceed. cannot therefore activity. a commercial connection with of the District Court.3 judgment Kenya’s actions in of connection Various So ordered. the reward contract that forms with the claim constitute “di- of Odhiambo’s basis concurring in PILLARD, Judge, Circuit effects,” including: rect part: dissenting and part (cid:127) of Kenya offered rewards to members case majority that this agree I with the information about tax public the under activity involves commercial evasion, limiting without the offer to Act, Immunities and Sovereign Foreign residents, and Kenyan nationals or exception to that neither the waiver per- of specifying without clauses, of of the first two Act nor either contract; formance of such activity exception the FSIA’s I suit. to (cid:127) Peter Odhiambo’s applies permit promise The offer contained I explain why to believe separately write keep Kenyan government would case should have allowed that this been informants’ identities secret order the com- the third clause of proceed under reprisals, them from but protect activity exception. mercial keep Odhiambo’s whis- Kenya failed secret, thereby blowing exposing tle is on “an act claim based his life and him to threats territory of the United States outside the members, family re- those of his a commercial of in connection with Kenyan government sponse ... to which ... foreign state elsewhere resettling actively assisted effect in the United officials a direct eause[d] 1605(a)(2). refugee § An ef- in the United Odhiambo as States.” 28 U.S.C. States; in connection fect sovereign’s commercial

with a (cid:127) in the United Odhimabo Exiled under the third clause abroad is “direct” here the direct necessarily experiences exception commercial activities the FSIA’s failure to Kenya’s effect of continued consequence an immediate “if it follows as pay. activity.” Republic of the defendant’s sum, cannot present is 618, Weltover, Inc., 504 U.S. Arg. v. experiences (1992) Kenya, and safely return 2160, 119 L.Ed.2d 394 in the United non-payment here (internal ellipsis quotation marks and omit- “immediate consequence” ted). as the “direct,” need be States To be the effect “foreseeable,” Kenya’s actions. so nor neither “substantial” reasonably that the concluded District Court did not abuse its discre- 3. The District Court Odhiambo v. Re- was not new. See denying recon- evidence Odhiambo's motion for tion (D.D.C. Kenya, F.Supp.2d 30 public leave to file a second amended sideration and CIA, 2013) II); (Odhiambo Ciralsky v. also argu- see only plausible complaint. Odhiambo’s (D.C.Cir.2004). evidence, 671-73 but the was that he had new ment (D.C.Cir.1994) 1166, 1168 (claiming that we consider all 26 requires The FSIA imprisonment, battery, false assault and to whether the unlawful con- facts relevant negligent and intentional infliction of emo sovereign acting in duct of a meruit). distress, quantum tional But had a “direct effect” capacity 1605(a)(5)(B) (recognizing see 28 U.S.C. are bound to do in the United States. We immunity for noncommercial torts with re terms, Supreme so the statute’s “any claim spect arising out of malicious Weltover, Court’s decision in libel, process, prosecution, abuse slan our own court’s FSIA der, deceit, misrepresentation, or interfer see', Csepel Republic de v. precedents, e.g., rights”). ence with contract Even where (D.C.Cir.2013); 714 F.3d 591 Hung., contract, claim out does arise Mgmt. Cruise Connections Charter LP specification of the anticipated place of Can., Att’y Gen. F.3d 661 especially unlikely in a case (D.C.Cir.2010). one, involving such as this a unilateral majority’s determination that by foreign govern contract drafted the lack of a place-of-performance clause de- inability ment own protect whose to feats Odhiambo’s claim misconstrues the flee, plaintiff accounts for his having to cf. analysis. FSIA’s direct-effects The court’s Csepel, de 714 especially F.3d when opinion prior misreads cases to “turn[ ] government’s helped own officials to question on the contract in whether estab- direct the plaintiff to the United States. lished a place the United States as of that, It ground is common in cases in performance.” Op. at But our 38. deci- parties engage which in commercial activi explicitly sion in Cruise Connections held plaintiff ties abroad and a uni thereafter contrary, to the ... “[t]he FSIA re- laterally decides to relocate to the United quires only that effect [the] [in the United States where he then seeks to enforce ‘direct,’ be foreign States] relating foreign claims to the commercial sovereign agree that the would oc- effect activity, requirement the direct-effects is cur” in the United States. 600 F.3d at See, e.g., not satisfied. Royal Peterson v. added). (emphasis In conflict with Arabia, Kingdom Saudi 416 F.3d 83 of Connections, majority Cruise insists (D.C.Cir.2005); Kingdom Zedan v. Sau of that, plaintiff point unless the can to a Arabia, (D.C.Cir.1988). di 849 F.2d 1511 contract term explicitly implicitly desig- or where, But the result should be different nating the United States as the of example, foreign government a hires performance, any arising claim from for- an employee American or firm abroad eign commercial affects the U.S. specifying place performance, without of “only indirectly” and thus is barred and, once the work is complete, reneges on Op. FSIA. I disagree. payment deports and to employee foreign United States. Where a govern every Not claim that relates to a plaintiff ment causes a to country leave its sovereign’s activity, must be helps direct to the United clause, governed by place-of-performance a alleged as is the FSIA should not bar might expect such as one to find a suit it in United States courts. contract, may before the claim proceed under our FSIA direct-effect To the that the majority opinion extent Indeed, precedents. clause claims based simply fact-specific application of Welt- “in actions connection with” commercial over our precedents, I believe it is in activity need not even be contract claims. error for the reasons I But explain. See, Ger., e.g., further, Princz v. majority opinion appears go Fed. Kenya.) Bank of rule for FSIA direct- Central information legal create a new claims, submitted led to express an detection requiring clause effect unpaid hundreds of millions of dollars in clause place-of-performance implied recovery large part taxes and the of a Any such States. specifying Kenya began fulfill figure. its end our with Weltover and rule is conflict bargain by giving Odhiambo initial decisions, binding ef- so cannot have own appre- token sum to show its States v. Old Dominion fect. See United ciation, percentage payment (D.C.Cir. followed Club, F.3d Boat relating only a small fraction of the 2011) (“[W]hen exists within our a conflict fraud he identified. by the earli- we are bound precedent, own (citing Indep. Cmty. Bankers er decision.” keep Kenya failed Odhiambo’s identi- the Fed. Am. v. Bd. Governors secret, ty despite promise. He received (D.C.Cir. Sys., Reserve anonymous phone telling calls him to leave 1999))). Kenya. investigation As the bank intensi-

fied, police bogus officers with “a warrant” I. sought confronted Odhiambo at work and to search his home—an effort that Odhi- Odhiambo, at a professional auditor managed help to deflect with the ambo Kenya, accept- commercial bank private governor the Central Bank’s and that the of a government’s unilateral offer ed police pursue. did not then J.A. 7. Odhi- revealing tax fraud. reward for information threatening phone ambo received more prom- The “Information Reward Scheme” “suspicious people calls and were seen information leading bounty ised a 1% for lurking around his house.” Id. “hitherto to the identification of undis- taxes,” for lead- closed and 3% information performance under the re- Odhiambo’s ing recovery. pub- to their J.A. 16. regarding contract and leaks his ward public on the to share directly lished offer called identity as the whistleblower led information, promised and that “vol- against such him forced to death threats and confidentiality are assured of strict unteers into exile in the States. Odhiambo safeguard identities.” Id. The offer in- country, to he left Odhiambo Before e-mail addresses as well as other changed cluded twice and his moved his residence information, geograph- contact and did not Kenyan gov- It was the phone number. from ically place any flight limit on the sources ernment that facilitated Odhiambo’s might provide whistleblowers refugee, helped whence and that to select the needed information. his destination. Various United States as Kenyan governmental agencies and offi- Kenyan gov- to the responded Odhiambo help Odhiambo relocate sought cials infor- by providing offer reliable ernment’s abroad, including Kenyan National widespread scheme of mation about Rights Human and the on Commission being operat- tax that was criminal evasion Kenyan for Justice. The Kenyan Minister at through private commercial bank ed Rights facilitated Human Commissioner so he worked. The scheme was which meeting with the United that, government once the extensive embassy, helped arrange and appointed of it and a task force learned country as a refu- to leave Odhiambo under placed the bank was investigate, gee. ultimately statutory management time, actively facilitated Odhiambo be- Kenya that (By to close. forced working coming refugee at employ and was had left its it could not is ‘direct’ if it follows ‘as an immediate recognized it because ” Kenya consequence activity.’ in the face of the of the defendant’s protect his life 618, 112 triggered by per- (ellipsis 504 U.S. at S.Ct. 2160 threats omitted). requires under its reward contract. Now Weltover consideration formance inquiry. that it clear that Odhiambo cannot re- of all facts relevant sue, case, Kenya reneged has the Court’s conclusion that the turn to owes, raising rescheduling Argentina’s currency-stabi- it instead on millions jurisdictional lizing bar. bond had a direct effect the Unit- FSIA as supported by ed States was various facts: II. pref- the Swiss and Panamanian creditors’ York; payment Argenti- erence for in New The FSIA’s authorization suit based there; prior payments na’s interest foreign sovereign’s on a “commercial activ- dollars; and, designation debt’s theory” ities” codifies the “restrictive principally, money the fact that the credi- immunity ascendant in interna- sovereign paid tors insisted be to their New York at tional law the time of the FSIA’s enact- forthcoming.” bank “was Id. theory recognizes ment. That not turn S.Ct. 2160. Weltover did governments are not immune from suit any specification ex ante contractual commercial, they act in their when as dis- perform- United States as the sole sovereign, tinct from mode. Permanent contemplated ance. The contract that the Mission India to the United Nations v. money paid could be one of several York, City New centers, international financial at the elec- (2007); 168 L.Ed.2d 85 Welt- creditor, plaintiffs only tion of the over, 612-14, 112 504 U.S. at S.Ct. 2160. later chose New York as the The limitations the commercial activities 609-10, locale. Id. 112 S.Ct. 2160. In- exception including, as relevant — requiring place-of- stead of an ex ante requirement direct-effects the addi- —fulfill clause, the Court considered ensuring tional purpose sufficient con- a range of facts it deemed relevant to the nection to the United States to warrant between the commercial activi- connection resort to our courts. See 28 U.S.C. claim, ty, plaintiffs’ the and the United (estab- 1605(a)(2); 1330(b) § § see also id. States. A handful of relevant facts suf- lishing personal jurisdiction any over claim ficed to demonstrate that the effect of subject immunity not under sections Argentina’s rescheduling its bonds was foreign sovereign 1605-1607 in which the States, directly felt in the United so that process). has been served As the foreign sovereign immunity not bar did the demonstrate, consistently FSIA cases 618-19,112 suit. Id. at S.Ct. single qua there is no factual sine non of a United States direct effect. Where the precedents Weltover overruled the facts, together, taken show a this and other circuits had limited the government’s activity commercial a di- has qualify effects that could “direct” as under States, rect effect the United claims in the FSIA’s commercial activities exception court relating to that com- to those that were “substantial” and “fore- mercial are not barred the 618, 112 seeable.” Id. at S.Ct. 2160. To FSIA. majority the extent the adopts require- a Weltover, Supreme Court held ment of a place-of-performance clause des- that, prong ignating under the direct-effect analysis exception, by effectively commercial activities “an effect conflicts with Weltover “en- 1605(a)(2)’s ac- claim for on Mexican Certificates commercial grafting] on requirement of “fore- tivity exception” an Deposit despite express speci- clause rejected. seeability” that Weltover Mexico, fying payment in even under pre- Corp. Republic v. Islamic McKesson analysis requiring that a direct of Weltover (D.C.Cir.1996). Iran, 346, 350 In- 52 F.3d foreseeable). effect substantial be deed, desig- require ex ante contractual majority opinion’s narrowing Because the States as the nation the United to our approach prece- FSIA direct-effects re- performance imposes particularly dent, requires place-of-per- which a U.S. strictive form of the overruled “foresee- clause, formance conflicts with Weltover condition, ability” demanding only not an circuits, and the decisions of this and other effect, as this objectively “foreseeable” join I decline to it. had, precedent court’s overruled but con- memorializing parties foreseeability tract term that the It is not the bar- actually contemplated an effect gained-for character of an effect that mat- Maritime Int’l Nomi- United States. rejected requirement ters. Weltover Cf Guinea, nees Establishment v. and, foreseeability fortiori, any require- (D.C.Cir.1982) 693 F.2d 1111 & n. 28 place-of-performance ment of a clause. (noting, foreseeability under overruled re- Instead, animating rationale of the di- inquiry require “not quirement, did requirement rect-effect to assure that a is sense,” subjective only but intent foreign sovereign’s “reasonably contemplat- must have been abroad has a sufficient connection to the ed”). That United States to warrant suit here. Weltover, Following our sister circuits why Supreme the decisions of the rejected have the restrictive contention our have the need of an court stressed explicitly specify that a contract must consequence” “immediate in the United United States as a foreign sovereign’s to the relating for its breach to cause a effect. direct Weltover, See, activity. e.g., Republica DRFP L.L.C. v. Bolivariana de 2160. It is also (6th Cir.2010) Venez., 622 F.3d why jurisdiction we have denied in cases in (“We creating an do read Weltover as plaintiffs unilaterally, fortuitously, which requirement additional the United long period or after a of time and interven- specifically States be mentioned States, and, ing events move notes, suggested by terms of the Vene without other effect invoke the zuela.”); Negara Hanil Bank v. PT. Bank See, e.g., jurisdiction of our courts. (2d (Persero), Indon. Princz, 26 F.3d at 1172-73. The connec- (“Even Cir.1998) assuming that Indonesia unilaterally tion must not be one created place performance is the under letter of by the but must be a direct plaintiff, effect law, not insist credit Weltover does sovereign’s an act in connection with the- ‘place performance’ be in the United activity. requirement That States in order for a financial transaction uni- prevents plaintiffs from opportunistic in country. to cause a direct effect this sovereigns into laterally haling foreign Rather, only requires it an effect in the courts, but it also ensures United States that follows as an immedi disadvantaged private parties that are not consequence ate of the defendant’s actions dealings in state overseas.”); Bancomer, v. Callejo see also (5th Cir.1985) S.A., inappropriate entities’ as- entities such 1110-12 immunity designed apply in a an to (finding involving a direct effect case sertion of at States.” 600 F.3d 663-64 government’s in the sover- United only to actions omitted). (internal This quotation marks capacity.1 eign court declined to consider whether “the majority arbitrarily shrinks the required pay [the defendant] contract may claims that survive class of contract transfer to a U.S. bank” or wheth- via wire sovereign-immunity bar to those the FSIA a qualifie[d] er its “failure to do so as place-of- there is a United States in which direct effect.” Id. 666. We instead likely in clause—most cases performance a found direct effect because Canada’s negoti- foreign sovereign a offers which that breach meant “revenues would agreement a term to induce ates such generated have otherwise been their mon- keep from who want to parties ” forthcoming.’ ‘not Id. United States were say, in Needless to ey the United States. at 665. reward for in- unilateral offer of evasion, accepted formation about tax Holdings Goodman Rafidain Kenyan at the time had no national who Bank, (D.C.Cir.1994), 26 F.3d 1143 we also refugee from his becoming intention of discerning to all facts relevant to looked country, home was not such case. effect,” “direct potential restrict- ing our consideration whether the Unit- An ex ante contractual choice contractually designated ed was the place performance States as the per- or other contract would, course, typically support a find- overarching question formance. The re- effect, ing of direct but Weltover makes “ there an mained whether was ‘immediate necessary. a clause is not clear such consequence’ the United States” of the Indeed, even in those cases which the In that defendant’s breach. Id. contractually specified United States was case, past practice was to our relevant performance, this court has as the “might conclusion that the defendant well it inquiry not ended its once identified paid plaintiffs] have from funds in [the would, presumably such a clause—as it might just United States banks but it place-of-performance were a clause to be have done so from located well accounts lynchpin majority makes it. In- outside of the United as it had Weltover, stead, our following decisions apparently done before.” Id. at 1146-47. all tending have taken account of facts accordingly found no direct effect. a genuine show whether there is nexus to or, conversely, a plain- the United States are in Odhiambo’s circumstances certain gratuitous tiffs unilateral or choice of ways analogous Csepel, most to those of de U.S. forum. 714 F.3d 591. The bailment contract in Connections, case, example, In Cruise we like the unilateral contract it found a direct effect the absence of a arose circumstances which would expect explicit place-of- The be unrealistic to an place-of-performance clause. clause, “payments selecting contract that case directed let alone one choosing place. an account of Cruise Connections’ the United States as The con- an specifically Csepel rather than account tract de was not written. The activities, consequence” inquiry purchase plane 1. The "immediate does or the of a ticket for hinge any argu- stopover. not with a The focus of the on the non-existence travel in- is, instead, ably intervening always possible quiry event. It is on whether the actions of identify "intervening parties event” if one both create a sufficient nexus to the some parses finely enough, changed a non- be it economic United States for breach to cause political affecting consequence or conditions trivial here. finding a direct effect was in that Hungarian gov- that the because alleged complaint case, in to the commercial actions relation and Nazi collaborators confiscat- ernment collection, family’s genuine art and created a nexus between Herzog ed the re-posses- Hungary’s “possession the claim the United States. an ex- the collection “constituted sion” of majority points to as sup- The Peterson implied-in-faet bailment contract.” press or port requirement for its of a place-of-per- (internal omit- quotation marks Id. at 598 Peterson, however, In formance clause. ted). was formed as a “bail- The contract not here present factors tilted the scale emphati- collection’s following ment” against any finding of a direct effect: most during cally non-negotiated expropriation prominently, underlying transaction II. World War Arabia, entirely in occurred Saudi and the the confiscated Hungary kept and used played plaintiffs defendant no role in the fami- Herzog for decades until the artwork unilateral decision to relocate to the Unit- ly sought complaint its return. The did ed Peterson had States. worked Saudi arose, clearly allege when the bailment Arabia for over a decade before he moved plaintiffs noted that “never ex- and we to the United and sued for the allege[d] that the return of the pressly refund of retirement contributions to occur in the United artwork was gov- which he entitled once the was Saudi By at the time the States.” Id. foreigners ernment decided to exclude negotia- parties began their unsuccessful from its program. retirement benefit artwork, tion for the return of howev- effect, finding emphasized no direct we er, that some of Hungary was well aware that “the transaction took entire out- (with family lived the United States side the United States.” 416 F.3d at 91. living Italy), others and we held government paid The Saudi had Peterson caused a Hungary’s Arabia, his refund in Saudi and Peterson effect in the States because direct United previously deposited had those funds promised to return the artwork “Hungary simply bank. Id. Peterson later Saudi Herzog family of the it knew members States, chose to move to the residing to be in the United States.” Id. payment entirely here was desire deprivation continued of that artwork The making. his own Odhimabo’s move to the impinged rights Herzogs thus on the was not unilateral like Pe- in a manner analo- terson’s, by Kenya’s necessitated but was gous to the effect on Odhiambo of keep failure to secret Odhiambo’s whistle pay continued failure here. blowing. majority fit into Csepel The strives to de place-of-payment contract term rubric place-of-performance clause (in found no direct Peterson which we which, “from describing the case as one effect) materially was identical to that in formation, the moment of contract (in did). In Cruise Connections which we contractually desig- United States was a case, permitted contract each Op. at 40. performance.” nated would plaintiff to elect where be required per- No contract clause in fact (“Sau- Peterson, 416 at 91 714 made. See F.3d formance the United States. See em- (noting complaint ‘represented’ did not di Arabia non-Saudi that it refund retire- specify any agreement ployees [their that artwork was to would States). contributions ‘wherever the workers ment] be returned to the United Rath- Connections, ”); er, lived.’ difficulty the reason this court had little Cruise merely Kenya’s knowledge, but with finding district court’s (recounting to and these cir- “payment guidance help. for an its Under provided that contract choosing,” cumstances, an in the plaintiffs’] presence Odhiambo’s [the account of did not reach appeals court of issue the and the financial loss he United States that “it makes no it concluded because here are a direct effect of actions suffers would have where [defendant] difference the connection with commercial Connections”). And, in each paid Cruise contract. Those effects suffice the reward case, payment in plaintiff elected the provide a non-trivial nexus between the to cases, But in both we United States. and the United parties’ inquiry of wheth- beyond simple looked jurisdiction adequate support to designated the er a contract clause here under FSIA. payment. See also States as the opportunistic is no forum Odhiambo Weltover, 609-10, unilaterally opt not shopper. He did (contract “at provided experience come to the United States any of the creditor” in election Kenya’s non-payment the effects of of the contractually permitted several destina- money Kenya it owes him. As acknowl- tions, only chose New York creditor edges, plaintiffs Odhiambo—unlike unilaterally Argentina after rescheduled any majority of the cases on which the debt). together, Taken the cases show relies—is unable return to sue clause, place-of-performance that a which immu- foreign country that now asserts its conclusive, majority correctly for the is is nity. may The United States not have considered to be neither the sole nor the been the chosen determining factor. offer, Kenya’s accepted the time Odhiambo analysis prece- Under the holistic expressly any eschews fore- but Weltover the direct-effects test require, dents seeability of a requirement. absence here, Weltover, readily met as it was in place-of-performance clause Connections, Csepel. and de At his Cruise Kenya’s negate reward scheme cannot invitation, government’s own Kenya’s nonpayment the fact that is felt risked his life to recover a help as the direct effect large money. Kenya’s amount of stolen Kenya’s States of activities no on placed invitation restrictions where I would thus hold that with Odhiambo.

whistleblower such as Odhiambo could Kenya is not entitled under FSIA from, he come nor where could demand sovereign immunity from Odhiambo’s suit. And, payment. given the serious risks he have U.S. courts enforced rewards- coming faced forward as whistleblow- against foreign sovereigns based contracts er, Kenya confidentiality. promised far as 1798. See v. The as back Ellison Odhiambo is the United States and ex- (D.S.C.1798). Bellona, 8 F.Cas. Kenya’s periencing nonpay- the effect of because, That is as the Eleventh Circuit consequence here the direct ment “[a]nything that makes it aptly explained, accepting Kenya’s offer of reward for in- for countries to welch on their easier formation, failure to fulfill its promises pay for information decreases part bargain keeping they value of reward offer and real identity paying secret and him what it likely that an offer will be makes it less owes. Odhiambo moved to the United locale, ... accepted” “jeopardize^] other and so [the] instead of some country ... every interests vital MENOMINEE INDIAN TRIBE OF information, including rewards for

offers WISCONSIN, Appellant country.” Republic v. this Guevara (11th Peru, 468 F.3d 1303-04 Cir. 2006).2 jurisdiction Failing recognize America, UNITED STATES here rewards decision to default al., Appellees. et for promise pay on its information he provided great valuable No. 12-5217. thereby'

risk to himself. It threatens Appeals, States Court of countries, including interests of all our District of Columbia Circuit. own, encourage of informa- disclosure may tion that be critical to en- effective Argued March 2014. rang- forcement of the law threats Sept. Decided 2014. ing from tax evasion to terrorism.3 I finding believe a direct effect on these so, respectfully,

facts is warranted and dis-

sent. eventually up Ayman $25 2. The court found no direct ef- fers a reward of million for (the al-Qaeda), fect" in the United States of the reward con- al-Zawahiri current head of Guevara, so, tract in but did Justice, not for lack of among others. See Rewards for Most designation contractual of the United States Wanted, http://www.rewardsfoijustice.net/ performance, as the but Gue- because (last english/most-wanted/all-regions.html vis- " vara was in the United 'an imme- 12, 2014). Aug. ited The United States addi- consequence’ activity, diate criminal tionally pursuant offers rewards to the False Peru's offer of a reward for Montesi- Act, Service, Claims and the Internal Revenue Peru, capture.” nos’s Guevara v. Commission, Exchange Securities and (11th Cir.2010). Commodity Trading Futures Commission also programs. According administer rewards important are Reward contracts an source report, biggest paid a 2012 news reward governments of valuable information for point $104 at that was million the IRS for world, strong around the and there are rea- who, Odhiambo, employee pro- to a bank like they sons to believe that should be enforce- able, vided information on tax evasion. See David by people and be understood as such Kocieniewski, $104 Whistle-Blower Awarded might respond who to them. The U.S. De- I.R.S., Times, State, Sept. Million N.Y. partment example, for runs a "Re- program currently wards Justice” at Al. of-

Case Details

Case Name: Peter Odhiambo v. Republic of Kenya

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Aug 29, 2014

Citation: 764 F.3d 31

Docket Number: 13-7100

Court Abbreviation: D.C. Cir.