Judge Ketanji Brown Jackson’s Second Circuit Court Opinion

Yesterday I noticed Judge Ketanji Brown Jackson’s first opinion in his capacity as a U.S. Court of Appeals judge for the D.C. Circuit. Ross Guberman ran the opinion through BriefCatchYou can also see the draft to determine how it was written.

Today, D.C. Circuit issued a second opinion from Judge Jackson on a case that had been argued: Wye Oak Technology in opposition to the Republic of Iraq. Judge Jackson, like her first opinion wrote for a unanimous board. This opinion is not as extensive in administrative law as Judge Jackson’s original. I don’t have much to add to it. The opinion is summarized by Judge Jackson.

The appeal stems from an unresolved contract dispute between an American defense contractor, and a foreign government. This resulted in a multi-million dollar plaintiff’s judgement. Wye Oak Technology, Inc. filed the first complaint against the Republic of Iraq at the U.S. District Court for the Eastern District of Virginia (“EDVA”) This court found the suit unsuitable and transferred it to the U.S. District Court for the District of Columbia (DDC). However, the DDC denied Iraq’s motion for dismissal on sovereign immunity grounds. After an eight-day bench trial and nearly 10 years, Wye Oak was finally granted a judgment by the DDC. Partly, this decision relied on an interim ruling from the Fourth Circuit which dismissed Iraq’s claim that the Foreign Sovereign Immunities Act (FSIA) did not provide sovereign immunity. § 1602 et seq., applied to Wye Oak’s breach of contract claims.

The Fourth Circuit ruled that Wye Oak had alleged it was involved in acts within the United States under an agreement between the parties, and that the suit could be brought under the commercial activities exception of the FSIA second clause. See U.S.C. § 1605(a)(2) (abrogating foreign sovereign immunity with respect to claims that are “based upon . . . An act that is performed in the United States for commercial activities of a foreign state. We are asked to now decide whether or not we accept the FSIA interpretation of our sister circuit (as it applies in the context the Wye Oak post-trial judgement in Wye Oak’s favour that was entered by the DDC against Iraq). This is also where we will need to decide if the law in the case doctrine affects how we assess Iraq’s claimed immunity.

The opinion below rejects Wye Oak’s claim that Iraq’s participation to the DDC bench trial impliedly waived sovereign immunity in order to apply the FSIA’s waiver exemption. The law of case doctrine doesn’t require us to follow the Fourth Circuit in its conclusions regarding the FSIA commercial activities exception’s applicability. We explain then that unlike the Fourth Circuit we find that 28 U.S.C. § 1605(a)(2) does not apply to the established facts of this case. We do see a basis to support the jurisdictional ruling of the district court in the language of third clause commercial activity exception. See U.S.C. § 1605(a)(2) (abrogating immunity if the action is “based upon . . . “An act that is performed outside of the United States and which has a connection to a foreign commercial activity. This act will have a direct impact on the United States.” The district court has the most authority to review (or to develop) records to establish, first of all, whether facts support or deny the FSIA.

The post-trial judgement of the district court is therefore vacated insofar as it was based on a finding that subject matter jurisdiction rests upon an incorrect interpretation of the second paragraph of the exception to commercial activities. This matter is remanded back to the court to determine whether Iraq’s breach caused “direct consequences” for the United States under the third clause, 28 U.S.C. § 1605(a)(2).

If you think that the first two opinions do not cover the most interesting subject matter, then it’s worth recalling that Judge Jackson continues to be the least senior judge on D.C. Circuit. This means she doesn’t get to pick the cases where she writes the opinions for the court. These opinions do not necessarily reflect what she will get to do at the Supreme Court.