Wye Oak Technology, Inc. v. Republic of Iraq

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:09-cv-00793-AJT-JFA Paper copies to all parties and the district court/agency. [998754137]. [10-1874]

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PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WYE OAK TECHNOLOGY,
INCORPORATED,
Plaintiff-Appellee,
v.
REPUBLIC OF IRAQ,
Defendant-Appellant.




No. 10-1874



Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Anthony J. Trenga, District Judge.
(1:09-cv-00793-AJT-JFA)
Argued: October 25, 2011
Decided: December 29, 2011
Before SHEDD and DUNCAN, Circuit Judges, and
William L. OSTEEN, Jr., United States District Judge
for the Middle District of North Carolina,
sitting by designation.

Affirmed by published opinion. Judge Duncan wrote the
majority opinion, in which Judge Osteen joined. Judge Shedd
wrote a dissenting opinion.
COUNSEL
ARGUED: Craig Crandall Reilly, Alexandria, Virginia, for
Appellant. Robert James Pavich, PAVICH LAW GROUP,

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Chicago, Illinois, for Appellee. ON BRIEF: Timothy B.
Mills, MAGGS & MCDERMOTT, LLC, Washington, D.C.,
for Appellant. John H. Quinn, Jr., Matthew M. Connell,
QUINN, RACUSIN & GAZZOLA CHARTERED, Washington, D.C.; John J. Pavich, PAVICH LAW GROUP, Chicago,
Illinois; Anthony D’Amato, NORTHWESTERN UNIVERSITY SCHOOL OF LAW, Chicago, Illinois, for Appellee.

OPINION
DUNCAN, Circuit Judge:
Under the Foreign Sovereign Immunities Act, 28 U.S.C.
§§ 1602-11 ("FSIA"), a federal court has subject matter jurisdiction over a claim against a foreign state only if that claim
falls within one of the FSIA’s exceptions to immunity. This
appeal raises the question of whether, for purposes of analyzing subject matter jurisdiction under the FSIA, a foreign state
and its armed forces are separate legal persons. For the reasons that follow, we conclude that, for jurisdictional purposes,
they are not. We therefore hold that appellee Wye Oak Technology, Inc.’s ("Wye Oak") claim against the Republic of Iraq
("Iraq") alleging breach of a contract entered into by Iraq’s
Ministry of Defense ("IMOD") falls within the FSIA’s commercial activities exception. We accordingly affirm the district court’s denial of Iraq’s motion to dismiss Wye Oak’s
claim for lack of subject matter jurisdiction.1
1

This case actually presents two questions of jurisdiction. The first
involves Iraq’s immunity from suit in federal court. The second arises
because the district court transferred the case to the U.S. District Court for
the District of Columbia after issuing its opinion on subject matter jurisdiction. We therefore requested supplemental briefing on the issue of our
jurisdiction to hear this interlocutory appeal. Both sides asserted that we
have appellate jurisdiction, and we agree. We will address the second
issue more fully before addressing the first.

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I.
A.
This case arises out of a contract entered into by IMOD and
Wye Oak for the refurbishment and disposal of Iraqi military
equipment. The contract, executed on August 16, 2004,
appointed Wye Oak as IMOD’s broker for, inter alia, "the
accounting, inventory, and assessment of discarded and/or
damaged Military Equipment," for the purposes of "indentify[ing] which Military Equipment is salvageable and suitable
for Military Refurbishment Services and which Military
Equipment is scrap" and "arranging . . . Scrap Sales." J.A. 22.
The contract went on to call for Wye Oak, as broker, to "use
all reasonable commercial efforts . . . in the development of
markets and sales prospects for Military equipment." J.A. 23.
IMOD agreed under the contract to provide offices in Iraq for
Wye Oak to facilitate the broker activities, but Wye Oak was
"responsible for its own administrative costs." J.A. 25. As to
compensation, the contract called for IMOD to pay Wye Oak
a commission equal to 10 percent of any sale of equipment
and a commission equal to 10 percent of any refurbishment
costs. The contract required IMOD to make "full payment" of
these commissions "immediately upon presentation" to it of
invoices by Wye Oak. J.A. 24. The contract was signed by Dr.
Bruska Noori Shaways, Secretary General of IMOD, and Dale
C. Stoffel, President of Wye Oak.
On the same day the contract was executed, Shaways
signed a letter addressed to Stoffel, which referenced the contract as follows:
Wye Oak . . . is commissioned as the sole and exclusive agent for the recovery and sale of all Iraqi Ministry of Defense material described as scrap military
equipment in the territory of Iraq. Related thereto,
Wye Oak is also commissioned to inventory, assess
and recover any such equipment it determines as

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recoverable for the use or sale on behalf of the Ministry of Defense of the Republic of Iraq.
J.A. 29.
Less than five months later, Stoffel attended a meeting in
Baghdad to discuss contract performance. Three days after the
meeting, while still in Iraq, he was shot and killed by unidentified assailants.
B.
On July 20, 2009, Wye Oak filed suit against Iraq, but not
IMOD, in the U.S. District Court for the Eastern District of
Virginia, seeking damages for breach of contract. Wye Oak
alleged in its complaint that it "performed under the Contract
by, among other things . . . identifying and arranging for the
sale of scrap military equipment." J.A. 13. Wye Oak also
alleged that, pursuant to the contract, it performed activities
in the United States, including "[a]ccounting," creating
"[c]omputer programs for tracking military equipment,"
"[c]ontacting agents of foreign governments who might have
been interested in buying scrap," and "[c]reating spread-sheet
systems to ensure that pricing of scrap equipment . . . could
be compared and correlated with . . . world market prices."
J.A. 14. Wye Oak further alleged that it submitted invoices to
IMOD in October 2004 totaling more than $24 million but
that no payment was received. Wye Oak alleged that during
the December 5, 2004, meeting, "[i]t was agreed that payment
[on the invoices], which had been authorized by [Iraq] in
October 2004, would be made to Wye Oak directly and
immediately." J.A. 16. Finally, Wye Oak alleged that despite
this agreement, no payment was made and that "[b]y not paying these invoices . . . [Iraq] breached" the contract. J.A. 17.
On March 29, 2010, Iraq moved to dismiss Wye Oak’s
complaint pursuant to Federal Rules of Civil Procedure
12(b)(2) and (5) for lack of personal jurisdiction, 12(b)(1) for

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lack of subject matter jurisdiction, and 12(b)(3) for improper
venue.
As to subject matter jurisdiction, Iraq argued that it was
immune from suit pursuant to the FSIA and fell within none
of its exceptions. Wye Oak responded that Iraq was subject to
jurisdiction under the FSIA’s commercial activities exception.
The FSIA provides that "a foreign state shall be immune
from the jurisdiction of the courts of the United States and of
the States except as provided in sections 1605 to 1607 of this
chapter." 28 U.S.C. § 1604. Thus, a foreign state is immune
from suit in U.S. courts unless an exception applies. Section
1605, in turn, provides the exception to immunity that is at the
heart of this appeal, the commercial activities exception,
which we will discuss more fully in our analysis below.
After the parties completed initial briefing, Iraq sought and
was granted leave to present the new argument that because
the contract giving rise to the claim was between Wye Oak
and IMOD, and not between Wye Oak and Iraq, Wye Oak
failed to plead particular facts sufficient to make out a prima
facie case that the commercial activities exception applied to
Wye Oak’s claim. Iraq presented as evidence a declaration by
Omar Ghassan Jamil Al-Wiswasi, Acting Director General of
the Legal Department of the Ministry of Justice of Iraq, in
which it is asserted, inter alia, that IMOD "was and continues
to be a separate and independent legal person from . . . the
Republic of Iraq . . . with separate legal identity, including . . .
for purposes of entering into and fulfilling contracts and for
liability under any contracts entered into by [IMOD]." J.A.
44-45. The district court took this assertion as true for the purposes of deciding the motion to dismiss.
On June 22, 2010, the district court held a hearing and on
June 29, 2010, the district court denied Iraq’s motion to dismiss. The district court concluded that the allegations and
facts presented were sufficient to bring Wye Oak’s claim

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against Iraq within the commercial activities exception. The
district court held that the commercial activities exception
would be applied to the claim against Iraq in this case—even
though the contract was with IMOD and Iraqi law makes
IMOD a separate legal person from Iraq—because under the
FSIA, Iraq and IMOD "are treated as one and the same." J.A.
150. The district court further noted that the separate question
of whether Iraq could ultimately be held liable for the acts of
IMOD, given the state of Iraqi law, "is inextricably bound up
with the ultimate merits of the case, as framed by the complaint, and cannot be resolved within the present posture of
the case." J.A. 151.
In its order denying Iraq’s motion to dismiss, the district
court also concluded that venue was improper. Rather than
dismiss the complaint, however, the district court chose to
cure the venue defect by immediately transferring the case to
the U.S. District Court for the District of Columbia.2 This
appeal followed. The transferee district court has stayed the
case pending the outcome of this appeal.
II.
We begin with an examination of our jurisdiction to hear
this appeal. Both parties argued in supplemental briefing that
we have such jurisdiction under our decision in Technosteel,
LLC v. Beers Constr. Co., 271 F.3d 151 (4th Cir. 2001). We
agree.
Preliminarily, however, we feel compelled to note that our
consideration of the issue before us has not been aided by the
procedural posture in which it is presented. The district court
could have done one of two things that would have greatly
2

The district court also rejected Iraq’s challenge to the district court’s
personal jurisdiction. Iraq does not appeal the denial of its motion to dismiss for lack of personal jurisdiction, and Wye Oak does not appeal the
district court’s finding of improper venue.

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aided our review. First, it could have transferred the case to
the district court in the District of Columbia prior to reaching
the issue of jurisdiction, so that the D.C. district court could
have considered the issue, with review by the D.C. Circuit in
the normal course. Alternatively, the district court could have
stayed its transfer order pending our consideration of the
interlocutory appeal. As we and other courts have stated,
when an immediately appealable order is issued prior to transfer, "the better practice would be for the district court to stay
any transfer for the thirty-day appeal period and, if an appeal
is filed, during the time the appeal . . . is pending in our
court." Technosteel, 271 at 161 n.8. That it did neither
requires us to address the nature of our review in somewhat
anomalous circumstances.
When a case has been transferred, generally "the transferor
court—and the appellate court that has jurisdiction over it–loses all jurisdiction over the case and may not proceed further with regard to it." 15 Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure
§ 3846 (4th ed. 2007). This court and other circuits to have
considered the issue, however, have recognized an exception
to this rule when, prior to transfer, the district court has
entered an immediately appealable order.
In Technosteel, we held, "under any view of the jurisdictional limitations imposed by [28 U.S.C.] § 1294(1) and its
interplay with a [28 U.S.C.] § 1404(a) transfer, precedent simply does not dictate the holding that we lose jurisdiction to
review immediately appealable, and timely appealed, decisions of our district court . . . simply because the district court
simultaneously chose to transfer the balance of the case for
litigation elsewhere." 271 F.3d at 157. We went on to reason
that because the district court’s decision in that case was
immediately appealable "without need for any action by the
parties or the court," the decision was "effectively severed
from the balance of the case" and so did not travel with the

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rest of the case to the transferee district but instead remained
appealable in the transferor circuit. Id. at 159, 160.
Although Technosteel involved an appeal of an order denying a petition to compel arbitration, we and the other circuits
to have considered the issue believe its reasoning applies
more broadly.3 The district court’s decision denying Iraq the
protections of foreign sovereign immunity, like a denial of a
petition to compel arbitration, is immediately appealable without need for any action by the parties or the court.4 The district court’s decision was thus severed from the remainder of
the case that traveled to the transferee court and remains
appealable in this circuit pursuant to § 1294(1).5 Accordingly,
we hold that this court has jurisdiction to hear Iraq’s appeal.6
3

See, e.g., Matrix Grp. Ltd., Inc. v. Rawlings Sporting Goods Co., 378
F.3d 29, 32 (1st Cir. 2004) (appeal of order denying injunction); Jones v.
InfoCure Corp., 310 F.3d 529, 533-34 (7th Cir. 2002) (same).
4
"Orders denying sovereign immunity are immediately appealable collateral orders." Eckert Int’l, Inc. v. Gov’t of the Sovereign Democratic
Republic of Fiji, 32 F.3d 77, 79 (4th Cir. 1994).
5
Although the case is no longer within our circuit, presumably our decision will become law of the case in the transferee district and circuit. See
18B Wright, Miller, & Cooper, supra, at § 4478.4 ("Special situations . . .
may bring the same case successively to different courts of appeals. . . .
In all of these circumstances, an appellate court tends to defer to the earlier
appellate decision in much the same way as it would defer to its own earlier decision."); see also Hill v. Henderson, 195 F.3d 671, 678 (D.C. Cir.
1999) (recognizing that "a decision of a court of coordinate status is entitled to be considered ‘law of the case’").
6
As in Technosteel, we are further persuaded that appellate jurisdiction
is appropriate here due to the anomalous results that would ensue were we
to hold otherwise. See 271 F.3d at 160-61. Because the district court that
issued the decision lies in our circuit, § 1294(1) would prevent the transferee circuit from hearing this appeal. See id. at 156 ("TechnoSteel’s petition to compel arbitration was immediately appealable . . . and . . . it was
immediately appealable only to us, see 28 U.S.C § 1294(1)." (emphasis
added)); Hill, 195 F.3d at 675 (suggesting that, in these circumstances,
pursuant to § 1294(1), immediately appealable orders must be reviewed by
the transferor circuit). Consequently, we could not transfer the appeal to

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With respect to the views of our dissenting colleague on
this issue, we make three points. First, both the majority as
well as the parties believe that posture of this case brings us
within the operating rules established by our precedent. Second, both the majority as well as the parties also believe that
the law of the case has much greater force than contemplated
by our dissenting colleague. Finally, we question whether the
alternative proposed by the dissent, see post at 25-26
n.5—that we decline to exercise appellate jurisdiction for prudential reasons due to the unsettled nature of the law in this
area and the complicated procedural posture of the case—is
either appropriate or workable. This order is only appealable
the D.C. Circuit because, pursuant to 28 U.S.C. § 1631, an appeal may
only be transferred to a circuit court in which the appeal could originally
have been filed. This appeal would thus have to be dismissed, leaving the
decision of the transferor district court intact and operating as law of the
case. In turn, the law of the case doctrine would constrain the transferee
district court to adhere to the transferor district court’s decision unless the
transferee district court finds that the transferor district court’s rulings
were "clearly erroneous and would work a manifest injustice." Arizona v.
California, 460 U.S. 605, 618 n.8 (1983).
It is also far from clear that the D.C. Circuit, on appeal, could directly
review the underlying decision from the transferor district court, rather
than merely reviewing the application of the law of the case doctrine by
its district court. Cf. Chrysler Credit Corp. v. Country Chrysler, Inc., 928
F.2d 1509, 1518 (10th Cir. 1991) (noting that although "a court of appeals
in the transferee circuit lacks jurisdiction to review the judgments of [a]
district court in the transferor circuit . . . nothing . . . precludes the parties
from arguing or the transferee circuit from reviewing whether the transferee district court correctly applied the law of the case in the transferred
action"). This chain of events could result in the district court’s decision
escaping de novo review entirely. Such an outcome is particularly inappropriate in these circumstances, given the importance of foreign sovereign immunity and considerations of respect and comity that follow it. Cf.
Phoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 39 (D.C. Cir.
2000) ("[T]o defer the question [of foreign sovereign immunity] is to
‘frustrate the significance and benefit of entitlement to immunity from
suit.’" (quoting Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905
F.2d 438, 449 (D.C. Cir. 1990)).

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to us, see ante at 8-9 n.6, and we have limited discretion as
to which appeals we may hear and decide. See, e.g., Colo.
River Water Conservation Dist. v. United States, 424 U.S.
800, 817 (1976) (stating that federal courts have a "virtually
unflagging obligation . . . to exercise the jurisdiction given
them"); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404
(1821) (Marshall, C.J.) ("We have no more right to decline
the exercise of jurisdiction which is given, than to usurp that
which is not given."). We are unaware of any authority that
allows us to generally decline to hear an appeal solely because
the law or facts involved are complicated or unsettled.7
In view of the concerns expressed in the dissent, however,
we once again stress the preferability of the district court’s
either transferring a case prior to ruling on a motion to dismiss, or staying the transfer pending appeal.
7

We also respectfully disagree with the dissent’s argument that comity
calls for us to decline to exercise appellate jurisdiction and dismiss the
appeal. Comity—like other considerations underlying the discretionary
declination of jurisdiction—operates in a very limited set of circumstances, and we are reluctant to expand its operation. See Fair Assessment
in Real Estate Ass’n, Inc. v. McNary, 454 U.S. 100, 119-20 (1981) (Brennan, J., concurring) ("While the ‘principle of comity’ may be a source of
judicial policy, it is emphatically no source of judicial power to renounce
jurisdiction. The application of the comity principle has thus been limited
to a relatively narrow class of cases."); accord Quackenbush v. Allstate,
517 U.S. 706, 716 (1996) ("[F]ederal courts may decline to exercise their
jurisdiction, in . . . exceptional circumstances." (internal quotations omitted)). Cf. Quackenbush, 517 U.S. at 716-720 (noting that abstention is
only appropriate in "cases in which the court has discretion to grant or
deny relief," and instructing that in actions for damages, "abstention principles . . . only . . . permit a federal court to enter a stay order that postpones adjudication of the dispute").
In any case, we are not persuaded that declining to exercise appellate
jurisdiction here would serve the interests of comity. First, we note that in
deciding this appeal, we are following a rule previously set forth by the
transferee circuit itself. See Hill, 195 F.3d at 675. Second, we believe our
decision here will aid our sister circuit in the orderly consideration of
issues in this case.

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III.
Agreeing with the parties as to our jurisdiction to hear this
appeal, we now turn to a consideration of the merits. On
appeal, Iraq challenges the district court denial of its motion
to dismiss for lack of subject matter jurisdiction pursuant to
the FSIA.
Iraq makes two arguments in support of its position. First,
Iraq argues that the district court erred by not treating Iraq and
IMOD as separate legal persons for the purposes of applying
the FSIA’s commercial activities exception. Second, Iraq
argues that even if it and IMOD are not separate legal persons
for this purpose, Wye Oak’s allegations are insufficient to
bring its claim against Iraq within the commercial activities
exception.
We review de novo a district court’s decision concerning
the existence of subject matter jurisdiction under the FSIA.
Rux v. Republic of Sudan, 461 F.3d 461, 467 (4th Cir. 2006).
"Once the defendant has asserted the jurisdictional defense of
immunity under the FSIA, [our] focus shifts to the exceptions
to immunity." Phoenix Consulting, 216 F.3d at 40; see also
Rux, 461 F.3d at 468. Wye Oak’s complaint "must include
sufficient facts to support a reasonable inference that [its]
claims satisfy" the FSIA’s commercial activities exception.
Rux, 461 F.3d at 468. Because Iraq challenges only the legal
sufficiency of Wye Oak’s jurisdictional allegations,8 and
8

"In some cases . . . the motion to dismiss will present a dispute over
the factual basis of the court’s subject matter jurisdiction under the FSIA,
that is, either contest a jurisdictional fact alleged by the plaintiff, or raise
a mixed question of law and fact. When the defendant has thus challenged
the factual basis of the court’s jurisdiction, the court may not deny the
motion to dismiss merely by assuming the truth of the facts alleged by the
plaintiff and disputed by the defendant. Instead, the court must go beyond
the pleadings and resolve any disputed issues of fact the resolution of
which is necessary to a ruling upon the motion to dismiss." Phoenix Consulting, 216 F.3d at 40 (internal citations omitted). Iraq has made no specific challenges to the factual allegations we rely on for our analysis.

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because Iraq’s assertion that Iraqi law treats Iraq and IMOD
as separate legal persons is undisputed, we take Wye Oak’s
allegations and Iraq’s assertion as true and determine whether
the commercial activities exception applies. See Phoenix
Consulting, 216 F.3d at 40; Robinson v. The Government of
Malaysia, 269 F.3d 133, 138 (2d Cir. 2001).
A.
We first consider the most significant question for the purposes of determining whether Iraq is immune under the FSIA
here: whether we are to treat Iraq and IMOD as separate legal
persons in applying the FSIA’s commercial activities exception to Wye Oak’s claim.9 The district court held that, under
Iraq made a general challenge to all of Wye Oak’s allegations, labeling
them "dubious and exaggerated." Appellant’s Br. 51. Such general challenges, however, do not constitute a "dispute over the factual basis." Iraq
makes no specific challenge to any factual allegation we rely on in reaching our conclusion. Should later events support a specific factual challenge
on the part Iraq, it can, of course, renew its motion to dismiss or file a
motion for summary judgment, as appropriate.
9
At the outset, we note that Iraq’s concern that our decision will affect
its ultimate liability is misplaced. Determinations under FSIA go only to
jurisdiction, and Iraq will be free to challenge its liability later in the case.
See First Nat. City Bank v. Banco Para El Comercio Exterior de Cuba,
462 U.S. 611, 620 (1984) (hereinafter "Bancec") (stating that FSIA "was
not intended to affect the substantive law determining the liability of a foreign state"). In other words, what we are concerned with here is not Wye
Oak’s argument that Iraq is liable on the contract but rather whether Wye
Oak is entitled to the opportunity to make such an argument at all.
Likewise, we disagree with Iraq that the district court erred in delaying
consideration of whether Iraq was ultimately liable for the acts of IMOD.
Iraq portrays the district court’s action as improperly putting off a necessary jurisdictional inquiry. As we read its opinion, however, the district
court was delaying a merits inquiry, not a jurisdictional inquiry. Accordingly, we find no error in the district court’s refusal to resolve a merits
issue when ruling on a motion made under Rule 12(b)(1), rather than
under Rule 12(b)(6).

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the FSIA, Iraq and IMOD were not separate legal persons and
that, therefore, Wye Oak’s allegations as to IMOD could be
used to bring its claim against Iraq within the commercial
activities exception. Iraq asserts that this question—even
though it involves application of the FSIA’s commercial
activities exception—is not to be answered by reference to the
FSIA, but instead by reference to Iraqi law, which Iraq argues
mandates that it and IMOD be treated as separate legal persons.10
We disagree. We first conclude that the FSIA is the appropriate lens through which to analyze this question. Applying the
FSIA’s text, we then conclude that Iraq and IMOD are not
legally separate persons for the purposes of applying the
FSIA’s commercial activities exception. Finally, we proceed
to apply the FSIA’s commercial activities exception.
1.
In determining which law to apply to the question of
whether Iraq and IMOD are legally separate persons for the
purposes of determining immunity under the FSIA, we begin
with the premise that the question of a foreign state’s entitlement to sovereign immunity—which necessarily includes an
10

Iraq does not dispute the second part of the district court’s conclusion
that if it is the case that IMOD and Iraq are not separate legal persons for
the purpose of applying FSIA’s commercial activities exception, it necessarily follows that Wye Oak’s allegations as to IMOD may be used to
bring Wye Oak’s claim against Iraq within the commercial activities
exception. We also find no reason not to follow this logical conclusion,
which is identical to the result reached when other sub-state entities are
determined not to be separate legal persons. See, e.g., Doe v. Holy See,
557 F.3d 1066, 1078-79 (9th Cir. 2009) (noting that the commercial activities of an agency or instrumentality of a foreign state can be used to bring
the foreign state itself within the commercial activities exception if the
government’s control over the agency or instrumentality is sufficient to
destroy legal separateness); Transamerica Leasing, Inc. v. La Republica
de Venezuela, 200 F.3d 843, 848 (D.C. Cir. 2000) (noting that "[a] sovereign is amenable to suit based upon the actions of an instrumentality it
dominates because the sovereign and the instrumentality are in those circumstances not meaningfully distinct entities; they act as one").

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examination of exceptions to that immunity—is a question of
subject matter jurisdiction. See Rux, 461 F.3d at 472. Next,
we follow the "settled proposition that the subject-matter
jurisdiction of the lower federal courts is determined by Congress ‘in the exact degrees and character which to Congress
may seem proper for the public good.’" Argentine Republic v.
Amerada Hess Shipping Corp., 488 U.S. 428, 433 (1989)
(quoting Cary v. Curtis, 44 U.S. (3 How.) 236, 245 (1845)).
Congress has set forth the exact degree and character of foreign state’s entitlement to immunity—and hence the jurisdiction of federal courts to hear a claim against that foreign
state—in the FSIA. See 28 U.S.C. § 1602 ("Claims of foreign
states to immunity should henceforth be decided by courts of
the United States and of the States in conformity with the
principles set forth in this chapter."). Accordingly, we conclude that it is the FSIA, and not Iraqi law, that provides the
framework for determining whether Iraq and IMOD are to be
treated a separate legal persons in applying the FSIA’s commercial activities exception.
Resisting this syllogism, Iraq asserts that the Supreme
Court in Bancec held that, in this context, "the status of an
entity as a separate [legal] person is properly governed by the
law under which it is organized." Appellant’s Br. 24. We find
no basis for Iraq’s interpretation of Bancec. In Bancec, the
Court had to decide whether to hold a state-owned bank—a
separate legal person under Cuban law—responsible for certain debts of the state. Relying on the facts presented to it, the
Court held that equitable principles required it to ignore that
separate legal status and impute the state’s liability to the
bank. 462 U.S. at 631-33. If anything, the Court’s reasoning
in Bancec undermines Iraq’s argument. Indeed, the Court in
Bancec ultimately rejected the argument—similar to Iraq’s
here—that "the effect to be given to [an entity’s] separate
[legal] status," is to be determined by "the law of the state that
establishes" the entity. Id. at 621. The Court rejected this
argument because "[t]o give conclusive effect to the law of
the chartering state . . . would permit the state to violate with

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15

impunity the rights of third parties under international law
while effectively insulating itself from liability in foreign
courts." Id. at 621-22. We agree.
2.
Having concluded that our analysis as to whether Iraq and
IMOD are legally separate in this context must proceed
through the FSIA, we now turn to the language of the statute.
As we explain below, the statutory text supports our conclusion that a foreign state and its armed forces are not legally
separate for jurisdictional purposes. Briefly, the FSIA applies
to the component parts of a foreign state, distinguishing those
that are legally separate from the foreign state from those that
are not. Applying this statutory dichotomy to the IMOD, we
conclude that it is among the category of entities that are not
legally distinct.
The FSIA applies not only to a foreign state, but also to that
state’s components, such as the IMOD. 28 U.S.C. § 1603(a).
After noting that the term "foreign state" includes a "political
subdivision" thereof, the FSIA goes on to further differentiate
an "agency or instrumentality" in terms that are significant to
our discussion: an agency or instrumentality, under the FSIA,
is "a separate legal person." Id. at § 1603(b)(1). The distinction has consequences in terms of an entity’s rights and
responsibilities under the FSIA. For example, as would logically follow with respect to a separate legal entity, punitive
damages are available only against an agency or instrumentality. Id. at § 1606. Agencies or instrumentalities are also more
vulnerable to attachment of U.S.-based property. Id. at
§ 1610.
As the statutory text attributes separate legal status only to
an agency or instrumentality, which is, in turn, distinguished
as a subset of "political subdivision," the FSIA creates a
dichotomy in which a political subdivision does not have separate legal personhood unless it qualifies as an agency or

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instrumentality. See Magness v. Russian Federation, 247 F.3d
609, 613 n.7 (5th Cir. 2001) ("Under 28 U.S.C. § 1603(a), the
term ‘political subdivision’ includes all governmental units
beneath the central government. An ‘agency or instrumentality’ of a foreign state, on the other hand, is defined as any . . .
political subdivision of a foreign state which is a separate
legal person or entity."). We must therefore decide whether
IMOD is a political subdivision or an agency or instrumentality.11
To determine whether an entity is an agency or instrumentality—and thus legally separate from the foreign state—or a
mere political subdivision, courts ask "whether the core functions of the foreign entity are predominantly governmental or
commercial." Transaero, Inc. v. La Fuerza Aerea Boliviana,
30 F.3d 148, 151 (D.C. Cir. 1994). If the core functions are
commercial, courts treat the entity as an agency or instrumentality—legally separate from the foreign state; if the core
functions are governmental, courts treat the entity as a mere
political subdivision—not legally separate from the foreign
state. Id. at 153. While Transaero involved the FSIA’s service
of process provision, courts have similarly utilized the core
functions test in the context of the FSIA’s exceptions to
immunity. See, e.g., Garb v. Republic of Poland, 440 F.3d
579, 594-95 (2d Cir. 2006) (takings exception); Roeder v.
Islamic Republic of Iran, 333 F.3d 228, 234-35 (D.C. Cir.
2003) (terrorism exception); Servaas Inc. v. Republic of Iraq,
No. 10-828-CV, 2011 WL 665334, at *2-3 (2d Cir. Feb. 16,
2011) (unpublished) (commercial activities exception).12
11

Although Iraq has conceded that IMOD is a political subdivision and
not an agency or instrumentality—see Appellant’s Br. 23, 24—out of an
abundance of caution we proceed to assure ourselves of our subject matter
jurisdiction.
12
Servaas involved facts very similar to those we encounter in this
appeal. There the Second Circuit held that the acts of Iraq’s Ministry of
Industry were attributable to Iraq for the purposes of applying FSIA’s
commercial activity exception.

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Following the lead of these opinions, we look to the core
functions of IMOD. The core functions of IMOD—waging
war and defending the state—are inherently governmental.
See, e.g., Transaero, 30 F.3d at 153 ("[A]rmed forces are as
a rule so closely bound up with the structure of the state that
they must in all cases be considered as the ‘foreign state’
itself, rather than a separate ‘agency or instrumentality’ of the
state."). Accordingly, we hold that for the purposes of the
FSIA—including application of the commercial activities
exception—IMOD is a political subdivision of Iraq and thus
Iraq and IMOD are legally one and the same. It follows that
if Wye Oak’s allegations would be sufficient to bring a claim
against IMOD within the FSIA’s commercial activities exception, those same allegations are also sufficient to bring a claim
against Iraq within the FSIA’s commercial activities exception.13
B.
Having concluded that IMOD and Iraq are not legally separate, we now examine whether Wye Oak’s allegations against
Iraq—framed in terms of the activity of IMOD—are sufficient
13

We believe our dissenting colleague has misapprehended the applicable law in contrasting "the ‘Bancec’ analysis" with "the ‘core functions’
test." See post at 25-26 n.5. Contrary to the dissent’s implication, Bancec
is not at odds with the core functions test and we could find no opinion
that has so held. The Court in Bancec was not faced with the question of
jurisdiction under the FSIA, to which the core functions test is aimed.
Indeed, if anything, the two inquiries appear to complement each other as
they are both used to determine the separateness of government units,
although in different contexts. See Compagnie Noga D’Importation et
D’Exportation, S.A. v. Russian Federation, 361 F.3d 676, 687-88 (2d Cir.
2004) (noting the similarity between the core functions test and the Bancec analysis). To that point, we observe that subsequent to the 5th Circuit
case noted in the dissent as applying the Bancec analysis—Walter Fuller
Aircraft Sales, Inc. v. Republic of the Philippines, 965 F.2d 1375 (5th Cir.
1992)—the 5th Circuit recognized the propriety of the core functions test.
See Magness, 247 F.3d at 613 n.7.

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to bring Wye Oak’s claim against Iraq within the FSIA’s
commercial activities exception. We conclude that they are.
The commercial activities exception provides:
A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States
in any case . . . in which the action is based [1] upon
a commercial activity carried on in the United States
by the foreign state; or [2] upon an act performed in
the United States in connection with a commercial
activity of the foreign state elsewhere; or [3] upon an
act outside the territory of the United States in connection with a commercial activity of the foreign
state elsewhere and that act causes a direct effect in
the United States.
28 U.S.C. § 1605(a). To begin, because the provisions of the
exception are disjunctive, only one need apply. Thus, if Wye
Oak’s claim against Iraq falls into one of these three exceptions, federal courts have subject matter jurisdiction to hear
the claim. We note as well that the law requires a jurisdictional nexus: the commercial activity alleged by Wye Oak for
the purpose of establishing jurisdiction must form the basis of
the claim for which Wye Oak seeks relief on the merits. See
Gerding v. Republic of France, 943 F.2d 521, 526 (4th Cir.
1991).
Although the district court found that Wye Oak’s claim fell
within all three exceptions, we focus on the second: "an act
performed in the United States in connection with a commercial activity of the foreign state elsewhere." 28 U.S.C.
§ 1605(a)(2). Relying on the contract, the letter addendum,
and the allegations in its complaint, we conclude that Wye
Oak has presented sufficient facts to support a reasonable
inference that Iraq, through IMOD, engaged—pursuant to the
contract—in the preparation for sale and sale of scrap metal
in Iraq—a commercial activity. See Saudi Arabia v. Nelson,

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507 U.S. 349, 360 (1993) ("[A] foreign state engages in commercial activity . . . where it acts ‘in the manner of a private
player within’ the market." (quoting Republic of Argentina v.
Weltover, Inc., 504 U.S. 607, 614 (1992))). Wye Oak has also
presented sufficient facts to support a reasonable inference
that it performed acts in the United States (accounting, computer programming, contacting agents of foreign nations, etc.)
in connection with the scrap sale activities of IMOD in Iraq.
Therefore, we conclude that Wye Oak has made a sufficient
showing that its breach of contract claim is based upon an act
performed in the United States in connection with a commercial activity of the foreign state elsewhere.
Iraq does not dispute that IMOD was engaged in the commercial activity of selling scrap or that Wye Oak performed
the just described acts in the United States. Iraq instead challenges its jurisdictional nexus, asserting that Wye Oak has not
presented sufficient facts to support an inference that the acts
performed by it in the United States were performed pursuant
to the contract. First, Iraq argues that the acts performed by
Wye Oak in the United States were "administrative and backoffice tasks" and those tasks were not part of the contract.
Appellant’s Br. 50. Iraq alternatively argues that even if the
tasks were part of the contract, "Wye Oak agreed that any
administrative work ‘necessary’ to perform the [contract]
would be performed on-site in Iraq. Thus, [according to Iraq,]
none of the alleged administrative and back-office tasks purportedly undertaken in the United States were within the
actual scope of Wye Oak’s work under the alleged contract."
Id.
We disagree. First, many of the activities alleged by Wye
Oak to have occurred in the United States—for example, the
contacting of agents of foreign governments and the tracking
of world scrap prices—go beyond administrative tasks and
thus would fall under the contract even accepting Iraq’s argument. Second, assuming such activities are administrative, we
find no basis upon which to conclude that those tasks were

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not part of Wye Oak’s performance under the contract. While
the contract does make Wye Oak responsible for its own costs
of performing administrative activities, it does not follow that
the contract excluded such activities. Indeed, the broad language of the contract and the letter addendum require Wye
Oak to "use all reasonable commercial efforts . . . in the
development of markets and sales prospects for Military
equipment," J.A. 23, and commission Wye Oak "to inventory,
assess and recover" equipment, J.A. 29. The so-called "administrative and back-office tasks" performed by Wye Oak
were plausibly part of its "reasonable commercial efforts"
and, further, were plausibly necessary to inventory and assess
equipment.
Finally, we find no merit to Iraq’s argument that "Wye Oak
agreed that any administrative work ‘necessary’ to perform
the [contract] would be performed on-site in Iraq." The provision Iraq refers to provides "office facilities for [Wye Oak]
. . . at the various locations and sites [in Iraq] as necessary to
perform the duties of [the contract]." J.A. 25 (emphasis
added). Although this provision presumably made it easier for
Wye Oak to perform its contractual duties in Iraq, we cannot
plausibly interpret this provision to require that all work under
the contract be performed in Iraq. Accordingly, we hold that
Wye Oak’s breach of contract is based upon an act performed
in the United States in connection with a commercial activity
of the foreign state elsewhere.
Therefore, we agree with the district court that the commercial activities exception to foreign sovereign immunity applies
to Wye Oak’s claim against Iraq for breach of contract, and,
consequently, that Iraq is subject to the jurisdiction of U.S.
courts.
IV.
For the foregoing reasons, the holding of the district court
is
AFFIRMED.

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SHEDD, Circuit Judge, dissenting:
The appellant convinced the district court to transfer this
case to another district court, in the District of Columbia.
Having received the transfer, the appellant now appeals to this
circuit court for a reversal of the original district court’s decision not to dismiss the case for lack of subject matter jurisdiction. I would dismiss this appeal because under the rules
governing jurisdiction in transferred cases, I do not think we
have appellate jurisdiction. Accordingly, I respectfully dissent.
As the majority correctly notes, our appellate jurisdiction
analysis begins with the general rule: when a case has been
properly transferred (as here) by a district court, "the transferor court — and the appellate court that has jurisdiction over
it — loses all jurisdiction over the case and may not proceed
further with regard to it." 15 Charles A. Wright, Arthur R.
Miller, & Edward H. Cooper, Federal Practice & Procedure
§ 3846 (4th ed. 2007); see also Wilson-Cook Medical, Inc. v.
Wilson, 942 F.2d 247, 250 (4th Cir. 1991) (describing the
general rule). However, as the majority also correctly notes,
we have recognized an exception to this general rule. See
TechnoSteel, LLC v. Beers Constr. Co., 271 F.3d 151 (4th Cir.
2001). The majority concludes that the reasoning that underlies the TechnoSteel exception should be applied broadly. I
disagree. In my opinion, TechnoSteel is not a new general rule
on transfer jurisdiction, but merely an exception to the general
rule. I believe the reasoning of TechnoSteel, when understood
in context, is inapposite, and therefore inapplicable, to the
present appeal.
In TechnoSteel, we concluded that the transfer principles
generally applicable to interlocutory decisions were "unsuitable in the quite different context of timely filed appeals from
immediately appealable decisions of our district courts." Id. at
154. In reaching that conclusion, we acknowledged that courts
have adhered to the general rule that a transfer contemplates

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a plenary transfer of the entire case. Id. at 160. However,
under the facts presented in TechnoSteel, we concluded that
application of the general rule to immediately appealable
decisions of the transferor court rendered the general rule "unworkable and unfair." Id.
Our decision in TechnoSteel was largely a pragmatic one,
based in part on our desire to avoid "frantic appellate procedure[s]," such as racing to file an appeal before the file was
transferred or seeking a retransfer from the transferee court
before the time for appeal ran in the transferor court. Id. at
161. Perhaps more importantly, we also recognized, based on
the specific facts in TechnoSteel and based on a review of the
law of the transferee court,1 that the transferee circuit would
likely not review the decision. Thus, under the general rule,
there would have been no appellate review available, and such
a result would have been unfair. Id. at 160-61.
Those practical concerns are absent here. Admittedly, an
order denying sovereign immunity (which determines the
issue of subject matter jurisdiction) is an immediately appealable collateral order, which is required for the TechnoSteel
exception. However, while the presence of such an immediately appealable collateral order is necessary under TechnoSteel, such an order, alone, should not be sufficient to ignore
our general rule. The underlying issue in this appeal is subject
matter jurisdiction, and subject matter jurisdiction can be
raised by either party, or sua sponte by the court, at any time.
See, e.g., In re Kirkland, 600 F.3d 310, 314 (4th Cir. 2010)
("Subject matter jurisdiction cannot be forfeited or waived,
and can be raised by a party, or by the court sua sponte, at any
time prior to final judgment."); see also Athens Community
1

"The Eleventh Circuit Court of Appeals would not entertain an appeal
from the South Carolina district court’s denial of TechnoSteel’s petition
to compel arbitration." TechnoSteel, 271 F.3d at 156 (citing 28 U.S.C.
§ 1294(1); Roofing & Sheet Metal Servs., Inc. v. La Quinta Motor Inns,
Inc., 689 F.2d 982, 986 n.5 (11th Cir. 1982)).

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Hosp., Inc. v. Schweiker, 686 F.2d 989, 992 (D.C. Cir. 1982)
(same). Further, a "federal court has an independent obligation to assess its subject-matter jurisdiction." Constantine v.
Rectors & Visitors of George Mason Univ., 411 F.3d 474, 480
(4th Cir. 2005). Therefore, regardless of our decision on the
question presented in this appeal — whether subject matter
jurisdiction exists — the parties or the transferee court may at
any time (and perhaps the court must, if it has any question
about its authority in a case) re-address the issue of subject
matter jurisdiction as this case proceeds there. Thus, this
appeal based on the issue of subject matter jurisdiction does
not implicate any of the practical problems the TechnoSteel
decision sought to avoid.2
TechnoSteel also justified its exception to the general rule
in transferring jurisdiction because under those facts the general rule would have been "unworkable and unfair." TechnoSteel, 271 F.3d at 160. Here, however, it is the application
of the TechnoSteel exception which would make the result
unfair and potentially unworkable. The majority’s ruling
would clearly create a tenuous situation if the courts in the
District of Columbia were to find that subject matter jurisdiction does not exist. Astonishingly, this would create a circuit
split on the same case. Moreover, the possibility of such differing views would encourage forum shopping when a party,
with a case which does not have subject matter jurisdiction
2
TechnoSteel specifically dealt with a different jurisdictional context as
well. TechnoSteel involved a district court’s discretionary authority to
transfer a case "[f]or the convenience of parties and witnesses, in the interest of justice" under 28 U.S.C. § 1404(a). Here, because the district court
found that Wye Oak failed to establish venue in the Eastern District of
Virginia, the transfer was statutorily required under § 1391(f)(4). Accordingly, the district court transferred the case to the District of Columbia,
which is the default venue for actions against foreign states. That finding
has not been appealed by either party, and is therefore not before us. Thus,
not only is venue improper in the district court below, but under the facts
of this case, the federal courts in the District of Columbia are the only
courts where venue is proper.

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under the precedent of the appropriate circuit, could file in
another circuit which is more likely to provide a favorable ruling. Surely, such litigation tactics should be discouraged. On
the other hand, had the majority reversed the district court on
the merits, we would remand this case to a district court
which no longer has jurisdiction and in which venue is statutorily improper. To me, both of these results are unworkable.
Nor is the application of the general rule on transfer jurisdiction unfair in this case. To the contrary, it is the application
of the TechnoSteel exception under these facts which is not
fair. First, in TechnoSteel, the defendant sought a transfer,
received it, and then sought to eliminate the plaintiff’s appeal
rights. Thus, the party whose transfer request was granted
sought to eliminate the other party’s rights. That clearly is
unfair. In contrast, here the defendant sought and received a
transfer and now appeals a separate adverse ruling in the case
in an effort to win on the merits in this, the transferor circuit.
While attempting to get this "first bite" of the apple in our circuit, the defendant is in no way prohibited from seeking a
"second bite" in the District of Columbia (the transferee
court) if he loses before us on the merits. To disallow this
"double bite" strategy created by the defendant3 is not unfair
at all; rather, it would be unfair to subject the plaintiff to such
a double appeal.
The majority apparently believes these problems concerning workability and fairness will be addressed by the law of
the case doctrine. Such a view overstates that doctrine, especially in the context of subject matter jurisdiction. The law of
the case "is a prudential rule rather than a jurisdictional one,"
Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739-40
3

I agree with the majority that the district court could have taken steps
— for example, staying the transfer pending our review of this appeal —
to avoid the "somewhat anomalous circumstances" presented in this
appeal. However, the Republic of Iraq also bears responsibility for the odd
procedural posture.

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(D.C. Cir. 1995), and it "merely expresses the practice of
courts generally to refuse to reopen what has been decided,
not a limit to their power." Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (quoting Messinger v.
Anderson, 225 U.S. 436, 444 (1912)) (internal quotation
marks omitted). It "is not absolute nor inflexible." Capital
Invs. Co. v. Executors of Estate of Morrison, 584 F.2d 652,
654 (4th Cir. 1978). This is particularly true with regard to
determinations of subject matter jurisdiction:
[Law of the case] does not and cannot limit the
power of a court to reconsider an earlier ruling. The
ultimate responsibility of the federal courts, at all
levels, is to reach the correct judgment under law.
Though that obligation may be tempered at times by
concerns of finality and judicial economy, nowhere
is it greater and more unflagging than in the context
of subject matter jurisdiction issues, which call into
question the very legitimacy of a court’s adjudicatory authority.
American Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505,
515 (4th Cir. 2003).4
Therefore, because the exceptional concerns addressed by
TechnoSteel are not present in this case and because the application of TechnoSteel would lead to a result that is "unworkable and unfair," I find no reason to apply its exception.
Accordingly, because the case has been properly transferred,
I believe we are divested of jurisdiction to review this appeal.5
4

The only time law of the case would prevent revisiting subject matter
jurisdiction would occur when a superior court had decided the issue and
then the case was placed back before a lower court over which the superior court had binding authority. That scenario is not present here.
5
Even if we had appellate jurisdiction in this case, I would decline to
exercise it for prudential reasons in order to avoid the problems — real
and potential — which would be created by our ruling on the merits of this

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appeal. See, e.g., Quingyun Li v. Holder, ___ F.3d ___, 2011 WL 6008978
(4th Cir. 2011) (finding jurisdiction over an immediately appealable order
from the Board of Immigration Appeals but nonetheless declining to exercise jurisdiction for prudential reasons). The majority’s approach is particularly troubling where, as here, courts have differed on the appropriate
standard to use when analyzing the question of subject matter jurisdiction
with regard to the Foreign Sovereign Immunity Act ("FSIA"). Compare
Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 151 (D.C. Cir.
1994) (adopting the "core functions" test), with First Nat’l City Bank v.
Banco Para El Comercio Exterior De Cuba, 462 U.S. 611 (1983)
("Bancec"), and Walter Fuller Aircraft Sales, Inc. v. Republic of Philippines, 965 F.2d 1375 (5th Cir. 1992) (relying on the Bancec analysis).
Thus, it seems especially prudent to leave a determination on subject matter jurisdiction to the circuit which unarguably has jurisdiction over the
case in order for that circuit to apply its own relevant precedent. This is
not because the "law or facts involved are complicated or unsettled," ante
at 10, but for reasons of comity. Recognition of this principle of comity
underlies other federal jurisdiction doctrines. See, e.g., Martin v. Stewart,
499 F.3d 360, 363 (4th Cir. 2007) (noting the principle of comity underscores abstention doctrines); see also Pacesetter Sys., Inc. v. Medtronic,
Inc., 678 F.2d 93, 94 (9th Cir. 1982) (noting the generally recognized doctrine of federal comity underscores the first-to-file rule); Ellicott Mach.
Corp. v. Modern Welding Co., Inc., 502 F.2d 178, 180 n.2 (4th Cir. 1974)
(applying the "first to file" rule).