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Click here for the full text of this decision FACTS:In 1984, Equator Bank Limited, Af-Cap’s predecessor-in-interest, loaned the Congo funds for building a highway. The following year, the Congo defaulted on the loan. More than 10 years later, Connecticut Bank of Commerce, an assignee of Equator Bank, obtained a judgment against the Congo in England. The Congo did not make the payments required by the judgment and, as a consequence, CBC proceeded to enforce the judgment in the United States. In 2000, a New York state court entered a money judgment against the Congo in the amount of $13,628,340 plus interest. Subsequently, the New York court entered an order permitting attachment and execution against the assets of the Congo in satisfaction of the judgment. In 2001, CBC registered the New York judgment in a Texas state court and simultaneously filed a garnishment action. CBC alleged that CMS Nomeco Congo Inc., The Nuevo Congo Co., and Nuevo Congo Ltd. (the CMS companies), among others, owed royalties and taxes to the Congo and sought to garnish those obligations to satisfy the judgment. The CMS companies own working interests in a convention (the convention) that governs oil production in Congolese waters. Under the convention, the interest owners pay the Congo royalties, which accrue when oil is taken from Congolese territory. The Congo chooses the method of payment for these royalties, either cash or “in kind” oil. Since 1999, the Congo has opted to receive 100 percent of its payments “in kind.” The state court, ex parte, issued writs of garnishment. The Congo and the CMS companies removed the action to the U.S. District Court for the Western District of Texas. In an order dated March 16, 2001, the district court held that the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. �1602 (2000), prohibited garnishment of the in kind royalties and tax obligations. This court vacated that decision, recognizing that the property at issue could fall within an exception to FSIA if the property was used by the Congo in conjunction with commercial activity in the United States. Conn. Bank of Commerce v. Republic of Congo, 309 F.3d 240 (5th Cir. 2002). The case was remanded for further factual development with regard to whether the property was used for “commercial activity.” On remand, the district court found that the Congo did not use its royalties and tax obligations for commercial activity. In doing so, the court dissolved the writs of garnishment against the CMS companies. On appeal, this court vacated the district court’s decision, holding that the obligations at issue had been used for a “commercial activity” because the Congo used some of the obligations to settle a suit with the National Union Fire Insurance Co. (NUFI). Af-Cap Inc. v. Republic of Congo, 383 F.3d 361, amended on rehearing, 389 F.3d 503 (5th Cir. 2004) (Af-Cap II). It also found that the situs of the obligations was the United States. This court again remanded, this time instructing the district court to determine which obligations had been used to pay the NUFI debt. Only those obligations would fall within the “commercial activity” exception. Following the remand, the district court denied a motion to reinstate the original writs of garnishment and, instead, issued new writs. Shortly thereafter, however, the district court dissolved the new writs. In doing so, the court found that the non-monetary obligations owed by the CMS companies were not proper subjects of garnishment under Texas law. In the same decision, the district court held that Texas law allowed a “turnover order,” as an alternative method of attachment. The court issued a turnover order on Feb. 22, 2005, that purports to 1. take “possession and control of all future royalty obligations owed to the Congo,” 2. “order . . . the Congo to turn over such royalty payments into the registry of the court” and 3. order the Congo “to execute in three originals within three days the attached letter of instruction . . . from the Congo to the parties who pay royalties under the Convention to the Congo revoking prior instructions regarding payment of royalty and instructing that the royalty be paid in cash into the registry of the Court.” The royalties were to be applied in favor of Af-Cap until the judgment was satisfied. In response to the turnover order, the Congolese Ministry of Foreign Affairs and Francophony sent a letter to the district court stating that the Congo would not follow the order because it violated the country’s sovereignty. The district court then issued an order directing the clerk of court to execute a letter of instruction, directing the CMS companies to pay royalty obligations to the court’s registry. On July 1, 2005, the district court found the Congo in contempt for failing to comply with the turnover order. Neither the Congo nor the CMS companies has complied with the orders and the Congo remains in contempt. The parties timely appealed 1. the order dissolving the writs of garnishment, 2. the turnover order, and 3. the contempt order. HOLDING:The court affirms the district court’s decision to dissolve the garnishment writs; vacates the turnover order; vacates the contempt order, and remands. This case turns on the fact that the obligation at issue is non-monetary. The CMS companies, operating under the convention, do not owe money to the Congo; they owe oil. Af-Cap does not ask this court to allow it to garnish that oil, assuming it could do so under the FSIA, and instead seeks to be the beneficiary of the nonmonetary obligation. Texas does not allow garnishment of this type of debt. Therefore, the district court did not err in dissolving the writs of garnishment. Af-Cap also argues that, as a plaintiff in a garnishment action, it can step into the shoes of the Congo and elect to receive the royalty payments in cash. This reasoning, however, ignores the chronology of a garnishment proceeding. The writs at issue must first capture a debt before a garnishor can step into the shoes of the creditor. If this were not the rule, would-be garnishors could manipulate assets so that a writ could attach. Here, the writs failed to capture anything, given that the obligation is non-monetary. Therefore, Af-Cap has no authority to request payment in cash. There is no evidence, and certainly no strong evidence, that the Congo implicitly waived immunity to suit in Texas. Af-Cap has failed to argue, much less show, how in personam jurisdiction is appropriate in Texas. Because the district court erroneously held that the Congo waived its immunity, it abused its discretion. Af-Cap argued that the Congo’s noncompliance with the turnover order should result in the dismissal of this appeal pursuant to the fugitive disentitlement doctrine. The policy concerns associated with the doctrine are not served. The underlying foundation of the doctrine is that it deters “disrespect for the legal process.” Ortega-Rodriguez v. United States, 507 U.S. 234 (1993). Sovereignty assertions, however, are different than blatant disrespect for the legal process. As explained above, the Congo correctly believed that under the FSIA the district court lacked in personam jurisdiction. The Congo asserts that its position was not designed to be disrespectful. As evidence of that fact, it points to the Congolese minister who promptly informed the court that the country would not obey the turnover order because of sovereignty concerns. In addition, Af-Cap has failed to cite a single case in which the doctrine has been used against a foreign state. The contempt order, as written, does not fall within the provisions of the FSIA. A review of the relevant sections, �1610 and �1611, shows that they do not present a situation in which the order could stand. Those sections describe the available methods of attachment and execution against property of foreign states. Monetary sanctions are not included. Therefore, in issuing the contempt order, the district court relied on an erroneous conclusion of law. As such, the court abused its discretion, the court concludes. OPINION:Benavides, J.; DeMoss, Benavides and Prado, JJ.

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