On February 27, 2017, the U.S. District Court for the District of Columbia issued an opinion in Nnaka v. Nigeria, 1:16cv1400. In that suit, Nnaka alleged that Nigeria had retained him as an attorney to find Nigerian assets and to appear on Nigeria’s behalf in certain U.S. asset forfeiture court proceedings. Later, however, Nigeria wrote a letter to the U.S. Department of Justice expressly disclaiming Nnaka’s authority to act on its behalf in the court proceedings, which caused the U.S. court to strike the claims that Nnaka had filed. Nnaka argued that Nigeria’s conduct caused him significant damage.
In its February 27 decision, the Court held that it had subject-matter jurisdiction over Nnaka’s lawsuit pursuant to the commercial activity exception of the Foreign Sovereign Immunities Act, 28 U.S.C. §1605(a)(2), but that the suit should nonetheless be dismissed pursuant to the act of state doctrine and for failure to state a claim upon which relief could be granted.
Specifically, the Court found the commercial activity exception applied because Nnaka had alleged a service contract between himself and Nigeria, namely the agreement whereby Nigeria retained his legal services in the asset forfeiture proceedings. Although Nigeria characterized the contract as one for a sovereign purpose – to repatriate proceeds of official corruption – the Court found the purpose of the contract to be irrelevant. The fact is: the parties engaged in a commercial transaction. Moreover, Nigeria’s conduct had a direct effect in the United States because Nigeria communicated with the U.S. government about the authority of Nnaka, a U.S. citizen, to represent Nigeria in U.S. litigation, and this communication allegedly caused Nnaka damage in the United States.
The act of state doctrine nonetheless barred the most prominent of Nnaka’s claims because he essentially asked the U.S. court to declare illegal the official actions of a foreign sovereign performed within its own territory, e.g., Nigeria’s communications with the U.S. Department of Justice. The rest of the claims were dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.
On March 10, 2017, Nnaka filed an appeal, 17-7044, with the U.S. Court of Appeals for the D.C. Circuit.
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