Vila v. INTER-AMERICAN INVESTMENT CORPORATION

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 13, 2009 Decided June 19, 2009

No. 08-7042

JORGE VILA,
APPELLEE

v.

INTER-AMERICAN INVESTMENT CORPORATION,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-02143-RBW)

Nancy L. Perkins argued the cause and filed the briefs
for appellant.

F. Douglas Hartnett argued the cause and filed the brief
for appellee.

Before: ROGERS and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the court by Circuit Judge ROGERS.

Dissenting opinion by Senior Circuit Judge WILLIAMS.
 2

ROGERS, Circuit Judge: The Inter-American Investment
Corporation (“IIC”) appeals the denial of its motion to dismiss
an independent consultant’s unjust enrichment claim on grounds
of immunity and untimeliness. Applying the well-settled test in
this circuit, we affirm the denial of immunity. By waiving
immunity from unjust enrichment claims of independent
consultants whom the IIC solicits to help negotiate the
commercial lending agreements that are central to its function,
the IIC gains a corresponding benefit that furthers its objectives.
Consultants would be more willing to negotiate with the IIC and
to enter into contracts with it if they had the reassurance that
should their agreement or formal contract fail for whatever
reason, they would be fairly compensated for any benefit they
have provided that the IIC has unjustly retained. Such a benefit
affords the IIC flexibility in using independent consultants,
allowing it, for instance, to establish and maintain relationships
with consultants whom it may want to engage without a formal
written agreement. Furthermore, underlying an unjust
enrichment claim are the same contract principles as the
promissory estoppel claim held not to be barred by immunity in
Osseiran v. Int’l Fin. Corp., 552 F.3d 836 (D.C. Cir. 2009). As
the IIC has not posited litigation costs that are distinguishable
from those involved in a claim for promissory estoppel, the IIC
suggests no principled basis on which to distinguish our
precedent involving international organizations with near-
identical waiver provisions. Accordingly, taking the allegations
of the complaint as true for purposes of the motion to dismiss,
because the unjust enrichment claim was timely filed we remand
the case to the district court.

I.

The IIC is an international organization formed by its
member nations under the Agreement Establishing the Inter-
American Investment Corporation, Nov. 19, 1984, T.I.A.S. No.
 3

12087 (entered into force, March 23, 1986) (“IIC Charter”).
Currently, forty-three countries, including the United States, are
members of the IIC. See IIC Inter-American Investment
Corporation: Member Countries, http://www.iic.int/
membercountries. As stated in its Charter, the purpose of the
IIC is “to promote the economic development of its regional
member countries by encouraging the establishment, expansion,
and modernization of private enterprises.” IIC Charter art. I,
§ 1. Together with other international organizations, the IIC
fulfills this objective through commercial lending that is
directed to private enterprises in the member countries. IIC
Charter art. I, § 2. One way the IIC accomplishes this task is by
structuring and arranging loans jointly with other lenders to
finance projects in member countries.

Jorge Vila is an independent banking consultant in
emerging markets. On several occasions from early 2001 to
December 2002, the IIC engaged Vila’s services through formal
written contracts in connection with projects in Latin America
and the Caribbean. According to the complaint, from January
to August 2003, after Vila’s previous contracts had expired,
several of the IIC’s senior officers requested Vila’s consulting
services with regard to four new projects, verbally agreeing to
complete contractual documentation, including compensation,
“later.” Compl. ¶ 7. These projects related to the IIC’s loan
program and ranged from preparation of a marketing description
of the organization’s inter-bank loan program to assistance in
loan syndication for specific projects. For example, Vila
assisted IIC senior officers in obtaining a mandate from a
Brazilian bank, Banco Safra, to arrange a syndicated credit
facility for the bank. Vila identified potential participant banks,
negotiated terms and conditions of the agreement with them and
Banco Safra, and contributed to the draft, review, and
distribution of the relevant confidential documents. See Compl.
¶ 8. Attached to the complaint are approximately 270 emails
 4

documenting Vila’s correspondence with the IIC’s officers and
clients and his services. These emails indicate that in addition
to having Vila gather “intelligence” on prevailing interest rates,
market conditions, and competitors, the IIC authorized Vila to
negotiate terms and conditions of the projects with the IIC’s
clients, requested his participation in internal discussions of
confidential financial information, and invited him to participate
on conference calls with IIC clients regarding the projects.

Vila discussed his expectation of compensation with the
IIC Regional Head Victor Moscoso between January and May
2003. According to the complaint, Moscoso acknowledged this
expectation by email of June 2, 2003. Further, the IIC
continued to solicit and accept Vila’s services afterwards. Yet
on August 4, 2003, while acknowledging Vila’s work, Moscoso
refused to compensate him and suggested new terms for his
work in the future. When Vila appealed to Stephen Reed, the
IIC’s Deputy General Manager, he too acknowledged Vila’s
work but expressed a different understanding of the agreement
between Vila and the IIC, noting the absence of a written
contract while stating he would ensure Vila’s work was
“clarified and documented” by the IIC and Vila would be
compensated “based on a success fee.” Compl. ¶ 15. Vila
rejected the notion of a success fee by email of September 10,
2003 to Reed, and on October 9, 2003, he emailed Jacques
Rogozinski, General Manager of the IIC, an invoice in the
amount of $89,909.00 for his services. On November 4, 2003,
Alejandra Vallejo, IIC Coordinator of Institutional Affairs,
advised Vila that the IIC could not process any payments for
consulting services unsupported by a formal agreement with
defined terms and conditions. Vila’s appeals, beginning
December 23, 2003 to Enrique Iglesias, then-President of the
IIC, were to no avail, as were his further entreaties to two
entities with oversight responsibilities over the IIC.
 5

On October 26, 2006, Vila sued the IIC for breach of
implied contract, unjust enrichment, defamation, and tortious
interference with a prospective business advantage. Upon
removal to federal court, see 22 U.S.C. § 283gg (2000), the IIC
moved to dismiss the complaint on the grounds of immunity,
pursuant to Federal Rule of Civil Procedure 12(b)(1), and
because the statute of limitations had run, pursuant to Rule
12(b)(6). The district court dismissed all except the unjust
enrichment claim and ruled that the complaint was timely filed.
The IIC appeals, and the court has jurisdiction over this
interlocutory appeal. See Kirkham v. Societe Air Fr., 429 F.3d
288, 291 (D.C. Cir. 2005); Rendall-Speranza v. Nassim, 107
F.3d 913, 916 (D.C. Cir. 1997).1 Our review is de novo, see
Vann v. Kempthorne, 534 F.3d 741, 745-46 (D.C. Cir. 2008);
Kirkham, 429 F.3d at 291, and in reviewing the denial of the
motion to dismiss, we take the allegations of the complaint as
true, see Jerome Stevens Pharmaceuticals, Inc. v. Food & Drug
Admin., 402 F.3d 1249, 1253-54 (D.C. Cir. 2005); Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

II.

The International Organizations Immunities Act applies
to those organizations which the President designates as entitled
to the benefits of the Act. Section 2(b) of the Act provides that
such organizations “shall enjoy the same immunity from suit
and every form of judicial process as is enjoyed by foreign
governments, except to the extent that such organizations may

1
On January 26, 2009, the district court denied the IIC’s
motion for certification of the limitations issue pursuant to 28 U.S.C.
§ 1292(b). This court had previously denied the IIC’s motion to hold
the appeal in abeyance pending the district court’s ruling. Vila v.
Inter-Am. Investment Corp., Order No. 08-7042 (D.C. Cir. Oct. 7,
2008).
 6

expressly waive their immunity for the purpose of any
proceedings or by the terms of any contract.” 22 U.S.C.
288a(b) (2008). By executive order, President Reagan so
designated the IIC. Exec. Order No. 12,567, 51 Fed. Reg.
35,495 (Oct. 2, 1986). Article VII of the IIC’s charter provides:

Actions may be brought against the Corporation only in
a court of competent jurisdiction in the territories of a
member country in which the Corporation has an office,
has appointed an agent for the purpose of accepting
service or notice of process, or has issued or guaranteed
securities.

IIC Charter art. VII, § 3(a). This waiver provision is nearly
identical to that in the charter of the World Bank and is common
to the charters of other international financial institutions, such
as the Inter-American Development Bank and the International
Finance Corporation.2

In Mendaro v. World Bank, 717 F.2d 610, 617 (D.C. Cir.
1983), the court formulated a test to determine whether such
charter terms waive a specific type of lawsuit: “A nonspecific
waiver such as that [at issue here] should be more broadly
construed when the waiver would arguably enable the
organization to pursue more effectively its institutional goals.”
Put another way, the “[organization]’s immunity should be
construed as not waived unless the particular type of suit would

2
See Articles of Agreement of the International Bank For
Reconstruction and Development, art. VII, § 3, 27 Dec. 1945, 60 Stat.
1440, T.I.A.S. No. 1502, 2 U.N.T.S. 164, 180; Agreement
Establishing the Inter-American Development Bank, art. XI, § 3, Apr.
8, 1959, 10 U.S.T. 3068, 3095; Articles of Agreement of the
International Finance Corporation, art. VI, § 3, Dec. 5, 1955, 7 U.S.T.
2197, T.I.A.S. No. 3620.
 7

further the [organization]’s objectives.” Atkinson v. Inter-Am.
Dev. Bank, 156 F.3d 1335 (D.C. Cir. 1998). Rejecting in
Mendaro the view that the type of waiver in the IIC’s Charter
provides a “blanket waiver of immunity from every type of suit
not expressly prohibited by reservations,” 717 F.2d at 615, the
court observed that if a lawsuit could “significantly hamper the
organization’s functions,” id. at 617, then it is “inherently less
likely to have been intended,” id. So too “when the benefits
accruing to the organization as a result of the waiver would be
substantially outweighed by the burdens caused by judicial
scrutiny of the organization’s discretion to select and administer
its programs, it is logically less probable that the organization
actually intended to waive its immunity.” Id. Contrasting the
employee lawsuits at issue, which could “significantly hamper”
the organization’s functions given its multiple member
countries, with claims related to “enhanc[ing] the marketability
of its securities and the credibility of its activities in the lending
markets,” id. at 618, the court concluded “[p]otential investors
would be much less likely to acquire the Bank’s own securities
if they could not sue the Bank to enforce its liabilities.
Similarly, the commercial reliability of the Bank’s direct loans
and private loan guarantees would be significantly vitiated if its
debtors and beneficiaries were required to accept the Bank’s
obligations without recourse to judicial process.” Id. The court
further concluded “[a] waiver of immunity with respect to the
World Bank’s commercial transactions with the outside world
is . . . evident under Article VII section 3 [of its Charter]. If this
immunity were not waived the Bank would be unable to
purchase office equipment or supplies on anything other than a
cash basis. . . . Such a restriction would unreasonably hobble its
ability to perform the ordinary activities of a financial institution
operating in the commercial marketplace.” Id.

Following the analysis in Mendaro, the court recently
held in Osseiran, 552 F.3d at 840, that the International Finance
 8

Corporation (“IFC”) had waived its immunity from a promissory
estoppel claim concerning the IFC’s alleged representations
during negotiations for a sale of its investments to private
parties. The court again reasoned that “parties may hesitate to
do business with an entity insulated from judicial process;
promises founded on good faith alone are worth less than
obligations enforceable in court.” Id. (citing Atkinson, 156 F.3d
at 1338; Lutcher S.A. Celulose e Papel v. Inter-Am. Dev. Bank,
382 F.2d 454, 460 (D.C. Cir. 1967)). Observing that the IFC
had identified “no unique countervailing costs,” id., the court
concluded the broad terms of the waiver provision in the IFC’s
Charter were controlling and held the IFC was not immune from
a lawsuit for promissory estoppel and breach of confidentiality,
id. at 840-41.

It is a short step from this precedent to conclude that
Vila’s unjust enrichment claim, like Osseiran’s promissory
estoppel claim, is not barred by the IIC’s immunity. Promissory
estoppel provides a party with a remedy to enforce a promise
where the formal requirements of a contract have not been
satisfied, often serving as a substitute for one of these formal
requirements, usually consideration. Bender v. Design Store
Corp., 404 A.2d 194, 196 (D.C. 1979). Therefore, when a
contract fails for lack of consideration, courts will, in some
circumstances, enforce the promise where the promisee has
detrimentally relied. Id. The District of Columbia recognizes
unjust enrichment as a species of quasi contract that imposes,
“in the absence of an actual contract,” “a duty . . . upon one
party to requite another in order to avoid the former’s unjust
enrichment[,] . . . to permit recovery by contractual remedy in
cases where, in fact, there is no contract.” 4934, Inc. v. D.C.
Dep’t of Employment Servs., 605 A.2d 50, 55 (D.C. 1992). Like
promissory estoppel, unjust enrichment provides a party with a
remedy “to unwind entanglements” that may have arisen from
a failed agreement, for instance, “where [the agreement] does
 9

not comply with the writing requirement, where one of the
parties is represented by an unauthorized agent,” 1-1 CORBIN,
CONTRACTS, § 1.20, or “where the agreement is too indefinite
to be enforced,” id. Underscoring the nature of promissory
estoppel and unjust enrichment as remedies for failed
agreements, courts tend not to allow either action to proceed in
the presence of an actual contract between the parties. See, e.g.,
Bloomgarden v. Coyer, 479 F.2d 201, 210 (D.C. Cir. 1973) ;
Walker v. KFC Corp., 728 F.2d 1215, 1220 (9th Cir. 1984);
Bldg. Servs. Co. v. Nat’l R.R. Passenger Corp., 305 F. Supp. 2d
85, 95-96 (D.D.C. 2004) (citing KFC Corp. and collecting
cases). And although unjust enrichment — like promissory
estoppel — is not a contract remedy, in quasi contract it “give[s]
rise to obligations more akin to those stemming from contract
than from tort.” Jordan Keys & Jessamy, LLP v. St. Paul Fire,
870 A.2d 58, 63 (D.C. 2005) (quoting Bradkin v. Leverton, 257
N.E.2d 643, 645 (N.Y. 1970)); see also CORBIN, supra, at §
1.20.

Like Osseiran, Vila seeks a remedy based on the failure
of his alleged agreement with the IIC to meet the requirements
of a formal contract. His claim, no less than Osseiran’s, exists
to prevent the injustice that would result if courts could not
enforce such obligations. And, much as Osseiran’s, Vila’s claim
arises out of commercial activity with the outside world that is
directly related to the IIC’s fulfillment of its chartered
objectives. By assisting IIC officers, at their request, in
identifying participant banks and negotiating with these banks
to provide an interbank loan from the IIC to a private enterprise
in a member country, Vila’s services were targeted at the type
of commercial lending that the IIC Charter describes as part of
the functions that “the Corporation shall undertake” “[i]n order
to accomplish its purpose.” IIC Charter art. I, § 2. The IIC
reaffirms on appeal that independent consultant services provide
important assistance in carrying out its functions. Reply Br. at
 10

6-7, 11. Vila was thus neither volunteering his services nor
providing services unrelated to the IIC’s purpose. As Vila’s
services were related to the furtherance of the IIC’s stated
objectives in the commercial marketplace, Mendaro, 717 F.2d
at 618, the fact that his claim arises from an independent
contractor’s view of the credibility of the IIC’s promises, and
not a third party investor’s view of the credibility of the IIC’s
financial dealings, is a distinction of no significance. The
court’s reasoning in Osseiran about the hesitancy of parties to
do business with an organization insulated from judicial process,
552 F.3d at 840, is no less applicable here.3 The IIC’s attempts
to show to the contrary are unpersuasive.

First, the IIC maintains that allowing Vila’s unjust
enrichment claim to proceed is of no benefit to it because he
was a volunteer seeking compensation for unauthorized
services. To the extent this reaches the merits of Vila’s claim,
it is irrelevant. At this stage of the proceedings. the court takes
the allegations of the complaint as true, Jerome Stevens
Pharmaceuticals, 402 F.3d at 1253-54, and so views Vila as
seeking recovery for authorized services. Further, the IIC’s
position offers no response to Osseiran’s observation that
expectations of fair play are relevant to whether parties would
hesitate to do business with an international organization. 552
F.3d at 840. An independent consultant with or without a
formal contract would be similarly hesitant to do business with

3
We note that although unjust enrichment claims may
arise outside of the context of commercial transactions, because
waiver of immunity for such claims might not provide a similar
corresponding benefit to the organization, our holding does not
address whether the IIC has waived immunity in contexts that
neither involve contract negotiations nor implicate the contract
and quasi-contract principles on which the instant case turns.
 11

the IIC if there would be no reassurance of fair compensation
for requested and received services unjustly retained by the IIC
if their agreement or formal contract failed. The reasonableness
of Vila’s reliance on alleged promises of compensation does not
militate against finding waiver. See Osseiran, 552 F.3d at 840
n.3. To the extent the IIC maintains it would receive no benefit
from engaging an independent contractor outside of a formal
written contractual agreement, the complaint alleges the
services at issue were viewed as being of benefit by IIC
officials. While the IIC offers that it has no need to waive its
immunity to suit for unjust enrichment claims in order to recruit
independent consultants, because it provides them with recourse
for possible grievances by including an arbitration clause in
their contracts, the merits of the IIC’s approach for contracted
consultants is beside the point at this stage of the proceedings.

Second, the IIC maintains that allowing Vila’s unjust
enrichment claim to proceed would deter the IIC from using
independent contractors as consultants because it would no
longer have assurance that the settlement of any disputes would
be handled through arbitration and be limited to the scope of the
contractual arrangement. If the IIC wants assurance that
consultant disputes will be bound by arbitration, however, it can
bar use of independent consultants who have not been engaged
through a formal agreement.

Finally, the IIC maintains that allowing Vila’s unjust
enrichment claim to proceed is tantamount to waiving immunity
for commercial activity claims generally and would be contrary
to Inversora Murten, S.A. v. Energoprojekt-Niskograndnja Co.,
264 Fed. App’x 13 (D.C. Cir. 2008), where the court held that
the International Organizations Immunities Act, despite later
amendments to the Foreign Sovereign Immunities Act,
preserves the immunity of international organizations for
“commercial activity.” However, drawing a distinction between
 12

external activities and the internal management of international
organizations reflects well-established precedent, Mendaro, 717
F.2d at 618, without creating an artificial category of waived
claims. The court still is required to engage in a weighing of the
benefits and costs that a waiver may entail, id. at 617; see
Osseiran, 552 F.3d at 840-41, by focusing on the nature of the
parties’ relationship rather than the nature of the contested
transaction and inquiring as to the reasons why the IIC would
waive immunity for this type of suit.

Notably, the IIC has not identified countervailing costs
that are distinguishable from the costs associated with a claim
for promissory estoppel, see Osseiran, 552 F.3d at 840. Neither
has it identified countervailing costs of the nature discussed in
Mendaro, 717 F.2d at 618, whereby allowing unjust enrichment
claims by independent consultants whose services the IIC
requested and received in connection with its core functions
would open it to “disruptive interference with its [lending]
policies.” Quite the contrary. Allowing such claims would
mitigate possible hesitancies by independent consultants to
negotiating and entering into formal contracts with the IIC by
providing reassurance that if their agreement or formal contract
failed, for whatever reason, they would be fairly compensated
for any benefit they have provided that the IIC has unjustly
retained. The IIC, in turn, also would be afforded flexibility in
using independent consultants, including when time-sensitive
matters require such services before a formal contract can be
executed. These circumstances contrast sharply with the
harassing interference noted in Mendaro of allowing a type of
employee suit where an organization operates in many different
countries. Whether the costs of litigating this type of dispute
would make the IIC hesitant to use independent consultants is
less clear, but the IIC did not posit any such costs. The most it
stated was that “[c]onstruing the Charter provision as a waiver
of immunity would open the door to potentially protracted
 13

litigation,” Appellant’s Br. at 37. This general statement could
be true of any lawsuit and offers no reason why these costs are
not indistinguishable from the costs that would arise in
promissory estoppel litigation, for which the court has found a
waiver of immunity. Nor is it apparent that allowing suits for
unjust enrichment that will enable the IIC to use consultants for
the types of high level banking transactions at issue —
syndicating loans for banks — could be characterized as
imposing the type of disruptive harassment of concern in
Mendaro.

Contrary to our dissenting colleague’s suggestion, the
posited “vagueness” of an unjust enrichment claim does not tilt
the balance against waiver. The premise that unjust enrichment
is “a cause of action so much vaguer and broader than
promissory estoppel,” Dis. Op. at 2, because a plaintiff in an
unjust enrichment action is required to demonstrate that the
recipient’s retention of the benefit would be “unjust,” is flawed.
Both doctrines potentially deal with the vagaries that may exist
in order to remedy the injustice that would result if courts failed
to enforce quasi-contractual obligations. The doctrine of
promissory estoppel specifically requires that courts not give
effect to reliance on a promise “unless necessary to avoid
injustice,” Granfield v. Catholic Univ. of America, 530 F.2d
1035, 1041 (D.C. Cir. 1976), and when evaluating this
“injustice” prong, courts properly consider, among other factors,
“the formality of the promise, whether there is a commercial
setting and its nature, and whether there is unjust enrichment.”
Id. (citing RESTATEMENT (SECOND) OF CONTRACTS § 90, Cmt.
(b)); see, e.g., Oates v. Teamster Affiliates Pension Plan, 482 F.
Supp. 481, 489 (D.D.C. 1979). That courts consider unjust
enrichment when evaluating claims for promissory estoppel
undermines any suggestion that unjust enrichment is, in general,
a vaguer cause of action than promissory estoppel.
 14

Furthermore, the “vagueness” of a cause of action is an
unhelpful paradigm in which to balance costs and benefits. The
crux of the dissent is its assertion that the vaguer a cause of
action, the more expensive it will be to litigate. The dissent
cites no authority for this proposition and it is not “obvious[],”
Dis. Op. at 4, why this proposition would be true. To illustrate,
the dissent emphasizes in discussing why promissory estoppel
is less vague than unjust enrichment that promissory estoppel’s
requisite promise must be a “a promise with definite terms.”
Dis. Op. at 3 (emphases omitted) (quoting In re U.S. Office
Prods. Co. Secs. Lit., 251 F. Supp. 2d 77, 97 (D.D.C. 2003)).
Yet parties will often disagree over what constitutes a “definite
term,” see, e.g., Granfield, 530 F.2d at 1040, just as they can
disagree over any subjective element of a cause of action. In a
given case, such a disagreement may result in more protracted
litigation than a disagreement over whether retention of a
benefit is “unjust”; in another case, it may not. Either way, the
“vagueness” of the cause of action provides little assistance in
assessing beforehand whether litigation for this type of suit
would be protracted, especially given that the cost of litigation
is more directly affected by such factors as the number of
relevant documents that the case is likely to produce, the
contentiousness of the parties, and the complexity of particular
facts, all of which will vary from case to case and none of which
turns on the vagueness of the cause of action.4

4
The dissent is mistaken when it suggests the court is
dismissing, for determinations of immunity, the general costs of
litigation, Dis. Op. at 6-7. Atkinson, cited by the dissent,
described the costs of litigating wage garnishment suits, noting
that the court was “skeptical” that such costs would be
“minimal.” 156 F.3d at 1339. But because the court in that case
determined that garnishment suits would provide “no
conceivable benefit” – indeed would constitute a detriment in
attracting employees – the court had no need to balance those
 15

III.

The IIC’s defense that Vila’s unjust enrichment suit fails
because it was untimely filed and therefore must be dismissed
for failure to state a claim pursuant to Rule 12(b)(6) is logically
antecedent to the merits of Vila’s claim. Killburn v. Socialist
People’s Libyan Arab Jamahiriya, 376 F.3d 1123, 1134 (D.C.
Cir. 2004); see also Rendall-Speranza v. Nassim, 107 F.3d 913,
917 (D.C. Cir. 1997). As a matter of judicial efficiency, we
exercise pendant jurisdiction over this threshold issue, see
Griggs v. WMATA, 232 F.3d 917, 919 n.2 (D.C. Cir. 2000);
Gilda-Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675, 678,

costs and thus gave no guidance as to what kind of benefit
would outweigh them. And, in any event, the litigation costs in
Atkinson were costs that “a stranger to the proceedings in which
a judgment has been obtained,” who was thus an “innocent third
party,” would have to bear to protect his relations with third
parties, id. (citing authorities on the burdens of garnishment
proceedings). Thus, conceivably a greater benefit would be
required to outweigh them than to outweigh costs in a suit in
which the organization was a direct participant, if for no other
reason than that an organization’s exposure to suits stemming
entirely from the independent actions of others is completely
beyond its own control. But however litigation costs might
factor into the balancing test in another case, the IIC has not
posited litigation costs distinguishable from those involved in
promissory estoppel suits for which the court found a waiver of
immunity in Osseiran. See IIC Rule 28(j) Letter, Feb. 10, 2009;
Oral Arg. at 14:20-15:48 (attempting to distinguish Osseiran
based not on costs, but rather on the lesser benefit that would
inure to the IIC as a result of exposure to this type of suit). Just
as those costs did not outweigh the benefit to the organization in
Osseiran, they do not outweigh the benefit to the IIC here.
 16

679 (D.C. Cir. 1996) (per curiam), and affirm the denial of the
motion to dismiss.

Under District of Columbia law, which applies here,
unjust enrichment claims are subject to a three year statute of
limitations. See News World Commc’ns, Inc. v. Thompsen, 878
A.2d 1218, 1221 (D.C. 2005). Thus, if Vila’s claim accrued
prior to October 26, 2003, it would be time barred. Vila alleges
that his last service was performed, his request for
compensation was refused, and the benefit of his service had
been conferred at some date later than this date.

The D.C. Court of Appeals held in Thompsen that the
statute of limitations begins to run “when the plaintiff’s last
service has been rendered and compensation has been
wrongfully withheld.” Id. at 1219. The court relied on Zic v.
Italian Gov’t Travel Office, 149 F. Supp. 2d 473 (N.D. Ill.
2001), noting that Zic emphasized that “‘the essence of a
quantum meruit claim . . . is not the plaintiff’s expectancy of
payment, but the unjust enrichment of the defendant,’ and held
that the defendant was unjustly enriched when the services were
rendered and when payment was refused.” Thompsen, 878 A.2d
at 1223 (quoting Zic, 149 F. Supp. at 476). In Thompsen the
court emphasized that “[a] claim for unjust enrichment only
accrues . . . when the enrichment becomes unjust; the statute of
limitations starts to run upon the occurrence of the wrongful act
giving rise to a duty of restitution.” Id. (quotations omitted).
Applying this test to the plaintiff, the court focused on the date
when her last service had been performed, compensation had
been refused, and the benefit of her service had been conferred.
Id. at 1225. Although the court cited Baer v. Chase, 392 F.3d
609, 622-23 (3rd Cir. 2004), which applied a last-rendition test,
that case did not involve a communicated refusal to pay, a
question reserved in Thompsen, 878 A.2d at 1225 n.7.
 17

Thus, contrary to the IIC’s contention, District of
Columbia law does not establish a last rendition of services test
for the accrual of an unjust enrichment claim, and its reliance on
August 2003 as the last month in which Vila provided services
is misplaced. The IIC’s alternative contention that Vila’s claim
accrued prior to October 26th, 2003, pointing to August 4, 2003,
the date on which Vila alleges that Regional Head Moscoso
acknowledged his work but refused to compensate it, fares no
better.

The limitations period on an unjust enrichment claim
does not begin until “enrichment becomes unjust,” Thompsen,
878 A.2d at 1223, which is a question of fact for the district
court to resolve, Diamond v. Davis, 680 A.2d 364, 370 (D.C.
1996). In resolving the question at this stage of the
proceedings, the court reviews the district court’s order denying
dismissal on limitations grounds de novo, accepting the
allegations in the complaint as true, Browning, 292 F.3d at 242,
and granting Vila “the benefit of all inferences that can be
derived from the facts alleged,” Kowal v. MCI Commc’ns Corp.,
16 F.3d 1271, 1276 (D.C. Cir. 1994). Contrary to the dissent,
Dis. Op. at 10-14, although the complaint does state that the
August 4th email from Moscoso “acknowledged his work but
refused to compensate it,” Compl. ¶ 14, the district court could
find, upon granting Vila the benefit of all reasonable inferences
arising from the allegations in his complaint, that enrichment
became unjust only on November 4. On that date Alejandra
Vallejo, the Coordinator of Institutional Affairs in the Personnel
and Administration Office of the IIC, advised Vila, after he had
submitted an invoice to the IIC’s General Manager Jacques
Rogozinski, that he would not be compensated for his services
in the absence of a formal contract. Compl. ¶ 5. That email
rejected Vila’s first request for a specific amount of
compensation for the various services at issue, after submission
of an invoice to a top official and by the office that handles such
 18

personnel-related matters. A finding that this email, and not
Moscoso’s August 4 email, started the limitations period is
further supported by Vila’s allegations that he worked on four
different projects in 2003, only two of which involved Moscoso
(as indicated by the emails attached to his complaint). Vila’s
submission of an invoice to someone at the top of the chain of
command, therefore, was the first point in time the IIC would
have known the totality of the work – and its costs – that it was
being asked to pay; its subsequent refusal was the first
unequivocal refusal for all his work that year.

The dissent incorrectly suggests this case is
indistinguishable from Thompsen, Dis Op. at 14-15, which held
that the plaintiff’s cause of action had accrued no later than the
date that the advertising director of The Washington Times
advised her she would not be compensated for her work. The
facts here, however, are different in material ways. First, Vila
worked on four projects for several persons within the IIC,
while Thompsen presented only one proposal to the newspaper
and her relevant contact was the newspaper’s advertising
director, who conveyed to her the newspaper’s decisions about
her project. The district court could reason, therefore, that a
refusal to compensate by any one of the persons for whom Vila
worked would be less final than the refusal that Thompsen
received from the advertising director. Second, Vila’s
relationship with the IIC was different than Thompsen’s
relationship with the newspaper. Although Thompsen could
also be described as an independent contractor, Vila had a
longer history with the IIC, working on various projects with
the IIC for three years prior to 2003, and alleged the services for
which he now seeks compensation were requested by several
persons at the IIC, unlike the one-on-one relationship in
Thompsen where the advertising director was Thompsen’s point
of contact on her project. When Vila exchanged emails with
Moscoso and Reed concerning compensation, therefore, he
 19

might reasonably have anticipated that he could go to their
superior, General Manager Rogozinski, if his requests for
compensation were rebuffed and that Rogozinski would make
the final decision, either directly or through appropriate
channels. The emails attached to Vila’s complaint indicate this
is what happened, as Rogozinski forwarded Vila’s invoice to the
Personnel and Administration Office, which then informed Vila
that based on the IIC’s policies it would not be able to
compensate him for his services.

This approach does not, as the dissent suggests, create
a new rule that limitations periods can be extended with
“repeated appeals,” Dis. Op. at 16. Rather, the limitations
period on an unjust enrichment claim does not begin until
“enrichment becomes unjust.” Thompsen, 878 A.2d at 1223. In
resolving this fact-bound question, the district court could find
the operative accrual date to be the date of rejection of a
contractor’s bill for services, especially when several IIC
employees had requested Vila’s services and the presentment
and rejection of the invoice was not so far in time from the
rendition of the services. Our dissenting colleague would parse
individual allegations that support a November 4 accrual date,
rather than consider the allegations in their totality, see Dis. Op.
at 14-16, and tweak Vila’s allegations and the material
distinctions with Thompsen, see, e.g., Dis. Op. at 14, while
overlooking that at this stage of the proceedings Vila is entitled
to all favorable inferences in determining when the enrichment
became unjust. Viewed in their totality, and according Vila all
favorable inferences, Vila’s allegations “plausibly give rise to
an entitlement to relief,” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1950 (2009), and we conclude that the district court properly
declined to dismiss the complaint as untimely pursuant to Rule
12(b)(6). On remand the IIC can present evidence to support its
limitations defense that August 4, 2003 was the actual date of
refusal, see Diamond v. Davis, 680 A.2d at 370.
 20

Accordingly, we affirm the order denying the IIC’s
motion to dismiss Vila’s unjust enrichment claim pursuant to
Rules 12(b)(1) and 12(b)(6), and we remand the case to the
district court.
 WILLIAMS, Senior Circuit Judge, dissenting: I
respectfully dissent from the court’s rejection of two defenses
posed by Inter-American Investment Corporation (“IIC”): its
claim of immunity to plaintiff’s unjust enrichment claim and
its invocation of the statute of limitations.

The immunity claim turns on the application of Article
VII, § 3(a) of IIC’s Charter, see Maj. Op. at 6, under the
International Organizations Immunities Act, 22 U.S.C.
§ 288a-k. Although the clause might seem to be either a
venue provision or an across-the-board waiver, we have, in
Mendaro v. World Bank, 717 F.2d 610 (D.C. Cir. 1983), and
later cases, construed such wording as waiving immunity only
insofar as “necessary to enable the [organization] to fulfill its
functions.” Id. at 617. We explained in Atkinson v. Inter-
American Development Bank, 156 F.3d 1335 (D.C. Cir.
1998), that Mendaro created a “default rule” under which the
organization’s “immunity should be construed as not waived
unless the particular type of suit would further the
[organization’s] objectives.” Id. at 1338. We explicitly
rejected plaintiff’s argument that the organization’s
“immunity should be construed as waived unless the particular
type of suit would impair [its] objectives.” Id.

Applying these concepts, in Mendaro we found no waiver
for a claim under Title VII of the Civil Rights Act of 1964 by
a member of the organization’s administrative staff. Any
benefits to the defendant from being subject to such suits, we
said, would be “outweighed by the burdens caused by judicial
scrutiny of the organization’s discretion to select and
administer its programs.” Mendaro, 717 F.2d at 617. By
contrast, we thought the immunity clearly covered suits
involving the Bank’s securities and its guarantees of others’
securities, saying that the guarantees would mean little, and
the Bank’s securities would be unappealing to investors,
 2

unless the Bank’s obligations were enforceable in court. Id. at
618.

Our analysis, then, has been to consider whether the
defendant organization would, ex ante, have regarded its
subjection to the sort of suit in question as likely to provide
the organization a net benefit. As Atkinson made clear, ties go
to the organization.

After the briefing in this case we found in Osseiran v.
International Finance Corporation, 552 F.3d 836 (D.C. Cir.
2009), that the defendant should be deemed to have waived
immunity to a promissory estoppel claim based on alleged
promises made during negotiations over the entity’s sale of
securities to a private party. Noting that promises based on
good faith alone are worth less than ones enforceable in court,
we decided that a waiver of immunity “might help attract
prospective investors by reinforcing expectations of fair play.”
Id. at 840.

The court here extends Osseiran to unjust enrichment
claims arising in the context of commercial transactions, at
least if the case involves “contract negotiations [or]
implicate[s] the contract and quasi-contract principles on
which the instant case turns.” Maj. Op. at 10 n.3. Because
unjust enrichment is a cause of action so much vaguer and
broader than promissory estoppel, I believe the plausible
benefits are thinner and the likely costs fatter here than in
Osseiran—enough so that the Mendaro balance tilts against
waiver.

A successful promissory estoppel claim requires “a
promise which reasonably leads the promisee to rely on it to
his detriment, with injustice otherwise not being avoidable.”
N. Litterio & Co. v. Glassman Const. Co., 319 F.2d 736, 739
(D.C. Cir. 1963) (emphasis added). Though the promise
 3

required for a promissory estoppel claim “need not be as
specific and definite as a contract, it must still be a promise
with definite terms.” In re U.S. Office Products Co. Securities
Lit., 251 F. Supp. 2d 77, 97 (D.D.C. 2003) (emphases added)
(citing Bender v. Design Store Corp., 404 A.2d 194, 196
(D.C. 1979)). Unjust enrichment, by contrast, requires only
that: “(1) the plaintiff conferred a benefit on the defendant; (2)
the defendant retains the benefit; and (3) under the
circumstances the defendant’s retention of the benefit is
unjust.” News World Communications v. Thompsen, 878
A.2d 1218, 1222 (D.C. 2005) (citing 4934, Inc. v. D.C. Dept.
of Employment Servs, 605 A.2d 50, 55 (D.C. 1992)). Thus
unjust enrichment dispenses with the need for a definite
promise, and requires in its place only a finding that the
recipient’s retention of the benefit would be “unjust,” as
determined by some fact-finder. The doctrine appears as
elastic as the proverbial chancellor’s foot.

While an organization’s exposure to promissory estoppel
claims may, at the margin, entice into negotiations people who
attach value to being able to reasonably rely on definite
promises by an organization’s agents, it is uncertain just who
might be heartened by unjust enrichment doctrine’s vague
assurances. Although the majority seeks to nudge this case
toward Osseiran by suggesting that it involves “the credibility
of the IIC’s promises,” Maj. Op. at 10, and thus perhaps the
comparatively hard-edged quality of promissory estoppel, in
fact Vila’s complaint makes no assertion whatever of
promises by IIC—indeed, he never mentions the term. Quite
rightly: unjust enrichment requires no evidence of promise.
See Jordan Keys & Jessamy, LLP v. St. Paul Fire & Marine
Ins., 870 A.2d 58, 64 (explaining that unjust enrichment is not
based on “a promise or agreement or intention of the person
sought to be charged,” but on “equity and good conscience”
(quoting Miller v. Schloss, 113 N.E. 337, 339 (N.Y. 1916))).
 4

In finding the benefit from exposure to unjust enrichment
suits equal to that of exposure to promissory estoppel claims,
the majority asserts that independent consultants would be
“similarly hesitant to do business” absent the availability of
unjust enrichment claims. Maj. Op. at 11 (emphasis added).
But promissory estoppel enables one to reasonably rely on
actual, definite promises; unjust enrichment protects the party
only in scenarios where his sense of injustice happens to be
shared by a jury. Apart from the likely difference in number
of persons whose hesitancy may be relieved, promissory
estoppel protection seems likely to draw in a more careful,
businesslike set of counterparties.

On the cost side, unjust enrichment’s malleable nature
means that being subject to such suits will expose IIC both to
a much broader class of cases, and ones where the controlling
issues are less sharply defined. The most obvious costs, of
course, are the expenses of litigation itself, both out-of-pocket
costs and the inevitable diversion of management focus. In
Atkinson, though we didn’t need to “consider the cost side of
the balance,” 156 F.3d at 1339, we expressly cited the
“inconvenience, hazards, or expense of extended litigation” as
a reason to doubt that the costs of a waiver of immunity in that
case were minimal. Id. As the murkiness of the cause of
action expands, so too, obviously, do the “inconvenience,
hazards, or expense” of litigation.”

The majority suggests that because courts also “consider
unjust enrichment when evaluating claims for promissory
estoppel,” promissory estoppel must be every bit as vague as
unjust enrichment. Maj. Op. at 13. But in the presence of
promissory estoppel’s requirement of a definite promise and
reasonably foreseeable reliance, “unjust enrichment” seems
unlikely to do much work in promissory estoppel cases; juries
who find those two discrete points seem unlikely to worry
much over elusive concepts of “injustice.”
 5

Without some sort of empirical work it may be hard to
calculate the exact effect of unjust enrichment’s vagueness.
At a minimum, however, it would seem to increase the
variance in outcomes, i.e., to quote Atkinson’s term, the
“hazards” of litigation. For risk-averse litigants, variance is a
material cost, even if plaintiffs win the same proportion of
litigated unjust enrichment cases and enjoy the same average
recovery as in promissory estoppel ones.

Besides, the majority’s claim that promissory estoppel
requires a consideration of unjust enrichment in addition to its
other elements entirely confirms the point that unjust
enrichment claims reach a broader class of cases. That is
why, in many cases, an unjust enrichment claim will survive
after the court has thrown out promissory estoppel—even in
the context of the commercial negotiations to which the
majority tries to restrict its holding. See, e.g., Trianco, LLC v.
IBM, 271 Fed. Appx. 198, 203, 205 (3d Cir. 2008) (allowing
an unjust enrichment claim to proceed, but dismissing a
promissory estoppel claim because there was no “clear and
unambiguous promise” (internal quotation marks omitted));
Lindquist Ford, Inc. v. Middleton Motors, Inc., 2007 WL
3287848, at *8, *11 (W.D. Wis.), rev’d on other grounds, 557
F.3d 469 (7th Cir. 2009) (denying a motion for “summary
judgment on plaintiff’s unjust enrichment claim,” but
dismissing the plaintiff’s promissory estoppel claim because
“plaintiffs have failed to adduce any evidence that defendant
ever promised . . . .”). Thus, the majority’s own reasoning
illustrates why a waiver of unjust enrichment claims—
untethered to a need for proof of a definite promise and
reasonable reliance—exposes the IIC to a wider range of cases
that would be costly to litigate.

Of course the majority is correct in saying that factors
other than a cause of action’s protean character may
complicate a case and generate high litigation costs, such as
 6

the volume of documents and the contentiousness of the
parties. Maj. Op. at 14. But until the majority’s decision
here, we have measured costs and benefits in terms of the
cause of action and the type of plaintiff, not specifics of the
case, presumably in order to achieve some measure of
predictability. If I understand the majority correctly, its
thought is that because there are cost factors that “vary from
case to case,” we cannot meaningfully estimate the cost
ranges associated with a particular cause of action. That
seems a non sequitur.

In a similar vein, the court says that even though Atkinson
clearly considered litigation expenses on the cost side of the
equation, we cannot weigh them in this case because the
Atkinson court gave “no guidance as to what kind of benefit
would outweigh them.” Maj. Op. at 15 n.4. To be sure,
Atkinson did not need to weigh litigation costs; it found that
subjection to wage garnishment proceedings would provide
“no conceivable benefit” and ties go to the organization
claiming immunity. Atkinson, 156 F.3d at 1338. But the fact
that the Atkinson court did not explain how we are to weigh
litigation costs cannot absolve us of the need to do so today.

The majority dismisses the IIC’s arguments regarding
litigation expenses on several additional grounds. First,
though it recognizes that the IIC pointed to litigation costs,
see Maj. Op. at 12-13, 15 n.4, it appears to chide IIC for
failing to differentiate the litigation costs likely to be
associated with unjust enrichment claims from those
associated with promissory estoppel suits. Maj. Op. at 13, 15
n.4. But, as I mentioned before, Osseiran was decided only
after the close of briefing in this case, and there we appeared
to have no need to assess litigation costs at all; the defendant’s
theory was apparently little more than that it was right on the
merits. Moreover, as we are basically comparing causes of
 7

action, we should be perfectly able to do the comparison on
our own.

The majority also seems to dismiss the IIC’s arguments
regarding litigation costs on the grounds that these costs
“could be true of any lawsuit.” Maj. Op. at 13. Of course, if
litigation costs alone were enough to overcome all potential
benefits from a waiver of immunity, then courts could never
find a waiver. But under Mendaro and Atkinson we are
obliged to weigh the reality of litigation costs, which are after
all typically substantial, against the hypothetical benefit of the
institution’s being subject to suit. Otherwise we jettison
Atkinson’s understanding that Mendaro created a “default
rule” under which the organization’s “immunity should be
construed as not waived unless the particular type of suit
would further the [organization’s] objectives.” 156 F.3d at
1338.

And, though acknowledging that Atkinson makes the
relevance of litigation costs plain, the court suggests that
because that case involved costs from an organization’s
indirect participation in a wage garnishment proceeding, “a
greater benefit would be required to outweigh them.” Maj.
Op. at 15 n.4. I do not understand the relevance of this point
(let alone its justification), for in the end the majority either
believes IIC’s litigation costs should be disregarded altogether
(because they are “true of any lawsuit”), or simply rests on its
conclusion that they are likely to be no greater than in
promissory estoppel cases.

Apart from litigation costs, the IIC identifies an added
element on the “cost” side of the balance, saying that without
the “assurance” of arbitration, for which it provides when
engaging independent consultants, see Agreement 2002, Joint
Appendix (“J.A.”) 37, it would be “deterred from seeking to
use independent contractors as consultants.” Appellant’s Br.
 8

36. Although the utility of such consultants to IIC is
undisputed (indeed, is the basis for the majority finding of a
“benefit”), the court’s holding plainly makes its use of them
more expensive. Any initial employee contact with a
potential consultant will carry a risk of litigation, not to
mention deny IIC the benefit of the arbitration provision that
it insists on in its contracts. The court notes the impact, but
offers IIC a strange solution. If IIC truly values arbitration, it
says, “it can bar use of independent consultants who have not
been engaged through a formal agreement.” Maj. Op. at 11.
The court does not explain just how such an internal IIC
policy could prevent third parties from bringing unjust
enrichment suits. Perhaps the panel means that by living a
completely virtuous life IIC can avoid litigation. But apart
from the naiveté of the implied assumption about the filing of
lawsuits, the argument has no place in our precedents, which
have always focused on the costs that would come from
particular types of claims, and has never inquired into whether
or not an organization could prevent others from bringing
such claims in the first instance. Indeed, this new factor
sounds very like the merits, which we so roundly (and rightly)
ruled off-limits in Osseiran. 552 F.3d at 840. Finally,
however effective a policy aimed at reducing the risk of this
sort of litigation might prove, it would itself come at a cost—
that of increased monitoring of employees’ compliance. The
court’s ruling generates these costs all in order to give IIC the
“benefit” of attracting consultants who do not bother to clarify
their contractual status before proceeding to work.

Allowance of unjust enrichment claims thus generates
greater costs and fewer benefits than the promissory estoppel
claims permitted in Osseiran. I see no basis for concluding
that a waiver of immunity is “necessary to enable [IIC] to
fulfill its functions.” Mendaro, 717 F.2d at 617.
 9

* * *

As to Part III of the majority opinion, concerning IIC’s
statute of limitations defense, I agree with the majority that we
should exercise pendant jurisdiction over the statute of
limitations issue. See Maj. Op. at 15. I also agree that under
District of Columbia law the statute is triggered not solely by
the plaintiff’s last rendition of services, but by defendant’s
refusal of compensation for those services. See Maj. Op. at
17. Thus, if prior to October 26, 2003, Vila’s “last service has
been rendered and compensation has been wrongfully
withheld,” News World Communications Inc. v. Thompsen,
878 A.2d 1218, 1219 (D.C. 2005) (emphasis added), Vila’s
claim is barred. But I disagree with the court’s conclusion
that Vila’s suit is not barred.

Vila argues that we should review the district court’s
determination in his favor under a clearly erroneous standard,
see Appellee’s Br. 15-16, but this is clearly wrong. The
district court correctly observed that “[o]n a motion to dismiss
for failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), [the
court] must construe the allegations and facts in the complaint
in the light most favorable to the plaintiff. ” Vila v. Inter-
American Investment Corp., 536 F. Supp. 2d 41, 45-46
(D.D.C. 2008) (“District Court Opinion”). We review such
rulings de novo. Kaemmerling v. Lappin, 553 F.3d 669, 676
(D.C. Cir. 2008); see also, Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) (conducting a de novo review of
plaintiffs’ 12(b)(6) motion). The panel today grants that we
must apply the traditional de novo standard of review to
Vila’s 12(b)(6) claim and that the determination of when
Vila’s enrichment claim became unjust is based upon
“granting Vila the benefit of all reasonable inferences.” Maj.
Op. at 17 (emphasis added). Yet the court also says that when
enrichment becomes unjust “is a question of fact for the
 10

district court to resolve.” Id. at 17. Insofar as this may imply
that we should adopt the clearly erroneous standard of review
urged by Vila, it runs directly contrary to our precedent and
the Supreme Court’s practice. Hence, I will proceed under the
traditional de novo standard: if Vila’s claimed date of the first
legally relevant refusal is not plausibly supported by “the facts
alleged” and “the allegations in the complaint,” we must
reverse. Id.

Vila’s complaint alleges that his “[s]ervices were
performed . . . and accepted by Defendant’s senior officers
and senior management from January to August 2003.”
Compl. 11. Hence, there can be no doubt that Vila’s “last
service ha[d] been rendered” prior to October 26, 2003. The
only remaining issue then is whether IIC had refused to
compensate Vila before that date.

As the court points out, Vila alleges at the outset of his
complaint that he was refused payment on November 4, 2003.
Maj. Op. at 17. The IIC does not contest that a refusal took
place on November 4, 2003. What the IIC does contest,
however, is Vila’s inference that the November 4, 2003, e-
mail was the first legally relevant refusal to take place. And
while the pleading standards required by Rule 12(b)(6) are
extremely liberal, “the court need not accept inferences drawn
by plaintiffs if such inferences are unsupported by the facts set
out in the complaint[, nor must it] accept legal conclusions
cast in the form of factual allegations.” Kowal v. MCI
Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)
(emphases added).

Vila’s complaint itself specifically alleges facts and
inferences contradicting his claim that the first legally relevant
refusal occurred on November 4, 2003. “On August 4, 2003,
in an e-mail replying to Plaintiff’s further compensation
claims . . . [Victor] Moscoso acknowledged Plaintiff’s work,
 11

but refused to compensate it.” Compl. ¶ 14 (emphasis added).
Victor Moscoso was the IIC Regional Head with whom Vila
had discussed his compensation expectations for all of his
services and who, according to Villa, had acknowledged
Vila’s compensation expectation on IIC’s behalf on a prior
occasion. See Compl. ¶ 11-13. But on August 4, 2003, again
in Vila’s own words, “Mr. Moscoso attempted to justify the
refusal to pay for Plaintiff’s Services and suggested entirely
new terms for future work by Plaintiff.” Compl. ¶ 14
(emphases added). Thus Vila clearly characterizes his e-mail
contacts with Victor Moscoso as establishing that by August
4, 2003 Vila had provided his work to IIC and that IIC
“refused” payment for that work, as opposed to “future work.”
And since an unjust enrichment claim accrues “when its
elements are present, so that the plaintiff could maintain a
successful suit,” Thompsen, 878 A.2d at 1222, Vila’s own
words establish that his claim had accrued before October 26,
2003.

Vila’s assertions about the Moscoso correspondence are
enough to show that IIC should prevail, but his complaint
contains further allegations contradicting his view that
payment was first refused on November 4, 2003. “Following
Mr. Moscoso’s refusal, Plaintiff appealed to Steven Reed,
Defendant’s Deputy General Manager, in an attempt to obtain
compensation.” Compl. ¶ 14 (emphases added). Of course,
Vila’s unilateral decision to appeal Moscoso’s “refusal” could
not extend the limitations period, regardless of how Reed
responded: “Otherwise, a party could indefinitely extend the
accrual date for the statute of limitations by simply making
periodic requests of another party to enter an agreement.”
GIV, LLC v. Int’l Bus. Machines Corp., 2007 WL 1231443, at
*3 (E.D. Va. Apr. 24, 2007). See also Del. State College v.
Ricks, 449 U.S. 250, 261 n. 15 (1980) (“Mere requests to
reconsider . . . cannot extend the limitations period[]”). In any
event, Reed, like Moscoso before him, “acknowledged
 12

Plaintiff’s considerable amount of work, but refused to pay for
Plaintiff’s Services, alleging . . . a different understanding of
the agreement between Plaintiff and Defendant and the
absence of a written contract.” Compl. ¶ 15 (emphasis added)
(internal quotation marks omitted). Thus, according to Vila’s
allegations, IIC twice refused to pay him before October 26,
2003.

The district court declined to give these refusals legal
effect, saying that “none of the emails that predate the
November 4, 2003 email . . . were sufficiently unequivocal to
cause the unjust enrichment claim to accrue.” District Court
Opinion, 536 F. Supp. 2d at 51. Specifically, the district
court pointed to the fact that in both an August 28, 2003 e-
mail and a September 12, 2003 e-mail Reed had alluded to the
possibility that Vila could receive a “success fee for some of
his work.” Id. This argument fails for numerous reasons.
First and foremost, under Vila’s own characterization of the
prior correspondence, Moscoso “refused to compensate”
Vila’s work, and after “attempt[ing] to justify the refusal . . .
suggested entirely new terms for future work.” Compl. ¶ 14
(emphasis added). Rule 12(b)(6) of course requires us to draw
all reasonable inferences in favor of the plaintiff, but it surely
doesn’t require us to disregard factual allegations that flatly
undermine a complaint.

Second, the district court was mistaken in its theory that
Reed’s mention of a success fee somehow qualified the
refusal. To be sure, Reed said in an August 28, 2003 e-mail
that IIC “expect[ed] to sign the Safra agreement [on which
Vila had worked] soon,” and that he would have a contract on
the Safra matter prepared “so that when Safra instructs us to
go to market, an agreement with you will be in place.” E-mail
262, J.A. 167. This needed confirmation from another IIC
official, he said, but “I don’t see a problem. You will be
compensated based on a success fee.” Id. But the possibility
 13

of some future compensation, which the district court
recognized would only have been for “some work” Vila
completed, District Court Opinion, 536 F. Supp. 2d at 52,
could not toll the statute of limitations because there is no
reasonable basis for thinking that the success fee operated as
any sort of substitute for the compensation Vila requested.

Indeed, Vila’s complaint treats Reed’s position as a
refusal and rejects the notion of a success fee as a basis for
payment. Vila points out “that there was no reference to
compensation on a success fee basis in any of the numerous e-
mails received from [IIC] senior officers, or in any other
documentation exchanged between Defendant and Plaintiff
from January to August 2003.” Compl. ¶ 17, J.A. 18.
Consequently, Vila “reiterated his compensation claim” to
Reed, which Reed again rejected, and Vila then submitted an
invoice for $ 89,909.00. Compl. ¶¶ 17-18 (emphasis added).
As the district court correctly found, this invoice amount,
which Vila now requests as damages, “is based on
calculations using a daily consulting fee,” not on a success fee
calculation. District Court Opinion, 536 F. Supp. 2d at 50.
As Reed stated after Vila reiterated his claim for
compensation following Reed’s initial rejection, “I don’t
understand how you expected compensation on any basis
other than a success fee.” E-mail 264, J.A. 168. Given that
Vila sought compensation for all of his work, on an entirely
different mode of compensation, we should interpret Reed’s e-
mail as Vila did—as a clear refusal of the compensation he
requested and which he now requests in the current suit.
Accord, Phillips v. Scott, 446 F. Supp. 2d 70, 82 (D. Conn.
2006) (unjust enrichment action accrued when mother refused
to turn over proceeds of a property sale to son, even though
mother mentioned “she might, at some unspecified time in the
future, pay him some small portion of those proceeds”).
 14

Oddly enough, though the district court regarded IIC’s
November 4, 2003 e-mail as an unequivocal refusal on the
theory that it did not include the possibility of “some
compensation,” District Court Opinion, 536 F. Supp. 2d at 52,
that e-mail in fact did not rule out the possibility of a success
fee. According to the complaint, once Vila “reiterate[d]” his
invoice based on a daily consulting fee, IIC refused the
requested payment on precisely the same grounds as Reed’s
earlier e-mails—“the absence of a contract under ‘defined
terms and conditions.’” Compl. ¶ 19. There is simply no
meaningful differentiation between this e-mail and any of its
predecessors.

The court today crafts an entirely new theory for the
accrual of Vila’s unjust enrichment claim—one not found in
Vila’s briefs, the district court opinion, or any relevant case
law. The court seems to base its conclusion that “the district
court could find . . . that enrichment became unjust only on
November 4,” on three arguments, none of which is
persuasive. Maj. Op. at 17. First, the court claims that this
was the first time Vila had submitted an invoice for a “specific
amount of compensation.” Id. at 17. The prior e-mails to
Moscoso and Reed, however, rejected the notion of any
payment on Vila’s requested basis. Thus, whether Vila later
asked for $1 or $1,000,000 was irrelevant, as he was aware he
would not be getting any money without a written contract.
Additionally, in News World Communications, Inc. v.
Thompsen, 878 A. 2d 1218 (D.C. 2005), which governs here,
the court found the plaintiff was refused payment not when
she submitted an invoice, but when she received a phone call
simply stating that “she would not be paid for her ideas or for
the work she had done.” Id. at 1220. Thompsen explicitly
held that it was enough that this phone call “informed [the
plaintiff] that she would not be compensated.” Id. at 1222.
Thus, there is simply no reason to think an invoice for a
specific amount is necessary to start the statute running.
 15

Second, the court argues that the e-mails to Moscoso did
not cause the statute of limitations to accrue because only two
of Vila’s projects involved Moscoso, and hence Moscoso
would not have “known the totality of the work,” as the
Personnel Office did. Maj. Op. at 18. The court argues that
this makes the case distinguishable from Thompsen because
there the plaintiff had a “one-on-one” relationship with the
advertising director, who worked with the plaintiff on all the
work she performed. Id. But Vila explicitly alleges that he
spoke with Moscoso at the outset about compensation for the
entirety of his services. See Compl. ¶ 13 (using the defined
term “Services,” which referred to all services, when
explaining that “Plaintiff’s compensation expectation for the
Services was discussed with Victor Moscoso” ). There is also
no reason to believe the rejection from Reed, Moscoso’s
superior, was for fewer than all the projects. Additionally, in
Thompsen the plaintiff had contacts with “several other
representatives” besides the advertising director. Thompsen,
878 F.2d at 1220. The advertising director in Thompsen was
the “relevant contact,” Maj. Op. at 18, only because he was
the person who had confirmed the plaintiff’s compensation
expectations on a prior occasion, just as Vila alleges Moscoso
had done. And the refusal in Thompsen did not come from the
personnel department. The court offers no explanation why
an e-mail from a personnel department official should be
regarded as anything other than a reiteration of the refusal
already communicated by a high-level official of the IIC, the
Deputy General Manager, Steven Reed.

Third and finally, the court claims that because Vila
worked for several people he could “have anticipated that he
could go to their superior, General Manager Rogozinski, if his
request for compensation were rebuffed”; the court claims the
e-mails “indicate this is what happened.” Maj. Op. at 19. Not
only does this argument seem entirely inconsistent with the
precedent limiting a plaintiff’s ability to extend limitations
 16

deadlines with repeated appeals, but, as already mentioned,
Vila had previously discussed his compensation expectation
for all services with both Moscoso and Reed (only one level
below Rogozinski in the corporate hierarchy). Moreover, the
e-mails hardly reveal the “appeals” process that the court
dreams up. Rogozinski’s only response to Vila asked Vila not
to contact him any more, but instead to pass his written
consultant agreements on to the Personnel Office. E-mail
268, J.A. 175. Of course, Vila did not have such written
agreements and already knew from his correspondence with
Steven Reed that without such agreements he would not be
paid, so it was hardly surprising when the personnel
department then reiterated the exact same denial that Reed had
already communicated.

The court’s readiness to treat any rejection as non-final
has puzzling implications. If the refusal by the Deputy
General Manager (Reed) was not enough because there was
someone higher up in the chain, then it is entirely unclear why
that of Rogozinski would start the statute of limitations
running. After all, even after hearing from the Personnel
Department, Vila “reiterated his claim” to the IIC’s President
over the course of the next nine months. Compl. ¶¶ 20-21.
Since a claim for unjust enrichment accrues only when all of
its elements are present, the implication of the majority’s
position is that Vila could not have brought a claim after the
Moscoso or Reed e-mails refusing to pay him the very
compensation he now claims he is owed, and perhaps cannot
do so now—unless IIC’s President has actually rejected the
claim.

The court faults all of the above arguments on the
grounds that I “parse” Vila’s allegations instead of
considering them in their “totality” and giving Vila the benefit
of all favorable inferences. Maj Op. at 19. But one allegation
with zero relevance, added to a dozen similar allegations, still
 17

results in allegations with zero relevance. In reality, my
opinion gives Vila the benefit of all reasonable inferences, as
it accepts Vila at his word: his complaint states he was
“refused” compensation long before November 4, and
characterizes all his subsequent contacts as “reiterat[ions]”
and “appeal[s].” The court, by contrast, goes out of its way to
find inferences flatly contradicted by the allegations in Vila’s
complaint, based on a theory that has no foundation in our
case law or that of the District of Columbia. Accordingly,
were it necessary to go beyond IIC’s immunity defense, which
it is not, I would reverse on the ground of its statute of
limitations argument, just as the court did in Thompsen, 878
A.2d at 1226.