United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 20-5244 September Term, 2022
1:15-cv-01265-ABJ
Filed On: October 18, 2022
Jacques Dieudonne Itong Miango,
Appellant
Micheline Lompo Miango, et al.,
Appellees
v.
Democratic Republic of Congo, Embassy of
the Democratic Republic of the Congo, et al.,
Appellees
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BEFORE: Millett, Rao, and Childs, Circuit Judges
JUDGMENT
This appeal was considered on the record from the United States District Court
for the District of Columbia, and on the briefs filed by the parties and the brief of amicus
curiae. See Fed. R. App. P. 34(a)(2); D.C. Cir. Rule 34(j). Upon consideration of the
foregoing, the motion for leave to file a motion for summary affirmance out of time, and
the lodged motion for summary affirmance, it is
ORDERED that the motion for leave to file a motion for summary affirmance out
of time be denied as unnecessary because appellant has not appealed the March 22,
2017 dismissal order entered by the district court. See Maloney v. Murphy, 984 F.3d
50, 68 (D.C. Cir. 2020) (“[M]entioning an argument in the most skeletal way, leaving the
court to do counsel’s work, create the ossature for the argument, and put flesh on its
bones is tantamount to failing to raise it.”) (internal quotation marks omitted). In
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 20-5244 September Term, 2022
addition, to the extent appellant challenged the district court’s order filed January 19,
2019, which vacated the default judgment issued against Joseph Kabila Kabange and
dismissed appellant’s claims against him for lack of subject matter jurisdiction, appellant
has withdrawn his challenge to that order. See Reply Br. at 18. It is
FURTHER ORDERED AND ADJUDGED that the district court’s order filed June
29, 2020 be affirmed. The district court vacated the January 16, 2018 default judgment
issued against Jean Marie Kassamba, Jacques Mukaleng Makal, Seraphin Ngwej,
Raymond Tshibanda, and Sam Mpengo Mbey, and dismissed appellant’s claims
against them for lack of subject matter jurisdiction. Appellant challenges the district
court’s conclusion that those individuals were entitled to conduct-based foreign official
immunity under the common law. The district court assessed that issue under the
standard set forth in the Restatement (Second) of Foreign Relations Law § 66(f) (1965)
(“Second Restatement”), which the parties agreed was the proper standard. In light of
that agreement, we will assume without deciding that the Second Restatement
“accurately sets out the scope of common-law immunity for current or former officials.”
See Lewis v. Mutond, 918 F.3d 142, 146 (D.C. Cir. 2019). In addition, the parties
agreed in the district court that additional factfinding was not necessary to determine
whether this doctrine of immunity applied. We therefore will determine whether the
aforementioned appellees are entitled to immunity based on the record before us. We
need not decide whether the views of the United States, which called for additional
factfinding, would be controlling in the absence of the parties’ agreement.
Applying the Second Restatement’s three-part standard, and based on the
record in this case, the district court correctly concluded that the aforementioned
appellees were entitled to conduct-based foreign official immunity. First, an
uncontroverted declaration, and appellant’s own allegations in the complaint, establish
that these appellees were officials or agents of the Democratic Republic of the Congo
(“DRC”). See Second Restatement § 66. Second, the record and plaintiffs’ own
allegations establish that these appellees were acting in their official capacities and on
behalf of the DRC during the events in question. See id. Indeed, based on the alleged
actions by the aforementioned appellees, appellant was awarded a substantial default
judgment against the DRC. Third, appellant did not contest in the district court, and
does not contest here, that exercising jurisdiction over these appellees would have the
effect of enforcing a rule of law against the DRC. See id.; Keepseagle v. Perdue, 856
F.3d 1039, 1053 (D.C. Cir. 2017) (citation and internal quotation marks omitted) (“It is
well settled that issues and legal theories not asserted at the District Court level
ordinarily will not be heard on appeal.”); United States ex rel. Totten v. Bombardier
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
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No. 20-5244 September Term, 2022
Corp., 380 F.3d 488, 497 (D.C. Cir. 2004) (“Ordinarily, arguments that parties do not
make on appeal are deemed to have been waived.”).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk
is directed to withhold issuance of the mandate herein until seven days after resolution
of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App.
P. 41(b); D.C. Cir. Rule 41.
Per Curiam
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