AL MOUMIN v. REPUBLIC OF IRAQ (2025)

MEMORANDUM OPINION

Plaintiff Dr. Mishkat Al Moumin brings this action against the Republic of Iraq (“Iraq”) for failing to pay her pension benefits from nearly nine years of service as a professional employee in Iraq. Dkt. 28 at 1, 16 (SAC ¶¶ 1, 62). She asserts claims for breach of contract, unjust enrichment, and conversion, and she seeks damages in the amount of her unpaid pension benefits and injunctive relief requiring future payments. Id. at 1, 35 (SAC ¶ 1, Prayer for Relief). Because the Foreign Sovereign Immunity Act (“FSIA” or the “Act”), 28 U.S.C. § 1602 et seq., generally bars U.S. courts from exercising jurisdiction over foreign sovereigns, Plaintiff may proceed with her suit only if she alleges facts sufficient to invoke an “existing international agreement[ ]” or applicable exception to the FSIA, id. § 1604. “In the absence of an applicable exception” or treaty provision, “the foreign sovereign's immunity is ‘complete,’ ” and the court must dismiss the action for lack of jurisdiction. Peterson v. Royal Kingdom of Saudi Arabia, 416 F.3d 83, 86 (D.C. Cir. 2005) (quoting Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 39 (D.C. Cir. 2000)).

Iraq moves to dismiss on two grounds. First and foremost, it argues that it is immune from suit and that the Court, accordingly, lacks subject matter jurisdiction. Dkt. 29 at 1. But, in the alternative, it argues that Plaintiff's Second Amended Complaint (“complaint”) fails to state a claim because Plaintiff's causes of action are time barred and because the complaint otherwise fails to plead the necessary elements of each cause of action. Id. In response, Plaintiff argues that the Court has jurisdiction under the “commercial activity exception” to the FSIA, 28 U.S.C. § 1605(a)(2), both (1) because the Iraqi government's administration and management of its pension plan constitutes “commercial activity,” id., and the Iraqi government's reduction and eventual termination of her benefits “caused a direct effect in the United States,” id., where she now resides, and (2) because the Senior Vice President of Iraq agreed to release her pension payments in exchange for her services in the United States as a consultant, and that agreement involved “commercial activity carried on in the United States by the foreign state,” id. Dkt. 30 at 28, 36–37. Should the Court agree on either ground, Plaintiff then argues that Iraq's statute of limitations defense is premature and that its failure to state a claim defense is mistaken. Dkt. 30 at 44, 46.

For the reasons explained below, the Court is unpersuaded by Plaintiff's first theory for invoking the commercial-activity exception to the FSIA but concludes that her second theory suffices at this early stage of the litigation. Iraq disputes that the Senior Vice President had actual (or, if applicable, apparent) authority to contract for services in the United States or, more significantly, to enter an agreement pledging to restore Plaintiff's pension benefits. Dkt. 33 at 10. For present purposes, however, the Court merely holds that the complaint includes factual averments that, if accepted as true, suffice to allege subject-matter jurisdiction. Resolving the parties’ factual dispute regarding the Senior Vice President's authority must await the development of a more complete record. Finally, the Court agrees that it is premature to resolve Iraq's statute of limitations defense and that, at least with respect to Plaintiff's contention that the Senior Vice President agreed to restore Plaintiff's pension in exchange for consulting services, Plaintiff has stated a claim upon which relief may be granted.

The Court will, accordingly, GRANT in part and DENY in part Defendant's Motion to Dismiss, Dkt. 29. The Court will allow Plaintiff's claims to proceed for now, but solely on a theory that the Iraqi Senior Vice President contracted on behalf of his government to retain Plaintiff to provide consulting services in the United States in exchange for the restoration of her pension benefits. Moreover, given the need to resolve immunity issues at the threshold and to respect international comity, the Court will stage further proceedings to address the unresolved jurisdictional issues before turning to any other issues in the case and will proceed in a manner that does not unduly burden Iraq or its senior officials.

I. BACKGROUND

For purposes of deciding Defendant's motion to dismiss, the Court accepts Plaintiff's factual allegations as true. See Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Plaintiff Dr. Mishkat Al Moumin began her career in Iraq as an attorney, completing her bachelor's in law at Baghdad University in 1991, after which she represented Iraqi women in various family law disputes. Dkt. 28 at 4–5 (SAC ¶ 16). She stayed in that role from 1991–2002 and contributed towards her pension during that period. Id. at 29 (SAC ¶ 137). Those funds were collected by “the Iraqi Bar Association on behalf of the [Iraqi] Pension Body.” Id. at 12–13 (SAC ¶ 44). After Dr. Al Moumin received her Ph.D. in international law from Baghdad University, she worked from 2002 until June 2004 “as an assistant professor at the University of Baghdad, School of Law,” where she taught courses on “women's rights.” Id. at 2, 5, 29 (SAC ¶¶ 5, 18, 138). As “a government-owned educational institution,” Baghdad University “required all employees to contribute to their pension based on [the] Civil Service Law of 1966,” id. at 29 (SAC ¶ 138), and those funds were also collected on behalf of the Pension Body, id. at 12–13 (SAC ¶ 44). In June 2004, the Coalition Provisional Authority—“the temporary governing body led by United States Ambassador L. Paul Bremer”—appointed Dr. Al Moumin to serve as the Minister of the Environment. Id. at 6 (SAC ¶ 21). In this role, too, “she was required to contribute to her pension based on the Civil Service Law of 1966,” id. at 29 (SAC ¶ 139), and, once again, the funds were collected by her employer for the benefit of the Iraqi Pension Body, id. at 12–13 (SAC ¶ 44).

Dr. Al Moumin gained recognition for her trailblazing work. See, e.g., id. at 5–9, 12 (SAC ¶¶ 18–20, 23–28, 42). But with that recognition came danger. Among other horrific events, on August 24, 2004, “Zarqawi, the leader of Al-Qaeda in Iraq,” allegedly led an organized attempt to assassinate Dr. Al Moumin. Id. at 9–11 (SAC ¶¶ 30–36, 40). Four of Dr. Al Moumin's bodyguards were killed in the attack, and she sustained several serious physical and emotional injuries, including “diminished hearing in both ears, post-traumatic stress disorder, adjudgment disorder with mixed anxiety and depression, and continued grief and guilt over losing four valuable members of her security detail.” Id. at 9–10 (SAC ¶¶ 31, 35). The danger continued, moreover. “After the attempted extrajudicial killing, Zarqawi ․ issued a statement accepting responsibility for the attempt and vowed to continue attempts on her life,” adding: “we have a lot more arrows in our quiver and we will not miss next time.” Id. at 10 (SAC ¶ 36). Then, in September 2004, the house at which Dr. Al Moumin's nine-year old son was staying (in the hope that he would be shielded from danger) was attacked, although her son was not injured by the gunfire. Id. at 11 (SAC ¶ 38). At this point, Dr. Al Moumin decided to move “her son, her father, and additional trusted family to Syria,” where a member of her family was still “brutally murdered.” Id.

Despite the risk that she and her family faced, Dr. Al Moumin stayed on as the Minister of the Environment. She was “forced to retire” in April 2005, however, following the election of “conservative Islamic parties” who sought her removal due to her advocacy “for the fair and equal treatment of women.” Id. at 12 (SAC ¶ 42). Dr. Al Moumin moved to the United States in July 2005, where she enrolled at the Harvard Kennedy School of Government. Id. at 12 (SAC ¶ 43). She was eventually granted asylum in the United States, id., and she continues to reside here, id. at 2 (SAC ¶ 2); see also Dkt. 30 at 18–19.

Plaintiff's complaint alleges facts that, on her telling, support two separate theories: First, she alleges that, like any retiree, she has a contractual right to her pension payments. Dkt. 28 at 28–30 (SAC ¶¶ 134–41). Second, she alleges that, acting through its Senior Vice President, the Iraqi government entered into a separate contractual undertaking to restore her retirement benefits as compensation for providing the Senior Vice President with consulting services in the United States. Id. at 30 (SAC ¶¶ 142–44). Plaintiff's factual allegations roughly track these separate theories.

A.

Prior to her retirement and decision to leave Iraq, Dr. Al Moumin contributed to her pension over a period of fourteen years, from 1991 until April 2005. Id. at 12 (SAC ¶ 44). Her contributions were deducted from her pay pursuant to the Iraqi Civil Retirement Law (No. 33) of 1966, id. at 28–29 (SAC ¶ 135); see also Dkt. 17-3 at 2–5, and those contributions were “sent to the Pension Body, which accepted” the payments, Dkt. 28 at 12–13 (SAC ¶ 44). The 1966 statute was replaced by the Unified Retirement Law (No. 27) of 2006, id. at 28–29 (SAC ¶ 135); see also Dkt. 17-5 at 2–14, which was replaced, in turn, by the Unified Retirement Law (No. 9) of 2014, see Dkt. 17-7 at 3–35.

Dr. Al Moumin alleges that a series of Executive Orders issued by the Iraqi government altered her pension payments over the years. At the time she retired, Executive Order No. 31 “granted pensioners,” like Plaintiff, “80% of the salary of the[ir] counterparts currently serving as ministers and their deputies.” Dkt. 28 at 13 (SAC ¶ 46). She, accordingly, received a pension “averaging about $14,800 (USD), distributed every two months[,] from February 2006 – October 2011.” Id. at 14 (SAC ¶ 49). This changed, according to Dr. Al Moumin, when “the Iraqi government issued” a new law in 2011, which reduced the retirement payments to former “members of the ministerial council” to “30% of their pension[,] if they ․ serv[ed]” at least “six months but less than a year.” Id. (SAC ¶ 50). Because Dr. Al Moumin served as Minster of the Environment for only nine months, this reduced her “pension to $1,900 (USD) distributed every two months.” Id. (SAC ¶ 51). Dr. Al Moumin disputed her reduced payment, apparently on the ground that she should have received credit for the time she served as an attorney and assistant professor, and, as a result, her payments were increased in 2012 to $5,200 (USD) “distributed every two months,” an amount still well below her original retirement payments. Id. at 14–15 (SAC ¶¶ 53–54).

Iraq restored Dr. Al Moumin's pension to the original amount in June 2013. Id. at 15 (SAC ¶ 55). In 2014, however, a new Iraqi law limited pension eligibility to those who were at least 50 years old and had 15 years of service at the time of retirement, and the Iraqi government applied that law retroactively to Dr. Al Moumin and, thus, ended her pension payments. Id. (SAC ¶¶ 56–57). But that change was short-lived. After the Iraqi Supreme Court declared that the 2014 law was unconstitutional, Dr. Al Moumin's benefits were restored (after some back-and-forth) to their original amount. Id. (SAC ¶ 58). The process repeated itself, albeit with less a salutary result. In September 2015, “the Iraqi government issued” an order “allowing it to withhold pensions of former officials who held their positions after September 4, 2003,” id. at 15–16 (SAC ¶ 59), only to have the Iraqi Supreme Court hold that this order was also unconstitutional, id. at 16 (SAC ¶ 60). Despite this ruling, however, Dr. Al Moumin alleges that she has not received her pension since September 2015. Id. at 24–25 (SAC ¶¶ 110–18). She attributes this omission to Iraq's “discriminatory and arbitrary actions,” including “releasing the pension[s] of former [male] officials,” and “expediting the process to release the pensions of former [male] officials,” but not doing so for former female officials who were considered secular. Id. at 16 (SAC ¶ 63).

B.

Plaintiff further avers that, in May 2017, Nouri al-Maliki, who was serving as the Senior Vice President of Iraq at that time,¹ “solicited Dr. Al Moumin to work for him as a consultant in the United States” to help him “amend his relations with the United States,” id. at 19 (SAC ¶¶ 78, 81), and that he did so “in his capacity as an official and agent of the Republic of Iraq,” id. (SAC ¶ 8). In their first meeting, Vice President al-Maliki told Dr. Al Moumin that he “wanted her to help him to follow the political landscape in the United States and to connect with policy makers in the United States.” Id. (SAC ¶ 79). He was interested in her help, according to the complaint, because of her experience in Iraq, connection “with the Sunni community,” and her multiple “media appearances, published papers[,] and present[ations] at universities and think tanks in the United States.” Id. (SAC ¶¶ 80–81). Vice President al-Maliki further explained that he needed her assistance because “his connection[s] with policy makers in the United States was not always smooth,” “he feared that the United States would support his political rival in ․ Iraq,” and “sending a consultant from ․ Iraq would be cost-prohibitive and time consuming for that individual to become established in the role.” Id. at 20 (SAC ¶¶ 82–83).

According to the complaint, Dr. Al Moumin and Vice President al-Maliki, acting “in his official capacity as an official and agent of the Republic of Iraq,” then entered into a binding contract for services. Id. (SAC ¶¶ 85–87). Initially, Vice President al-Maliki offered to pay Dr. Al Moumin a salary for her services, but when she explained that she “could not accept both a salary and her pension” as a matter of Iraqi law, he agreed—“as an official and agent of the Republic of Iraq”—to obtain the release of her pension in exchange for her services. Id. Plaintiff further alleges that she delivered on her end of the bargain, by providing “security consultations, economic consultations, media responses, legal consultations, election consultations, conducting and publishing an interview, contacting United States policy makers and a congressionally founded and funded United States institute, contacting United Nations policy makers, contacting United States non-profit corporations, researching office space and fees associated with an office, and [conducting] general research.” Id. at 20–21 (SAC ¶ 88).

Vice President al-Maliki, in turn, seemed (at least at first) to be upholding Iraq's end of the alleged bargain. “On several occasions, [he] assured Dr. Al Moumin that he was working to get her pension released and asked that she send her request for the release of her pension directly to him.” Id. at 21 (SAC ¶ 89). But by June 2018—a little over a year into the alleged engagement—Dr. Al Moumin no longer heard from Vice President al-Maliki. Id. (SAC ¶ 90). Despite providing over a year's worth of service, Dr. Al Moumin never received a salary or release of her pension. Id. (SAC ¶ 92).

For the next three years, Dr. Al Moumin continued her campaign seeking release of her pension. In doing so, she sought assistance from her congressman and from two attorneys, whom she retained. Id. at 22 (SAC ¶¶ 93–96). But, finally, in May 2021 the Iraqi government “responded that [it] would continue to apply the unconstitutional law ․ to deprive Plaintiff of her pension.” Id. (SAC ¶ 97).

C.

A little over a year later, she commenced this action against the Republic of Iraq, asserting claims for breach of contract, unjust enrichment, conversion, torture, and attempted extrajudicial killing. Dkt. 1. That same month, she filed her First Amended Complaint, adding a claim for negligence, Dkt. 8, only to drop that and other claims in her Second Amended Complaint, Dkt. 28, which she filed after Iraq moved to dismiss her First Amended Complaint, Dkt. 17. Plaintiff's Second Amended Complaint asserts only three claims—breach of contract, unjust enrichment, and conversion. Dkt. 28 at 28, 31, 33 (SAC ¶¶ 133, 147, 153). Pending before the Court is Defendant's motion to dismiss that complaint on grounds of sovereign immunity, statute of limitations, and failure to state a claim, Dkt. 29; Plaintiff's opposition, Dkt. 30; Defendant's reply, Dkt. 33; and the parties’ notices of supplemental authority and responses to those notices, Dkts. 35–38, 40–41.

II. LEGAL STANDARD

The Republic of Iraq moves to dismiss pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction and pursuant to Rule 12(b)(6) for failure to state a claim. Dkt. 29 at 1.

A motion to dismiss for lack of jurisdiction can take one of two forms. First, it may raise a “facial” challenge to the Court's jurisdiction, which contests the legal sufficiency of the jurisdictional allegations in the complaint. Erby v. United States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006). When framed in this manner, the Court must accept the allegations of the complaint as true and must construe “the complaint in the light most favorable to the non-moving party.” Id.; see I.T. Consultants, Inc. v. Republic of Pakistan, 351 F.3d 1184, 1188 (D.C. Cir. 2003). In this sense, the Court must resolve the motion in a manner similar to a motion to dismiss under Rule 12(b)(6). See Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 93 (D.C. Cir. 2002).

Alternatively, a Rule 12(b)(1) motion may pose a “factual” challenge to the Court's jurisdiction. Erby, 424 F. Supp. 2d at 182–83. When framed in this manner, 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,’ but ‘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.’ ” Id. at 183 (quoting Phoenix Consulting, Inc., 216 F.3d at 40). In this context, the factual allegations of the complaint are not entitled to a presumption of validity, and the Court is required to resolve factual disputes between the parties. Id. The Court may consider the complaint, any undisputed facts, and “the [C]ourt's resolution of disputed facts.” Id. (quoting Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)). Although “[t]he district court retains ‘considerable latitude in devising the procedures it will follow to ferret out the facts pertinent to jurisdiction,’ ․ it must give the plaintiff ‘ample opportunity to secure and present evidence relevant to the existence of jurisdiction.’ ” Phoenix Consulting, Inc., 216 F.3d at 40 (quoting Prakash v. Am. Univ., 727 F.2d 1174, 1179–80 (D.C. Cir. 1984)).

A motion to dismiss brought under Rule 12(b)(6), in contrast, is designed to “test[ ] the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In evaluating such a motion, the Court “must first ‘tak[e] note of the elements a plaintiff must plead to state [the] claim’ to relief, and then determine whether the plaintiff has pleaded those elements with adequate factual support to ‘state a claim to relief that is plausible on its face.’ ” Blue v. District of Columbia, 811 F.3d 14, 20 (D.C. Cir. 2015) (alterations in original) (citation omitted) (quoting Ashcroft, 556 U.S. at 662, 675, 678, 129 S.Ct. 1937). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), “a complaint must contain sufficient factual matter, [if] accepted as true, to ‘state a claim to relief that is plausible on its face,’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “In evaluating a Rule 12(b)(6) motion, the Court must construe the complaint ‘in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged.’ ” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). Because the running of the statute of limitations is an affirmative defense, “courts should hesitate to dismiss a complaint on statute of limitations grounds based solely on the face of the complaint.” Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996).

III. ANALYSIS

A. Foreign Sovereign Immunity

The Court begins, as it must, with sovereign immunity and its corollary, subject-matter jurisdiction. “For more than a century and a half, the United States generally granted foreign sovereigns complete immunity from suit in the courts of this country,” and courts deferred to the views of the State Department regarding assertions of immunity. Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). The practice of granting complete immunity to foreign states subject to suit in the United States changed in the 1950s, however, when the State Department adopted the “restrictive” theory of foreign sovereign immunity, which limited immunity “to suits involving foreign sovereign's public acts” and did not extend immunity to “a foreign state's strictly commercial acts.” Id. at 486–87, 103 S.Ct. 1962. Congress enacted the “restrictive” theory of foreign sovereign immunity into law in 1976, when it “passed the Foreign Sovereign Immunities Act.” Id. at 488, 103 S.Ct. 1962. Today, “the FSIA provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country.” Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989).

The FSIA starts with a sweeping grant of immunity to foreign states “from the jurisdiction of the courts of the United States,” and it then carves out a series of exceptions. 28 U.S.C. § 1604. “The commercial-activity exception [is] the ‘most significant of the FSIA's exceptions,’ ” Exxon Mobil Corp. v. Corporacion Cimex, S.A., 111 F.4th 12, 29 (D.C. Cir. 2024) (quoting Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 611, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992)), and it is the only exception that Plaintiff invokes—or that is at issue—in this case. The commercial-activity exception contains three clauses and 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)(2). The Act defines the phrase “commercial activity” to mean “either a regular course of commercial conduct or a particular commercial transaction or act,” and it clarifies that “[t]he commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.” Id. § 1603(d). “[C]ommercial activity carried on in the United States by a foreign state” is defined to mean “commercial activity carried on by such state and having substantial contact with the United States.” Id. § 1603(e). Because sovereign immunity is assessed “on a claim-by-claim basis,” courts must “review[ ] [each] cause[ ] of action separately” to determine whether an exception applies to that claim. Rodriguez v. Pan Am. Health Org., 29 F.4th 706, 714 (D.C. Cir. 2022).

Here, Plaintiff's two theories of the case—first, that the Iraqi pension system itself established a contractual obligation to pay Dr. Al Moumin the full amount to which she was entitled at the time she retired, and, second, that Senior Vice President al-Maliki was acting on behalf of the Iraqi government when he retained Dr. Al Moumin to provide consulting services in the United States in exchange for a promise to reinstate her pension—correspond with two of the three clauses of the commercial-activity exception. The first theory posits (under the third clause) that Iraq engaged in commercial activity outside the territory of the United States that caused a “direct effect” in the United States. The second theory posits (under the first clause) that Iraq “carried on” commercial activity in the United States by contracting with Dr. Al Moumin to provide consulting services in the United States. As explained below, the Court concludes that Plaintiff's complaint fails to allege facts sufficient to trigger the “direct effect” clause of the exception, but it does allege facts sufficient to fall within the “carried on” clause. The Court stresses, however, that Plaintiff merely clears the modest hurdle for pleading jurisdiction under the first clause of the commercial-activity exception. At summary judgment, the parties will have the opportunity to address whether a sufficient factual basis exists to proceed on the theory that Vice President al-Maliki was acting on behalf of the Iraqi government and that he had the actual (or apparent, if applicable) authority to enter the alleged agreement.

1. Act Outside the United States in Connection with a Commercial Activity Causing a Direct Effect in the United States

Plaintiff first argues that “Iraq's administration and management of its defined-benefit pension plan constitute ‘commercial activity,’ ” Dkt. 30 at 33, and that, although her “pension-related claims are based upon an act outside the territory of the United States,” “Iraq's termination of [her] pension had an immediate and devastating effect in the United States,” id. at 36–37. On Plaintiff's telling, these allegations suffice to trigger the “direct effect” prong of the commercial-activity exception. Id. at 37. Iraq disagrees in two respects. It disagrees with Plaintiff's contention that Iraq's implementation of the country's pension laws constitutes “commercial activity,” and it disagrees that the reduction and ultimate termination of Dr. Al Moumin's pension benefits caused a “direct effect” in the United States. Dkt. 29 at 12. The Court starts with the second of these counterarguments because it is both straightforward and dispositive.

The FSIA does not abrogate foreign sovereign immunity for any claim involving commercial activity outside the United States that has any effect in the United States; rather, the effect must be “direct.” 28 U.S.C. § 1605(a)(2). As Plaintiff points out, this does not mean that the effect must be substantial or foreseeable. Dkt. 30 at 37. As the Supreme Court held in Republic of Argentina v. Weltover, Inc., however, it does mean that the effect must “follow[ ] ‘as an immediate consequence of the defendant's ․ activity.’ ” 504 U.S. at 618, 112 S.Ct. 2160. In Weltover, the Supreme Court held that the Republic of Argentina's decision to “unilaterally extend[ ] the time for payment” on certain bonds that it had issued, id. at 610, 112 S.Ct. 2160, fell within the third clause of the commercial-activity exception because the bond-issuance constituted commercial activity, id. at 614–15, 112 S.Ct. 2160, and the delay in payment caused a “direct effect” in the United States, see id. at 617–19, 112 S.Ct. 2160 (quoting 28 U.S.C. § 1605(a)(2)). Of particular relevance here, the Supreme Court held that the rescheduling of the payments had a “ ‘direct effect’ in the United States” “[b]ecause New York was ․ the place of performance for Argentina's ultimate contractual obligations.” Id. at 618–19, 112 S.Ct. 2160. In other words, “[m]oney that was supposed to have been delivered to a New York bank for deposit was not forthcoming.” Id. at 619, 112 S.Ct. 2160.

Two post-Weltover D.C. Circuit opinions provide helpful guidance on application of the “direct effect” requirement to the present context. In the first case, Peterson v. Royal Kingdom of Saudi Arabia, 416 F.3d 83 (D.C. Cir. 2005), the court considered a claim brought by a former employee of multiple private engineering and construction companies that operated in Saudi Arabia. Id. at 84–85. The employee sought payment of contributions that his employers made on his behalf over the years into the Saudi General Organization of Social Insurance, which is an agency of the Saudi Arabian government. Id. The plaintiff repeatedly contacted the Saudi Arabian Embassy in Washington, D.C. for assistance, and, after failing to receive a response, he brought suit in this Court. Id. at 85. As relevant here, the plaintiff argued that Saudi Arabia was subject to suit in the United States under the “direct effect” clause of the commercial-activity exception because (1) the Royal Decree that revoked his right to benefits took place outside the United States, (2) the decree was “in connection with a commercial activity”—namely, the conduct of a defined-contribution retirement plan, and (3) that action caused a “direct effect” in the United States—namely, Saudi Arabia was “accustomed to sending refund checks to be deposited in bank accounts in the United States and [its] failure to send a full refund ha[d] thus caused [a] direct effect in the United States.” Id. at 89–90 (first and third alterations in original) (internal quotation marks and citations omitted).

The D.C. Circuit was unpersuaded. Without reaching “the merit of Peterson's arguments regarding the first two requirements,” the court concluded that the exception did not apply because the termination of his benefits did not have a direct effect in the United States. Id. at 90. In reaching that conclusion, the court was unimpressed by the plaintiff's contention that “he ‘and other foreign workers, their employers, [the Saudi insurance agency], and the Saudi Government all understood that [the] [p]laintiff would return to the United States and that [the Saudi insurance agency] benefits would be remitted here.’ ” Id. (citations omitted). To be sure, had the Saudi government agreed to pay the plaintiff in the United States and then failed to do so, he might well have been able to establish a “direct effect” in the United States, as the plaintiffs were able to do in Weltover. Id. at 90–91. But he failed to identify any such “agreement—implied or express;” “he was not paid in the United States;” and, instead, he received payment in Saudi Arabia. Id. at 91. Finally, the court noted that even if Saudi Arabia might have granted a request to send the plaintiff's payment to him in the United States, “it might just as well have” declined to do so. Id. (quoting Goodman Holdings v. Rafidain Bank, 26 F.3d 1143, 1147 (D.C. Cir. 1994)). As a result, the court concluded, the commercial-activity exception did “not provide any court in the United States with the jurisdiction necessary to entertain [the plaintiff's] suit against Saudi Arabia.” Id.

The second case, Odhiambo v. Republic of Kenya, 764 F.3d 31 (D.C. Cir. 2014), abrogated on other grounds, Rosenkrantz v. Inter-Am. Dev. Bank, 35 F.4th 854 (D.C. Cir. 2022), is to similar effect. In that case, the Republic of Kenya promised to pay rewards in exchange for information regarding “undisclosed taxes.” Id. at 33. The plaintiff produced more information than even the Kenyan government might have anticipated, and, after being exposed as an informant, fled Kenya for his safety. Id. With the help of “Kenyan officials,” he “move[d] to the United States as a refugee.” Id. When the Kenyan government failed to pay the plaintiff the entire amount that he believed he was entitled to receive, he brought suit in this Court, and Kenya moved to dismiss on grounds of sovereign immunity. Id. at 34–35. This Court agreed that Kenya was entitled to immunity, and the D.C. Circuit affirmed. Id. at 33. The D.C. Circuit's discussion of the “direct effect” requirement is, once again, illuminating.

In describing the Supreme Court's holding in Weltover, the D.C. Circuit stressed that the Argentinian “bond contract” at issue in that case “had established the United States as a ‘place of performance.’ ” Id. at 38 (quoting Weltover, 504 U.S. at 619, 112 S.Ct. 2160). As a result, “[w]hen Argentina breached its contractual obligations by failing to make bond payments that were ‘supposed to have been delivered to a New York bank,’ its breach had a direct effect in the United States.” Id. (quoting Weltover, 504 U.S. at 619, 112 S.Ct. 2160). The D.C. Circuit continued:

Like Weltover, this Court's direct effect cases involving alleged breaches of contract have turned on whether the contract in question established the United States as a place of performance. That approach follows from the text and purpose of the FSIA. By definition, breaching a contract that establishes the United States as a place of performance will have a direct effect here, whereas breaching a contract that establishes a different or unspecified place of performance can affect the United States only indirectly, as the result of some intervening event such as the plaintiff's move to this country. See Princz v. Federal Republic of Germany, 26 F.3d 1166, 1172 (D.C. Cir. 1994). Construing clause three to permit suits in that latter category would create an incentive for every breach of contract victim in the world to move to the United States, demand payment here, and then sue alleging a direct effect of nonpayment in the United States. That result would contradict the statutory term “direct” and undermine Congress's objective of avoiding turning U.S. courts into “small international courts of claims.” Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 490, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983) (internal quotation marks omitted).

Id. at 38–39. The D.C. Circuit further “observed that ‘harm to a U.S. citizen, in and of itself, cannot satisfy the direct effect requirement.’ ” Id. at 39 (quoting Cruise Connections Charter Mgmt. 1, LP v. Att'y Gen. of Canada, 600 F.3d 661, 665 (D.C. Cir. 2010)). Rather, the D.C. Circuit's “cases draw a very clear line: For purposes of clause three of the FSIA commercial activity exception, breaching a contract that establishes or necessarily contemplates the United States as a place of performance causes a direct effect in the United States.” Id. at 40. In contrast, “breaching a contract that does not establish or necessarily contemplate the United States as a place of performance does not cause a direct effect in the United States.” Id.

Applying that test, the D.C. Circuit had little difficulty concluding that the plaintiff's claims failed. Most notably, the court observed that the contract at issue did not specify the United States as a place of performance—that is, Kenya did not contractually agree to make payment in the United States—and nothing in the course of performance manifested consent to modify the agreement. Id. at 41. To the contrary, the plaintiff “received the payments in the United States only through an intermediary in Kenya who obtained the payments in Kenya and then sent them to” the plaintiff in the United States. Id. at 42. Finally, the fact that “Kenya arranged for [the plaintiff] to seek asylum in the United States” did not satisfy the “direct effect” test and did not constitute a stand-alone exception to foreign sovereign immunity. Id.

Weltover, Peterson, and Odhiambo control the disposition of Dr. Al Moumin's claim that Iraq's reduction and ultimate termination of her retirement benefits constituted commercial activity undertaken in Iraq that “cause[d] a direct effect in the United States,” 28 U.S.C. § 1605(a)(2). As in Peterson and Odhiambo, and unlike as in Weltover, nothing in the Iraqi pension laws, or in any related agreement, “establishe[d] or necessarily contemplate[d] the United States as a place of performance [so as to] cause[ ] a direct effect in the United States.” Odhiambo, 764 F.3d at 40. Moreover, like the plaintiff in Odhiambo, Dr. Al Moumin acknowledges that her pension distributions were paid to her agent in Iraq, Dkt. 28 at 17 (SAC ¶ 68), and the mere fact that her agent (even with the presumptive knowledge of the Iraqi government) forwarded those payments to her in the United States is immaterial for present purposes. Finally, although Dr. Al Moumin devotes considerable attention in her complaint, Dkt. 28, and in her opposition brief, Dkt. 30, to cataloguing the hardships that she, her family, and the non-profit corporation that she founded have suffered—and will continue to suffer—in the United States, the D.C. Circuit has repeatedly held that harm to a U.S. citizen, without more, does not suffice to satisfy the “direct effect” requirement. See Odhiambo, 764 F.3d at 39; Cruise Connections Charter Mgmt. 1, LP, 600 F.3d at 665.

In the face of this binding precedent, Plaintiff presses three further arguments, none of which is persuasive. Plaintiff first argues that she “was required to certify to the Republic of Iraq that she was alive and in good health” and to certify her residence, which “was always [in] the United States,” Dkt. 28 at 16–17 (SAC ¶¶ 65–66); that these “annual certifications occurred at the Consulate General of the Republic of Iraq in Los Angeles and the Embassy of the Republic of Iraq in Washington, D.C.,” id. at 17 (SAC ¶ 66); and that she “incurred travel expenses, mailing and shipping fees, embassy fees, and photo fees” to comply with the certification process, id. (SAC ¶ 67). Plaintiff does not allege, however, that she was required to live in the United States—or even that the alleged contract for the payment of pension benefits “necessarily contemplated”—that she would live in the United States. Odhiambo, 764 F.3d at 40. Nor does she allege that the contract required or “necessarily contemplated” that she would appear at the Iraqi consulate in Washington, D.C. to make the required certification. Id. But, as the D.C. Circuit held in Odhiambo, “breaching a contract that establishes [an] ․ unspecified place of performance can affect the United States only indirectly, as the result of some intervening event such as the plaintiff's move to this country.” 764 F.3d at 38 (emphasis in original); see also Wye Oak Tech., Inc. v. Republic of Iraq, 109 F.4th 509, 517 (D.C. Cir. 2024) (“[W]e have repeatedly held that when a foreign state merely has the discretion to pay in the United States, the missing funds do not have a direct effect in the United States.”).

Next, Plaintiff argues that “Iraq used its [banking] accounts in the United States as the source for payment of Dr. Al Moumin's pension, and the termination of her pension immediately and directly affected amounts transferred from the United States to Iraq,” Dkt. 30 at 39, presumably to pay Dr. Al Moumin's agent in Iraq. Plaintiff's allegations follow a circuitous path. She first alleges that under the Iraqi Constitution “[o]il and gas are owned by all the people of Iraq” and, relatedly, that a large portion of the Iraqi budget (she believes 90%) “is funded by oil revenue.” Dkt. 28 at 26 (SAC ¶ 124). She then alleges that “[t]hese oil revenues are maintained in the Development Fund of Iraq (DFI);” that DFI funds are held in accounts in the Federal Reserve Bank; and that “funds from the DFI account are distributed to the Trade Bank of Iraq account at JP Morgan Chase Bank and Citibank, N.A.” Id. at 26–27 (SAC ¶¶ 124–27). Finally, “[t]he Trade Bank of Iraq facilitates letters of credit authorized by the Ministry of Finance from the Federal Reserve Bank in” New York, “which are then distributed to other Ministries based on their individualized budgets.” Id. at 27 (SAC ¶ 128). Although Iraq disputes these allegations, Plaintiff maintains that “[t]hese are the funds” that are used to pay Iraqi pensions, including the pension payments that Dr. Al Moumin is due.² Id.

Plaintiff's argument confuses the first and third clauses of the commercial-activity exception. To the extent she intends to argue (under the first clause) that her “action is based upon a commercial activity carried on in the United States by” Iraq, 28 U.S.C. § 1605(a)(2), she faces two insurmountable hurdles. First, she concedes that her “claims are based upon an act outside the territory of the United States.” Dkt. 30 at 36. Second, the FSIA defines “commercial activity carried on in the United States by a foreign state” to mean “commercial activity carried on by such state and having substantial contact with the United States,” 28 U.S.C. § 1603(e), and she does not allege that the flow of funds through the United States established a “substantial contact” between Iraq's management of its pension program and the United States.

Alternatively, to the extent Plaintiff intends to argue (under the third clause) that her claims are “based ․ upon an act outside the territory of the United States” that caused “a direct effect in the United States,” id. § 1605(a)(2), she has failed plausibly to allege that the decisions to reduce and then to terminate her pension payments directly affected the flow of funds from U.S. banking institutions to the budget of the Iraqi Ministry of Finance. Alleging that funds that passed through a U.S. banking institution were eventually distributed to Iraqi ministries (including the Ministry of Finance) and that those funds were then eventually used in part to fund pensions (including, in vanishingly small part, Dr. Al Moumin's pension) fails to satisfy the “direct effect” test. To start, those allegations fail to establish any plausible link, much less a direct link, between Iraq's decision to terminate Dr. Al Moumin's pension payments and Iraqi financial deposits in the United States. Plaintiff does not allege, for example, that Iraq withdraws funds from U.S. banking institutions on a dinar-for-dinar basis to fund individual pension payments, and it is implausible to suggest that the decision to terminate her pension payments had any discernible effect on the amount of money transferred from banking institutions in the United States to Iraq to fund the Iraqi government. But even putting that difficulty aside, any such effect would not have been direct. Just as downstream economic or commercial consequences of an alleged breach that result from the “unilateral business judgment” of one party to the agreement and that fall “outside the scope of the [a]greement” will not suffice, Wye Oak Tech., Inc., 109 F.4th at 519, the upstream consequences of unilateral decisions about how to fund a contractual commitment, which are not addressed in the agreement, do not amount to “direct” effects of breach. Indeed, given the prominent role that the United States plays in international banking, a rule that treated any transfer from U.S. financial institutions to foreign accounts that are then used to make contractual payments as constituting a “direct effect in the United States” would, as a practical matter, read the “direct effect” limitation out of the Act.

Finally, Plaintiff contends that this case is “distinguish[able]” from the cases that Iraq invokes because “Dr. Al Moumin ․ was granted political asylum because of the threat to her and her son in Iraq” and because, in light of this danger, she “cannot return to Iraq to ․ obtain her pension.” Dkt. 30 at 39–40. The D.C. Circuit, however, rejected this same argument in Odhiambo, where the court wrote:

Odhiambo nonetheless suggests that our direct effect analysis should apply differently here because Kenya arranged for him to seek asylum in the United States. Under his theory, refugees would be allowed to bring suits in U.S. courts against their former sovereigns if those sovereigns played a role in the refugees’ relocation to the United States. Whatever the wisdom of that proposed refugee exception as a policy matter, the FSIA does not recognize it. So neither can we. We must adhere to the text of the statute, especially in FSIA cases. See Republic of Argentina v. NML Capital, Ltd., [573] U.S. [134, 139–43] 134 S. Ct. 2250, 2255–56, 189 L.Ed.2d 234 (2014). As we explained above, the FSIA is the sole way for a plaintiff suing a foreign sovereign to invoke the jurisdiction of U.S. courts, and the exceptions enumerated by the FSIA are exhaustive. In other words, any claim to a FSIA exception “must stand on the Act's text. Or it must fall.” NML Capital, 134 S.Ct. at 2256. Odhiambo's proposed refugee exception cannot stand on the FSIA's text. So it must fall.

764 F.3d at 42 (first and third citations omitted). The same holds true here, where Dr. Al Moumin—like the plaintiff in Odhiambo—is an asylee, who would likely face grave risk if she were to return to Iraq to press her claims there. Even if no other judicial system is available to adjudicate Plaintiff's claims, that “is not a reason to find” jurisdiction, which is otherwise lacking. Cf. Clapper v. Amnesty Int'l, U.S.A., 568 U.S. 398, 420, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013).

The Court, accordingly, rejects Plaintiff's contention that the third clause of the commercial-activity exception abrogates Iraq's immunity to suit for breaching its contractual obligation to pay Dr. Al Moumin her pension based on her years of employment in Iraq. Her argument fails because Plaintiff's claim is based on an act that occurred outside the United States—the decision not to pay her the pension that she earned through her years of employment in Iraq—and that “act” did not “cause[ ] a direct effect in the United States.” 28 U.S.C. § 1605(a)(2). Iraq argues that this theory of jurisdiction fails for a second reason as well; it argues that “the administration of the Iraqi public sector pension system is not a ‘commercial activity.’ ” Dkt. 29 at 8; see also id. at 15–18. The Court need not decide the issue because Plaintiff, in any event, fails to allege facts sufficient to satisfy the “direct effect” requirement. For present purposes, the Court simply notes that the alternative argument is a substantial one and that it might well provide yet a further ground for dismissal.

2. Commercial Activity Carried on in the United States by a Foreign State

Plaintiff's second theory of jurisdiction fares better than her first. Under this theory, Plaintiff's breach of contract claim is not predicated on the allegation that the Iraqi pension law, standing alone, gave rise to a contractual obligation to continue to pay Dr. Al Moumin's pension. Instead, she alleges that she was retained by Senior Vice President Nouri al-Maliki, acting on behalf of the Iraqi government, to provide consulting services in the United States in exchange for the “release[ ]” of Dr. Al Moumin's pension. Dkt. 28 at 20 (SAC ¶¶ 85–87); see also Dkt. 30 at 24–32. She further alleges that, pursuant to this agreement, she held up her end of the bargain; she provided services to the Senior Vice President “on a daily basis” for over a year, including security, economic, legal, and election consulting; outreach to policymakers and non-profit corporations; media responses; and “general research.” Dkt. 28 at 20–21 (SAC ¶ 88). The Iraqi government, in contrast, allegedly failed to keep up its end of the bargain. Id. at 21 (SAC ¶ 89–92). Dr. Al Moumin reasons that, for purposes of the FSIA, her claim is no different than any other claim for the alleged breach of a contract to provide goods or services in the United States for the benefit of a foreign state and that, accordingly, it falls squarely within the first clause of the commercial-activity exception.

Under that provision, “[a] foreign state [is not] immune from the jurisdiction of the courts of the United States ․ in any case ․ in which the action is based upon a commercial activity carried on in the United States by the foreign state.” 28 U.S.C. § 1605(a)(2). Notably, “[t]he commercial character of an activity [is] determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.” Id. § 1603(d). As a result, “foreign sovereign immunity [does] not bar a suit based upon a foreign state's participation in the marketplace in the manner of a private citizen or corporation.” Weltover, 504 U.S. at 614, 112 S.Ct. 2160 (citing Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 698–705, 96 S.Ct. 1854, 48 L.Ed.2d 301 (1976) (plurality opinion)). That is, “when a foreign government acts, not as a regulator of a market, but in the manner of a private player within it, the foreign sovereign's actions are ‘commercial’ within the meaning of the FSIA.” Id.

Here, Iraq does not dispute that contracting for consulting services constitutes commercial activity or that Plaintiff's claim is based on activity carried out in the United States by a foreign state. Accepting Plaintiff's allegations as true, as the Court must at this stage of the proceeding, Iraq's Mr. al-Maliki (who was serving as Senior Vice President of Iraq and who had previously served as Prime Minister) reached out to Dr. Al Moumin in the United States to contract with her to provide consulting services in the United States. This Court has repeatedly held that “[a] contract for the provision of legal services constitutes ‘commercial activity’ under section 1605(a)(2).” Lanny J. Davis & Assocs. LLC v. Republic of Equatorial Guinea, 962 F. Supp. 2d 152, 159 (D.D.C. 2013); Dentons U.S. LLP v. Republic of Guinea, 134 F. Supp. 3d 5, 9 (D.D.C. 2015) (quoting Lanny J. Davis & Assocs. LLC, 962 F. Supp. 2d at 159); see also Law Offices of Arman Dabiri & Assocs. PLLC v. Agric. Bank of Sudan, No. 17-2497, 2019 WL 231753, at *6 (D.D.C. Jan. 16, 2019); Nnaka v. Fed. Republic of Nigeria, 238 F. Supp. 3d 17, 28 (D.D.C. 2017); Embassy of Fed. Republic of Nigeria v. Ugwuonye, 901 F. Supp. 2d 136, 141 (D.D.C. 2012); Reichler, Milton & Medel v. Republic of Liberia, 484 F. Supp. 2d 1, 2 (D.D.C. 2007). “That is because ‘retaining an attorney is the type of activity by which private parties engage in commerce.’ ” Dentons US LLP v. Republic of Guinea, 410 F. Supp. 3d 194, 205 (D.D.C. 2019) (quoting Nnaka, 238 F. Supp. 3d at 28). Because private businesses routinely contract for an array of consultative services similar to those at issue here, that same reasoning is controlling. It does not matter why Iraq sought the services at issue, just as “it does not matter why a foreign government might contract to purchase army boots or bullets.” Id.; see also Weltover, 504 U.S. at 614–15, 112 S.Ct. 2160 (“a contract to buy army boots or even bullets is a ‘commercial’ activity, because private companies can similarly use sales contracts to acquire goods”). “What matters is [that] the suit is based upon ‘the type of action[ ] by which a private party engages in “trade and traffic or commerce.” ’ ” Dentons, 410 F. Supp. 3d at 205 (emphasis in original) (quoting Weltover, 504 U.S. at 614, 112 S.Ct. 2160).

Rather than dispute any of this, Iraq makes one (and only one) argument: It maintains that Plaintiff has failed adequately to allege that Senior Vice President al-Maliki's actions can be attributed to Iraq. Dkt. 29 at 20–22. In particular, Iraq argues that “Plaintiff does not allege that Mr. al-Maliki ever possessed the authority in his capacity as Senior Vice President of Iraq to release Plaintiff's pension or to contract to do so on behalf of the Republic,” id. at 21; that “the commercial activity exemption may be invoked against a foreign state only when its officials have actual [as opposed to apparent] authority,” id. (internal quotation marks omitted) (quoting CapitalKeys, LLC v. Democratic Republic of Congo, No. 15-cv-2079, 2021 WL 2255362, at *18 (D.D.C. June 3, 2021)); and that, in any event, “Plaintiff's [own] allegations ․ negate that Mr. al-Maliki enlisted Dr. Al Moumin's services on behalf of Iraq,” id. at 21–22. Construing the complaint in the light most favorable to Plaintiff, and drawing all reasonable inferences in her favor, as the Court is required to do at this stage of the proceeding, see I.T. Consultants, Inc., 351 F.3d at 1188; Phoenix Consulting, Inc., 216 F.3d at 40, the Court is unpersuaded—at least for now.³

Despite Iraq's arguments to the contrary, Plaintiff adequately alleges that Mr. al-Maliki acted on behalf of Iraq when he retained Dr. Al Moumin to provide consulting services in exchange for reinstating her pension payments. Plaintiff alleges that “[t]he Senior Vice President, in his capacity as an official and agent of the Republic of Iraq, solicited Dr. Al Moumin to work for him as a consultant in the United States,” Dkt. 28 at 19 (SAC ¶ 78) (emphasis added); that “in his official capacity as an official and agent of the Republic of Iraq,” Mr. al-Maliki “offered [her] a salary,” which she “could not accept” without forgoing her pension, id. at 20 (SAC ¶ 85) (emphasis added); that she requested release of her pension in lieu of a salary and that “[t]he Senior Vice President, in his capacity as an official and agent of the Republic of Iraq, agreed,” id. (SAC ¶¶ 86–87) (emphasis added); that Mr. al-Maliki assured her “[o]n several occasions ․ that he was working to get her pension released” and that she should “send her request for the release of her pension directly to him,” id. at 21 (SAC ¶ 89); that, at the same time, “[t]he Republic of Iraq, by and through the Senior Vice President, continued to benefit from Dr. Al Moumin's consulting services,” id. (emphasis added); and that “[t]he Republic of Iraq received services from Dr. Al Moumin as a consultant for over a year,” id. (SAC ¶ 91) (emphasis added). In short, the complaint clearly alleges that Mr. al-Maliki, the Senior Vice President of Iraq and former Prime Minister, was acting on behalf of Iraq when he agreed to arrange for the release of Dr. Al Moumin's pension in lieu of paying her a salary for the consulting services that she provided to the Iraqi government.

Iraq offers several responses, some of which might ultimately prevail, but none of which suffices at this early stage of the proceeding. Iraq first argues that the complaint itself conflicts with Plaintiff's position, and, instead of alleging that Dr. Al Moumin provided services to Iraq, it concedes that the services were provided to Mr. al-Maliki. It notes, for example, that Mr. al-Maliki “solicited Dr. Al Moumin to work for him as a consultant,” id. at 19 (SAC ¶ 78) (emphasis added); that Mr. al-Maliki “wanted her to help him to follow the political landscape in the United States,” id. (SAC ¶ 79) (emphasis added); that “Dr. Al Moumin was in the best position to help the Senior Vice President amend his relations with the United States,” id. (SAC ¶ 81) (emphasis added); and that Mr. al-Maliki “told Dr. Al Moumin that his connection with policymakers in the United States was not always smooth and he feared that the United States would support his political rival in the Republic of Iraq,” id. at 20 (SAC ¶ 82) (emphasis added). On Iraq's reading, these allegations confirm that Mr. al-Maliki retained Al Moumin to advance his private interests and not to provide services on behalf of Iraq. In short, “[h]iring a consultant to advance one's political standing is akin to a campaign expenditure, which cannot be underwritten by the State.” Dkt. 33 at 12.

Although Iraq's argument is plausible, it ignores the standard that applies to a motion to dismiss. In reviewing a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), the court must not only “assume the truth of all material factual allegations in the complaint,” but must also “construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged.” Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (internal quotation marks omitted) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). “Absent evidentiary offerings,” moreover, “weighing the plausibility of [the plaintiff's] allegations [is] for a later stage of the proceedings.” Feldman v. FDIC, 879 F.3d 347, 351 (D.C. Cir. 2018). Applying that standard here, the complaint is reasonably—and perhaps best—construed to allege that Mr. al-Maliki retained Dr. Moumin's services on behalf of Iraq, rather than on his own behalf. That, of course, is what the complaint repeatedly says, and the handful of references to helping Mr. al-Maliki or “work[ing] for him,” Dkt. 28 at 19 (SAC ¶¶ 78–79), are not necessarily inconsistent with those unambiguous allegations. It is not at all odd, for example, to say that a special assistant to a minister or cabinet official “works for” that official, even though all understand that the special assistant, in fact, works for the government. Although the complaint's reference to Mr. al-Maliki's concern that “the United States would support his political rival,” id. at 20 (SAC ¶ 82), comes closer to suggesting that Dr. Al Moumin was retained to assist him in his personal capacity, that is not the only reading of the complaint, nor does it give meaning to the repeated, unambiguous allegations to the contrary.

Next, Iraq argues that Plaintiff's allegations that Mr. al-Maliki acted “in his capacity as an official and agent of the Republic of Iraq,” Dkt. 33 at 12 (internal quotation marks omitted) (quoting Dkt. 28 at 19–20 (SAC ¶¶ 78, 85–87)), and that Iraq benefited from Dr. Al Moumin's services, id., are “legal conclusions that need not be accepted as true” at the motion to dismiss stage, id. at 13. But the complaint alleges more than this. It alleges that Mr. al-Maliki was the Senior Vice President of Iraq, and, as Iraq itself notes, the Court can and should take judicial notice of the fact that he had served as “the Prime Minister (chief of state) of Iraq from 2006 until April 2014,” id. at 12. In short, the Court must take as a given that Mr. al-Maliki was a very senior official in the Iraqi government. As the D.C. Circuit has emphasized, at the motion to dismiss stage, “prior to any discovery,” the Court must “accord [Plaintiff] the benefit of all reasonable inferences,” Feldman, 879 F.3d at 351, and it is reasonable to infer that such a senior official was authorized to act on behalf of the State. Absent discovery, it is difficult to imagine how Plaintiff could have alleged more.

In this respect, Iraq argues that, even if the complaint adequately alleges that Mr. al-Maliki had authority to contract for services on behalf of Iraq and that the services at issue were, in fact, provided to Iraq, it does not expressly allege—and it is implausible to suggest—that he had actual (or even apparent) authority to speak for the Pension Body and to agree to release Plaintiff's pension. Dkt. 33 at 13. But that argument, once again, misunderstands the standard that applies at this early stage of the proceeding. Here, reasonably construed, the complaint alleges that Mr. al-Maliki was acting “in his capacity as an official and agent of the Republic of Iraq” when he “agreed” to arrange for the release of Dr. Al Moumin's pension in exchange for the consulting services that she promised to provide. Dkt. 28 at 20 (SAC ¶¶ 86–87). Where the facts are disputed and are not accessible to the plaintiff, the Court “must give the plaintiff ‘ample opportunity to secure and present evidence relevant to the existence of jurisdiction.’ ” Phoenix Consulting, Inc., 216 F.3d at 40 (quoting Prakash, 727 F.2d at 1179–80). Moreover, even if Mr. al-Maliki lacked authority to agree to the release of Dr. Al Moumin's pension, Plaintiff also asserts a claim for unjust enrichment, which is premised, in part, on the contention that Iraq received the benefit of her consulting services without providing her with any compensation—salary or pension—in return. Dkt. 28 at 32 (SAC ¶¶ 149–50). That claim, like the claim for quantum meruit that this Court addressed in Dentons, 410 F. Supp. 3d at 207, stands regardless of whether the government official had the requisite authority.

Finally, the parties devote considerable attention to the question whether the FSIA permits breach of contract suits when the government official lacked actual authority but acted with apparent authority to bind the foreign state. Decisions from this Court and from several other circuits have held that FSIA's commercial-activity exception requires that the plaintiff plausibly allege that the official had actual authority to enter the agreement. See SACE S.p.A v. Republic of Paraguay, 243 F. Supp 3d 21, 35 (D.D.C. 2017); TJGEM LLC v. Republic of Ghana, 26 F. Supp. 3d 1, 10 & nn.5–6 (D.D.C. 2013); Allfreight Worldwide Cargo, Inc. v. Ethiopian Airlines Enter., 307 F. App'x 721, 724 (4th Cir. 2009) (citing Velasco v. Indonesia, 370 F.3d 392, 400 (4th Cir. 2004)); see also Dale v. Colagiovanni, 443 F.3d 425, 429 (5th Cir. 2006) (“We agree with the Fourth and Ninth Circuits that an agent's acts conducted with the apparent authority of the state is insufficient to trigger the commercial exception to FSIA.”); Phaneuf v. Republic of Indonesia, 106 F.3d 302, 307–08 (9th Cir. 1997) (holding, in a case in which “[foreign] government officers exceeded the scope of their authority in issuing and certifying the validity of [certain promissory] notes,” that “[i]f the foreign state has not empowered its agent to act, the agent's unauthorized act cannot be attributed to the foreign state”). Other courts, however, have reached the opposite conclusion, see Devengoechea v. Bolivarian Republic of Venezuela, 889 F.3d 1213, 1227 (11th Cir. 2018); Themis Capital, LLC v. Democratic Republic of Congo, 881 F. Supp. 2d 508, 522–26 (S.D.N.Y. 2012); First Fidelity Bank v. Gov't of Antigua, 877 F.2d 189, 194 (2d Cir. 1989), and, to date, the D.C. Circuit has declined “to wade into the circuit split whether apparent authority is sufficient to waive sovereign immunity,” CapitalKeys, LLC v. Democratic Republic of Congo, No. 21-7070, 2022 WL 2902083, at *4 (D.C. Cir. July 22, 2022).

Like the D.C. Circuit, this Court need not resolve this question, at least at this point in the litigation. For the reasons explained above, the Court is persuaded that, even if actual authority is required, Plaintiff has alleged enough—although just enough—to state a claim. To be sure, several of her allegations are conclusory; she repeatedly alleges that Mr. Al-Maliki was “acting in his official capacity” and was acting as “an official and agent of the Republic of Iraq” when he entered into the agreement with Dr. Al Moumin. See, e.g., Dkt. 28 at 19–20, 30 (SAC ¶¶ 77, 78, 85, 87, 142). But evidence of Mr. al-Maliki's communications with other Iraqi officials is information that is uniquely in the possession of Defendant, and, to the extent Plaintiff's allegations raise questions of legal authority under Iraqi law, a complaint need not contain detailed recitations of law—including foreign law. Nor is it implausible to allege that the Senior Vice President (and former Prime Minister) of Iraq had actual authority to bind Iraq to pay a single pension in return for the provision of valuable services relating to Iraqi relations with the United States. See id. at 29–30 (SAC ¶¶ 79–82, 85–87). That inference is further bolstered by Mr. al-Maliki's alleged representations to Dr. Al Moumin, including his assurances that “he was working to get her pension released.” Id. at 21 (SAC ¶ 89). Drawing all reasonable inferences in Plaintiff's favor at this early stage of the proceeding, and without the benefit of discovery, those allegations suffice to aver that Mr. al-Maliki was acting with actual authority. See Feldman, 879 F.3d at 351.

At this point in the briefing, the parties at least gesture at treating Iraq's motion to dismiss as raising a factual—and not merely a facial—challenge to the Court's jurisdiction. Dr. Al Moumin, for her part, has submitted the declaration of Abed Awad, an attorney who specializes in “cases related to Islamic law and the law of Arab countries, including Iraqi law.” Dkt. 30-1 at 2 (Awad Decl. ¶ 1). According to Awad, under Iraq's “2005 Constitution and Article 5 of Regulation No. 1 of 2015, the Vice President is considered a deputy of the President.” Id. at 6 (Awad Decl. ¶ 17). In addition, “Article 5(2) expressly provides that [t]he Vice President of the Republic has one or more advisors who give him opinions and advice on issues decided by the Vice President of the Republic.” Id. (Awad Decl. ¶ 17) (alteration in original) (internal quotation marks, emphasis, and citation omitted). From this, Awad concludes that Mr. “al-Maliki [ ] had the authority to hire Dr. Al Moumin from May 2017 through June 2018 as an advisor pursuant to Article 5(2) of Regulation No. 1 of 2015.” Id. at 7 (Awad Decl. ¶ 18).

In response, Iraq suggests that whether Mr. al-Maliki had actual authority to retain official advisors is beside the point. The more relevant question, according to Iraq, is whether he had actual authority to commit the Pension Body to pay Dr. Al Moumin her pension. As Iraq observes, Awad addresses this question in the following paragraph of his declaration:

I have reviewed, and take as true for purposes of this declaration, paragraphs 84 through 87 of the Second Amended Complaint, which state (a) that the Senior Vice President, Mr. Nouri al-Maliki, offered Dr. Al Moumin a salary to act on a consultant for his office, (b) that Dr. Al Moumin understood that she could not accept both a salary and her pension under Iraqi law, (c) that Dr. Al Moumin requested that her pension be released in exchange for her services, and (d) that the Senior Vice President agreed to Dr. Al Moumin's request. Given the considerable discretion afforded the Vice President under Article 5 of Regulation No. 1 of 2015 to choose his own advisors, and since the Unified Retirement Law No. 9 of 2014 allowed Dr. Al Moumin to choose to receive her pension rather than another form of compensation, it is my professional opinion that the Senior Vice President had the authority to agree to pay Dr. Al Moumin's pension in exchange for her consulting services. See Article 5 of Regulation No. 1 of 2015, art. 5(2); see also Unified Retiremnt Law No. 9 of 2014, art. 24(1)(a) (providing that a retiree “may choose to receive the pension while remaining in the job without receiving an employment salary or [ ] allowance or monthly remuneration”) (emphasis added).

Id. at 9–10 (Awad Decl. ¶ 24). In Iraq's view, Awad's declaration is conclusory and riddled with non sequiturs, and it thus fails to “fill the gap” left by Plaintiff's failure to show that Mr. al-Maliki had actual authority to bind the Pension Body. Dkt. 33 at 13–14. In addition, Iraq argues that “[o]nly persons eligible for and receiving pension benefits who return to employment get to make the election whether to continue to receive the pension benefit or to suspend the pension and receive a salary in lieu of it,” and, here, the Pension Body determined that Dr. Al Moumin is ineligible to receive a pension. Id. at 14–15. Finally, Iraq requests the opportunity “to submit its own declaration of Iraqi law and to contest the contents of the Awad Declaration in the event that the Court orders discovery and further briefing or denies the Republic's Motion” to dismiss. Id. at 14 n.8.

The parties’ half step toward developing a factual record regarding Mr. al-Maliki's authority to bind Iraq is just that—a half step—and it provides the Court with far too little evidence or analysis of Iraqi law to draw any firm conclusions. Iraq is correct that the Awad declaration leaves several important questions unanswered. But, by the same token, Iraq has failed to offer sufficient evidence for the Court to conclude that Mr. al-Maliki was acting beyond the scope of his authority as the Senior Vice President of Iraq. Indeed, to the extent Iraq argues that Mr. al-Maliki lacked the authority to revive Dr. Al Moumin's pension because the Pension Body had determined that she was ineligible, that is one of the principal factual disputes raised by Plaintiff's complaint. She alleges that the Iraqi Supreme Court held that the order retroactively suspending certain pensions, including Dr. Al Moumin's, was unconstitutional and that, while others have received the benefit of that decision, for reasons that are “discriminatory and arbitrary,” she has not. Dkt. 28 at 16 (SAC ¶¶ 60–63). In addition, the record is devoid of evidence relating to discussions within the Iraqi government regarding Mr. al-Maliki's authority to enter the alleged agreement. As the D.C. Circuit has observed, in circumstances like these, “[t]he district court retains ‘considerable latitude in devising the procedures it will follow to ferret out the facts pertinent to jurisdiction,’ but it must give the plaintiff ‘ample opportunity to secure and present evidence relevant to the existence of jurisdiction.’ ” Phoenix Consulting, Inc., 216 F.3d at 40 (quoting Prakash, 727 F.2d at 1179–80). Here, the Court cannot resolve the question of Mr. al-Maliki's authority to bind the Republic without additional factual development.

* * *

The Court, accordingly, concludes that Plaintiff has adequately alleged that Mr. al-Maliki had actual authority to act on behalf of Iraq when he allegedly committed to reviving Dr. Al Moumin's pension in exchange for her services over a period of thirteen months. In addition, even if Mr. al-Maliki lacked actual authority to bind Iraq, Plaintiff might still be able to recover on an unjust enrichment (or quantum meruit) theory. Given these conclusions, the Court need not reach Plaintiff's alternative arguments, including her contention that apparent authority is sufficient or that the Iraqi government ratified Mr. al-Maliki's agreement by accepting her services without objection. For present purposes, it suffices to conclude that Plaintiff's complaint clears the modest hurdle of pleading facts that, if true, would support this Court's jurisdiction. Whether those allegations can be sustained, and whether Mr. al-Maliki had actual authority to bind the Iraqi government to pay Dr. Al Moumin her pension in exchange for her provision of services in the United States, must await resolution after the parties have had the opportunity to develop a more complete record.

B. Failure to State a Claim

Iraq raises two other arguments, neither of which requires extensive discussion.

First, Iraq argues that Plaintiff's claims are time-barred. Dkt. 29 at 26–28. Because a statute of limitations provides an affirmative defense, courts ordinarily “hesitate to dismiss a complaint on statute of limitations grounds.” Firestone, 76 F.3d at 1209–10. A plaintiff may, however, plead herself out of court, but only if “the complaint on its face is conclusively time-barred.” Bregman v. Perles, 747 F.3d 873, 875 (D.C. Cir. 2014) (quoting de Csepel v. Republic of Hungary, 714 F.3d 591, 603 (D.C. Cir. 2013)). This is not such a case.

Iraq asserts, and Plaintiff does not dispute, that Plaintiff's breach of contract, unjust enrichment, and conversion claims are governed by the District of Columbia's three-year statute of limitations. Dkt. 29 at 27. Plaintiff initiated this action on August 1, 2022, see Dkt. 1, and, thus, absent tolling, the statute of limitations would cover conduct dating back to August 1, 2019. Under D.C. law, “an action may not be brought with respect to a simple contract after the expiration of three years from the time the right to maintain the action accrues.” Yerrell v. EMJ Realty Co., 281 A.3d 594, 599 (D.C. 2022) (citing D.C. Code § 12-301(7)). An action “accrues, and the statute of limitations begins to run, at the time of the breach,” EastBanc, Inc. v. Georgetown Park Assocs. II, L.P., 940 A.2d 996, 1004 (D.C. 2008) (quoting 1 Calvin W. Corman, Limitation of Actions § 7.2.1, 482 (1991)), and a breach occurs when “a party fails to perform when performance is due,”—that is, upon a party's “unjustified failure to perform all or any part of what is promised in a contract entitling the injured party to damages,” Medhin v. Hailu, 26 A.3d 307, 310 (D.C. 2011) (first quoting EastBanc, 940 A.2d at 1004; and then quoting Fowler v. A&A Co., 262 A.2d 344, 347 (D.C. App. 1970)).

Here, given the Court's conclusion that Iraq is immune from suit for failing to provide Dr. Al Moumin with her pension benefits based on her years of employment in Iraq, her remaining claims turn solely on the premise that Mr. al-Maliki agreed in May 2017 to restore Dr. Al Moumin's pension in exchange for her provision of consulting services. The difficulty that Iraq faces in seeking to dismiss this formulation of Plaintiff's claims is that the complaint does not specify when Iraq was required to perform its end of the bargain, and, thus, at least on the face of the complaint, it is difficult to assess when the statute of limitations began to run. To be sure, the complaint does allege that Mr. al-Maliki “suspended his contacts with Dr. Al Moumin” in June 2018, Dkt. 28 at 21 (SAC ¶ 90), which might suggest that Dr. Al Moumin was on notice at that point that Iraq would not perform. But the Court must draw all reasonable inferences in Plaintiff's favor at this stage of the litigation, and the complaint also alleges that it was not until May 2021 that Iraq definitively announced that “it would continue to apply the unconstitutional law ․ to deprive Plaintiff of her pension.” Id. at 22 (SAC ¶ 97).

In addition to this difficulty, Plaintiff invokes the “lulling” and “equitable tolling” doctrines. Dkt. 30 at 44–47. She points, for example, to minutes from a session of the Iraqi legislature in September 2019, suggesting that payment of pensions, like hers, remained subject to debate. Dkt. 30-12 at 28. She also contends that she “did not know that Iraq was taking the position that her pension would never be released” until May 2021. Dkt. 30 at 46–47. Finally, she alleges that the breach (or unjust enrichment or conversion) is ongoing and that every year that goes by in which she does not receive her pension constitutes a separate and independently actionable breach or tort. Id. at 47–48. Although it is far from clear that these arguments will ultimately prevail, they are sufficient to show that the complaint is not, “on its face[,] conclusively time-barred.” Bregman, 747 F.3d at 875 (quoting de Csepel, 714 F.3d at 603).

Second, Iraq argues that Plaintiff has failed to state a claim because, “[n]o matter how she styles them—as a breach of contract, unjust enrichment, or conversion—her claims ․ are fundamentally inconsistent with her argument that the Republic wrongfully terminated a statutory pension right.” Dkt. 29 at 28. That argument, however, speaks exclusively to Plaintiff's first theory of relief—that is, that she dutifully made her pension contributions while employed in Iraq, and Iraq failed to comply with its corresponding statutory duty to make the required pension distributions when due. But the Court has already concluded that it lacks jurisdiction over those statutory claims. What remains are her claims premised on the separate contractual commitment, if any, to restore her pension distributions in exchange for the services that she provided in the United States, and her statutory argument does not speak to that theory of relief.

* * *

The Court will, accordingly, deny (without prejudice) Iraq's motion to dismiss on statute of limitations grounds and for failure to state a claim.

CONCLUSION

For the foregoing reasons, Defendant's facial motion to dismiss Plaintiff's complaint for lack of subject matter jurisdiction, Dkt. 29, is hereby GRANTED in part and DENIED in part. Because “foreign sovereign immunity provides not only a defense from liability but also a shield ‘from trial and the attendant burdens of litigation,’ ” Process & Indus. Ltd. v. Federal Republic of Nigeria, 962 F.3d 576, 581 (D.C. Cir. 2020) (quoting Kilburn v. Socialist People's Libyan Arab Jamahiriya, 376 F.3d 1123, 1126 (D.C. Cir. 2004)), the Court will stage proceedings and will provide the parties with the opportunity to develop a more complete jurisdictional record before turning, if at all, to the merits.

SO ORDERED.

FOOTNOTES

1.   Mr. al-Maliki served as Prime Minister of Iraq from May 2006 to September 2014. The Court refers to him as Senior Vice President al-Maliki or Vice President al-Maliki (for short) merely to highlight this role at the relevant time.

2.   Plaintiff also alleges that Iraqi pension payments “have other connections to the United States,” including through a “joint venture with QiCard,” which “has a business location in Sterling Heights, Michigan, to service Iraqi clients, including pensioners in the United States.” Dkt. 28 at 27 (SAC ¶ 129); see also id. at 27–28 (SAC ¶ 130) (addressing contact with a company that “advertise[d] release dates for pension[s]”). These allegations fail for the same reason that the principal allegations regarding the flow of funds through U.S. banking institutions fail.

3.   Although not crystal clear, it appears that Iraq intends to bring only a facial challenge to the Court's jurisdiction, as opposed to a factual challenge. Iraq asserts, for example, that “the Court should decide the Republic's motion to dismiss based on the papers” and that it “does not ․ dispute the factual basis for her jurisdictional allegations but instead assumes, for purposes of its Motion, that her factual allegations are true.” Dkt. 33 at 7–8. Iraq does, to be sure, rely on a declaration attesting to the accuracy of the translations of certain Iraqi laws, Dkt. 29-1, but Plaintiff does not dispute the accuracy of the translations, and the Court can take judicial notice of those laws. In any event, none of the materials that either side has submitted—or otherwise referenced—that are outside the four-corners of the complaint, and that are not subject to judicial notice, provide a sufficient basis to resolve the parties’ factual dispute.

RANDOLPH D. MOSS, United States District Judge