Af-Cap, Inc. v. the Republic of Congo;

1This matter is decided by a quorum. See 28 U.S.C. § 46(d).
United States Court of Appeals
Fifth Circuit
F I L E D
November 1, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 03-50506
_____________________
AF-CAP, INC.
Plaintiff - Appellant
v.
THE REPUBLIC OF CONGO;
Defendant - Appellee
CMS OIL AND GAS CO.; ET AL.
Garnishees
CMS NOMECO CONGO INC.; THE NUEVO CONGO CO.; NUEVO CONGO LTD.
Garnishees - Appellees
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Case No. 03-50560
AF-CAP, INC.
Plaintiff - Appellant
v.
THE REPUBLIC OF CONGO
Defendant - Appellee
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Appeal from the United States District Court for the
Western District of Texas, Austin
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(Opinion September 17, 2004, 5th Cir.,____F.3d__.)
Before JOLLY and PRADO, Circuit Judges.1

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2Judge Jones did not participate in the consideration of the
petition for rehearing en banc.
2
PER CURIAM:2
IT IS ORDERED that Appellee’s motion for reconsideration of
the Court’s order of September 29, 2004, granting Appellant’s
motion to issue the mandate forthwith is DENIED.
IT IS FURTHER ORDERED that Appellee’s alternative motion to
recall the mandate pending consideration of the petition for
rehearing and petition for rehearing en banc is GRANTED.
IT IS FURTHER ORDERED that the Petition for Rehearing is
GRANTED. Our decision that the Garnishees’ intangible obligations
to the Congo had been used for commercial purposes in the United
States in the past, and thus were subject to garnishment by Af-Cap,
was based on the past use of those obligations to settle a debt
owed by the Congo to National Union Fire Insurance Company
(“NUFI”). We clarify that our opinion should not be interpreted to
permit garnishment of obligations that were not used in the past
for commercial purposes in the United States. Thus, to the extent
that tax obligations were not used to satisfy the NUFI debt, such
obligations cannot be reached by the garnishment proceedings in
this case. Instead, the Garnishees’ obligations to the Congo are
subject to garnishment by Af-Cap only to the extent that those
obligations were used in the past to settle the NUFI debt,

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irrespective of whether the Garnishees and the Congo label those
obligations “taxes” or “royalties”. We entrust to the sound
discretion of the district court the implementation of the clear
intent of our opinion. No member of this panel nor judge in
regular active service on the court having requested that the court
be polled on Rehearing En Banc, (FED. R. APP. P. and 5TH CIR. R. 35)
the Petition for Rehearing En Banc is DENIED.
IT IS FURTHER ORDERED that Appellee’s motion for costs,
incorporated in the petitions for rehearing, is DENIED.
IT IS FURTHER ORDERED that the mandate shall issue forthwith.
SO ORDERED.

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