Aenergy, S.a. v. Republic of Angola

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 6, 2024 Decided December 20, 2024
No. 23-7160
AENERGY, S.A.,
APPELLANT
v.
REPUBLIC OF ANGOLA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-02514)
Vincent Levy argued the cause for appellant. With him on
the briefs was Kevin D. Benish.
Michael D. Ehrenstein argued the cause for appellees.
With him on the briefs was Kiran N. Gore.
Before: HENDERSON, PILLARD and CHILDS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Aenergy,
S.A. (Aenergy) seeks damages from Angola for unpaid work

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in a breach-of-contract suit over power turbines to be installed
in Angola. Aenergy earlier sued in the Southern District of
New York, which dismissed its case on forum non conveniens
grounds. Following an unsuccessful appeal to the Second
Circuit, Aenergy tried its luck again in this jurisdiction after
trimming its complaint to drop various defendants and claims.
The district court dismissed Aenergy’s suit on issue preclusion
grounds and, alternatively, under a fresh forum non conveniens
analysis.
The issue in this case remains the same—whether Aenergy
may litigate the subject matter of the dispute in Angola,
providing it with at least some relief. Aenergy’s having
trimmed certain claims and defendants from its complaint only
reinforces that Angola is the proper forum for this quarrel.
Accordingly, we affirm the district court’s dismissal based on
issue preclusion.
I. BACKGROUND
This background is taken from Aenergy’s complaint,
documents attached to or incorporated in the complaint and
matters of which the Court may take judicial notice, including
public records referred to in the complaint and integral to
Aenergy’s claim. See Langeman v. Garland, 88 F.4th 289,
291–92 (D.C. Cir. 2023). “Because this case was resolved on
a motion to dismiss, we accept the amended complaint’s factual
allegations as true and construe all reasonable inferences in the
plaintiff[’]s[] favor.” Valambhia v. United Republic of
Tanzania, 964 F.3d 1135, 1137 (D.C. Cir. 2020).
A.
Aenergy is an Angolan energy company owned by a
Portuguese citizen. Aenergy entered into contracts worth over
$1 billion with utility subsidiaries of the Angolan Ministry of

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Energy and Water (MINEA) to construct, supply and maintain
power plants and water infrastructure in Angola. To fulfill
these contracts, the parties worked with General Electric
Company (GE). Aenergy agreed to install turbines
manufactured by GE Packaged Power, Inc. (GE Power) and
Angola obtained an over $1 billion credit line from GE Capital
EFS Financing, Inc. (GE Capital) to finance the projects.
Although the MINEA contracts called for eight turbines,
Aenergy contracted to buy fourteen turbines from GE in
anticipation of future contracts with Angola. To simplify the
transfer of funds, the credit line provided for direct payments
from GE Capital to Aenergy and GE Power.
Aenergy began performance and, in December 2017,
Angola drew $644 million on the credit facility to satisfy
invoices from Aenergy. However, the relationship soon
soured, which Aenergy alleges was due to “a ‘lie’ based on a
GE accounting error.” Aenergy, S.A. v. Republic of Angola
(Aenergy III), 678 F. Supp. 3d 147, 157 (D.D.C. 2023).
Aenergy laid out the alleged lie in more detail in its earlier suit
in the U.S. District Court for the Southern District of New York
(SDNY). There, Aenergy claimed that a risk calculation error
by GE led to two GE executives forging letters that purported
to amend the Aenergy-MINEA contracts to include four more
turbines. Aenergy, S.A. v. Republic of Angola (Aenergy I),
No. 20-cv-3569, 2021 WL 1998725, at *3–4 (S.D.N.Y. May
19, 2021). The forgeries led GE to believe it had been paid for
twelve out of fourteen turbines but Aenergy believed it had
authorized GE Capital to pay GE Power on its behalf for only
eight. Allegedly, MINEA initially denounced the forgeries but
the Angolan government later chose to terminate the Aenergy-
MINEA contracts and transfer the remaining work to GE,
justifying the termination by citing irregularities in Aenergy’s
acquisition of extra turbines. Angolan authorities also seized
from Aenergy the four turbines that GE claimed MINEA had

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paid for and the Angolan government terminated Aenergy’s
separate power plant concession, with MINEA there again
pointing to irregularities.
B.
Aenergy then pursued several legal avenues seeking
redress. In Angola, Aenergy first appealed Angola’s decision
to terminate the contracts to MINEA, which denied the appeal,
concluding that Aenergy was responsible for the forgeries.
Aenergy then appealed that decision to the Angolan president
without success. Next, Aenergy appealed to the Supreme
Court of Angola, requesting that the MINEA contracts “be
considered in force.” S.A. 279. Aenergy also stated that it
would “not fail, at its own time and moment, to strive for the
reimbursement of an indemnity amount.” Id. That case was
pending during much of the ensuing U.S. litigation but, while
Aenergy III was on appeal in this Court, the Supreme Court of
Angola dismissed the suit and declared the Angolan
government’s actions valid. Aenergy 28(j) Letter, Ex. A (Aug.
30, 2024).
In the United States, Aenergy sued the Republic of
Angola, MINEA, the utility subsidiaries, the Angolan Ministry
of Finance (the Angolan Defendants) and three GE defendants
in the SDNY. Aenergy I, 2021 WL 1998725, at *1. Aenergy
brought six claims against the Angolan Defendants: breach of
contract as to the MINEA contracts and the concession, unjust
enrichment, taking of physical assets, taking of intangible
assets and conversion. Aenergy alleged two claims against
both sets of defendants: accounting and aiding and abetting.
Against the GE defendants only, Aenergy asserted claims of
tortious interference with contract and with prospective
business relations.

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The court dismissed the case on forum non conveniens
grounds. Id. at *20. As relevant here, the court emphasized
that an uncontested declaration of an Angolan law expert stated
that Aenergy could bring “similar claims” in Angola and that
the claims involved “humdrum commercial-law principles,”
which “seem to exist in most jurisdictions” and some of which
were “brought under Angolan law.” Id. at *12. The court
highlighted that even if Aenergy could not bring breach of
contract claims in Angola because the statute of limitations had
run, it could still bring “claims for unjust enrichment, taking of
physical assets in violation of international law, taking of
intangible assets in violation of international law, conversion,
tortious interference with contract, tortious interference with
prospective business relations, accounting, and aiding and
abetting.” Id. at *13. Therefore, Angola still “permit[ted]
litigation of the subject matter of the dispute.” Id. (quoting
Monegasque De Reassurances S.A.M. v. Nak Naftogaz of Ukr.,
311 F.3d 488, 499 (2d Cir. 2002)).
The Second Circuit affirmed that judgment. Aenergy, S.A.
v. Republic of Angola (Aenergy II), 31 F.4th 119, 135 (2d Cir.
2022). It explained that “the availability of an adequate
alternative forum does not depend on the existence of the
identical cause of action in the other forum, nor on identical
remedies” provided that “the essential subject matter of the
dispute can be adequately addressed” in the alternative forum.
Id. at 130–31 (quotations omitted). The court emphasized that
even if Aenergy could not recover on its breach-of-contract
claim, it had brought a lawsuit in Angola, “allowing the
Angolan court to address the essential subject matter of the
dispute.” Id. at 131. The Second Circuit also denied Aenergy’s
requests for rehearing and the U.S. Supreme Court denied
certiorari. Aenergy III, 678 F. Supp. 3d at 158.

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Next, Aenergy sued the Angolan Defendants in federal
district court here in the District of Columbia for breach of
contract relating to unpaid work and services, seeking
compensatory damages. J.A. 13. The district court
“credit[ed]” Aenergy’s allegation that its breach-of-contract
claim was barred from being brought in Angola by a
nonwaivable statute of limitations. Aenergy III, 678 F. Supp.
3d at 164. Nevertheless, the court dismissed the case,
concluding that Aenergy was precluded from relitigating the
earlier decisions in the Second Circuit and, in the alternative,
that the case should be dismissed on forum non conveniens
grounds. Aenergy III, 678 F. Supp. 3d at 158. Aenergy timely
appealed.
II. ANALYSIS
“[A] federal court has leeway ‘to choose among threshold
grounds for denying audience to a case on the merits.’”
Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S.
422, 431 (2007) (quoting Ruhrgas AG v. Marathon Oil Co.,
526 U.S. 574, 585 (1999)). Here, the district court dismissed
Aenergy’s suit on both issue preclusion (or collateral estoppel)
and forum non conveniens grounds. Because we hold that
issue preclusion applies, we need not reach its new forum non
conveniens analysis. We review a district court’s
determination of issue preclusion de novo. GSS Group Ltd. v.
Nat’l Port Auth. of Liber., 822 F.3d 598, 604–05 (D.C. Cir.
2016).
A.
Issue preclusion means that “the determination of a
question directly involved in one action is conclusive as to that
question in a second suit.” B&B Hardware, Inc. v. Hargis
Indus., Inc., 575 U.S. 138, 147 (2015) (quotation omitted).
This doctrine promotes the goals of “protect[ing]” against “the

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expense and vexation attending multiple lawsuits, conserv[ing]
judicial resources, and foster[ing] reliance on judicial action by
minimizing the possibility of inconsistent verdicts.” Id.
(quoting Montana v. United States, 440 U.S. 147, 153–54
(1979)). There are three conditions for issue preclusion to
apply:
First, the same issue now being raised must
have been contested by the parties and
submitted for judicial determination in the prior
case. Second, the issue must have been actually
and necessarily determined by a court of
competent jurisdiction in that prior case. Third,
preclusion in the second case must not work a
basic unfairness to the party bound by the first
determination.
In re Subpoena Duces Tecum Issued to Commodity Futures
Trading Comm’n, 439 F.3d 740, 743 (D.C. Cir. 2006) (quoting
Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C.
Cir. 1992)). The party invoking collateral estoppel bears the
burden of establishing that its conditions have been satisfied.
Id.
“Identity of the issue is established by showing that the
same general legal rules govern both cases and that the facts of
both cases are indistinguishable as measured by those rules.”
13C Charles A. Wright & Arthur R. Miller, Federal Practice
and Procedure (Wright & Miller) § 4425 (Rev. 4th ed. June
2024). The SDNY dismissed Aenergy’s suit and the Second
Circuit affirmed on forum non conveniens grounds so that is
the issue Angola must establish is the same for issue preclusion
to apply. See 8A Wright & Miller § 3828.5 (“If one federal
court dismisses an action on the basis of forum non conveniens,
a second federal court in which the case is brought is bound by

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that decision, and should not relitigate it.”); 13D Wright &
Miller § 4436 (“[O]rdinarily [forum non conveniens] cannot
work issue preclusion as to other courts because the
convenience issues are intrinsically different, but issue
preclusion is appropriate if the issue actually remains the
same.”).
“A party seeking dismissal for forum non conveniens bears
the burden of showing both (1) that an adequate alternative
forum is available to hear the dispute, and (2) if so, that the
balance of certain public and private interest factors strongly
counsels in favor of trying the dispute in the alternative forum.”
In re Air Crash over the S. Indian Ocean on March 8, 2014,
946 F.3d 607, 612 (D.C. Cir. 2020). “The doctrine of forum
non conveniens is to be applied only in rare cases, and only
where the defendant meets a heavy burden of showing that suit
in the United States is so inconvenient as to be harassing,
vexing, or oppressive.” Shi v. New Mighty U.S. Tr., 918 F.3d
944, 953 (D.C. Cir. 2019).
An alternative forum is available if all defendants are
amenable to process in another jurisdiction. See Piper Aircraft
Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981); 8A Wright &
Miller § 3828.3. An alternative forum is not available if a
claim would be barred at the time of the lawsuit. See Norex
Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 158–59 (2d
Cir. 2005) (holding that an alternative forum is not available if
an earlier judgment precludes the issue); Compania Naviera
Joanna SA v. Koninklijke Boskalis Westminster NV, 569 F.3d
189, 202 (4th Cir. 2009) (holding that an alternative forum is
not available if the statute of limitations has expired);
Fireman’s Fund Ins. v. Thyssen Mining Constr. of Can., Ltd.,
703 F.3d 488, 496 (10th Cir. 2012) (same).

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As to adequacy, the Court asks whether “the remedy
offered by the other forum is clearly unsatisfactory,” as, for
example, “where the alternative forum does not permit
litigation of the subject matter of the dispute.” Piper Aircraft,
454 U.S. at 254 n.22 (emphasis added). “[A] district court acts
within its discretion in deeming [another] forum an adequate
alternative to a U.S. court” if it “would provide a plaintiff at
least some remedy.” In re Air Crash, 946 F.3d at 613. “[T]he
defendant faces a rather low bar for establishing that the
alternative forum is adequate.” 8A Wright & Miller § 3828.3.
B.
Aenergy concedes that it brought a breach-of-contract
claim for unpaid work in the SDNY. However, Aenergy now
argues that the same issue was not contested and submitted for
determination in the New York litigation because the briefs
filed in the Second Circuit focused on the Angolan
government’s termination of the contract rather than the unpaid
work claim. Aenergy’s narrow framing mischaracterizes how
the scope of an issue is defined for the forum non conveniens
analysis. As to adequacy, under Piper Aircraft an alternative
forum may be deemed adequate if it permits litigation of the
“subject matter of the dispute.” 454 U.S. at 254 n.22. Here,
the SDNY emphasized that Aenergy could bring eight claims
on the common subject matter other than breach of contract in
Angola. Aenergy I, 2021 WL 1998725, at *13. And the
Second Circuit agreed. Aenergy II, 31 F.4th at 131. In other
words, Angola “would provide [Aenergy] at least some
remedy.” In re Air Crash, 946 F.3d at 613. That describes an
adequate forum.
As to the public and private interest factors, Aenergy relies
on two out-of-circuit cases for the proposition that its
“trimmed-down, new suit” does not raise the same issue as the

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New York litigation. Appellant Br. 22. Both cases are
inapposite. In Conflict Kinetics, Inc. v. Bagira Sys., Ltd., No.
22-2000, 2024 WL 339347 (4th Cir. Jan. 30, 2024), the Fourth
Circuit vacated a district court’s application of issue preclusion
after the plaintiff refiled a lawsuit that had been dismissed in
the same district after adding two more defendants. The court
highlighted that, in some circumstances, additional defendants
may change the forum non conveniens analysis because the
alternative forum must be available, adequate and convenient
for all defendants. Id. at *3; see also 8A Wright & Miller
§ 3828.3 (alternative forum must be available as to all parties).
True enough. Even so, in that case the plaintiff added a U.S.
defendant, potentially making the United States a more
convenient forum. By contrast, here Aenergy dropped the GE
defendants, a fortiori making Angola the more convenient
forum.
Aenergy also points to J.C. Renfroe & Sons, Inc. v.
Renfroe Japan Co., No. 3:08-cv-31-J-32MCR, 2009
WL 55010 (M.D. Fla. Jan. 7, 2009), in which the district court
declined to apply issue preclusion to a case refiled before the
same judge after being dismissed on forum non conveniens
grounds. The court highlighted that the second complaint
omitted the previous tort and statutory claims, leaving only
breach-of-contract claims, thereby reducing the scope of
admissible evidence. Id. at *4. Insofar as that case suggests
that a plaintiff may evade the application of issue preclusion to
an earlier forum non conveniens dismissal simply by dropping
some claims, we are not bound by it. However, Renfroe also
emphasized that the tort claims appeared to be governed by
Japanese law and involved documents in Japanese located in
Japan but the contract claims were governed by U.S. law and
involved documents in English located in the United States. Id.
at *2, 5, 7. Here, the new complaint still pertains to Angolan
contracts governed by Angolan law and implicates both

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documents that would need translation from Portuguese and
witnesses who would need interpreters. J.A. 131–34. In other
words, there would still be significant cost and inconvenience
associated with litigating the case in the United States. The
analysis of the public and private interest factors, then, remains
the same.
Aenergy also claims the same issue was not actually and
necessarily determined in the New York suit. As Aenergy
points out, the Second Circuit’s ruling on Angola’s adequacy
as an alternative forum emphasized that Aenergy was pursuing
litigation in the Supreme Court of Angola as a reason for
finding that forum adequate. Aenergy II, 31 F.4th at 131
(“[E]ven if [Aenergy] cannot recover damages on its breach of
contract claim against Angola, it has sought equitable contract
remedies in Angola.”). Contrary to Angola’s assertions
otherwise, the case before the Supreme Court of Angola was
an administrative action seeking contract reinstatement rather
than a suit for damages. See S.A. 279. Yet the Second Circuit
emphasized that the district court had “correctly noted” that
Aenergy brought eight other claims against Angola apart from
the breach-of-contract claim, all of which could be brought in
Angola and were separate from the administrative proceedings
before the Supreme Court of Angola. Aenergy II, 31 F.4th at
131. The Second Circuit thus explicitly affirmed the SDNY’s
judgment “[n]otwithstanding the asserted unavailability of
breach of contract damages against Angola.” Id. Therefore,
the New York litigation actually and necessarily resolved the
issue of adequacy regarding Aenergy’s breach-of-contract
claim because that claim falls within a broader set of claims
and potential remedies that can be brought in Angola.
Aenergy does not assert that applying issue preclusion
here works any basic unfairness, thus forfeiting that argument.
See, e.g., TIG Ins. v. Republic of Argentina, 110 F.4th 221, 239

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(D.C. Cir. 2024). In any event, the district court correctly
found there was no basic unfairness because Aenergy had
similar incentives to litigate the earlier case, the stakes here are
not higher and there is no risk that the earlier proceedings were
seriously defective. J.A. 125–26.
C.
After briefing and before oral argument in this appeal, the
Supreme Court of Angola issued a decision and judgment in
Aenergy’s administrative action against Angola. See Aenergy
28(j) Letter, Ex. A (Aug. 30, 2024). Relevant to the preclusive
force of the New York courts’ forum non conveniens analysis,
the court stated that any breach of contract claim would have
to be “assessed in a separate action” because the court was
limited to “analyz[ing] the legality . . . of [Angola’s]
administrative acts.” See Aenergy Translation Letter, Ex. B at
214 (Sept. 27, 2024). Ultimately, the court declared MINEA
and the Angolan president’s actions regarding the Aenergy
contracts to be valid. See id. at 221. Therefore, the court
dismissed Aenergy’s suit. Id.
Aenergy contends that the decision by the Supreme Court
of Angola eliminates the only procedural pathway to relief
relied upon by the Second Circuit and the district court below,
thereby altering the forum non conveniens analysis and
rendering issue preclusion inapplicable. Not so. As explained
above, the SDNY and Second Circuit also highlighted that
there were eight other claims that Aenergy could bring in
Angola and so the forum non conveniens analysis did not turn
solely on the Supreme Court of Angola litigation or its
resolution.
However, in Montana v. United States, the Supreme Court
said that “significant changes in controlling facts or legal
principles” occurring after an earlier judgment may “warrant

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an exception to the normal rules of preclusion.” 440 U.S. at
155, 157, cited by Herrera v. Wyoming, 587 U.S. 329, 343
(2019). The Supreme Court continued that “changes in facts
essential to a judgment will render collateral estoppel
inapplicable in a subsequent action raising the same issues.”
Id. at 159.
That principle does not apply here. The fact that Aenergy
was then still litigating its administrative action in the Supreme
Court of Angola was not “essential to the judgment” of the
SDNY or of the Second Circuit. Rather, those courts held that
Aenergy might still pursue eight other claims in Angola, which
offered it “at least some remedy” and was enough to establish
Angola as an adequate alternative forum. In re Air Crash, 946
F.3d at 613. Because those facts have not changed, the
adequacy analysis has not changed and issue preclusion applies
to the SDNY’s and Second Circuit’s adequacy holding. In any
event, the relevant question for the adequate forum analysis is
whether a party can bring a claim in the alternative forum, not
whether the party will ultimately prevail in the alternative
forum. Aenergy’s loss at the Supreme Court of Angola
similarly did not change the answer to that question and thus
did not affect the applicability of issue preclusion to the New
York courts’ forum non conveniens determination.
* * *
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.

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