Atkinson, Jane E. v. Kestell, Robert J.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 8, 1998 Decided October 9, 1998

No. 97-7181

Janet E. Atkinson,

Appellant

v.

The Inter-American Development Bank, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(97cv00239)

Janet E. Atkinson, appearing pro se, argued the cause and

filed the briefs.

William D. Rogers argued the cause for appellee The

Inter-American Development Bank.* On the brief were

Alexander E. Bennett and Nancy L. Perkins.

Before: Edwards, Chief Judge, Silberman and Randolph,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Silberman.

Silberman, Circuit Judge: This case involves a well-known

method of enforcing a judgment and a little-known immunity

from judicial process. Appellant, in an effort to enforce two

state court judgments against her former husband by gar-

nishing his wages, sought a declaratory judgment in the

district court that her husband's employer, a financial institu-

tion protected by the International Organizations Immunities

Act, is not immune from garnishment proceedings under that

Act. The district court, concluding that the employer was

entitled to immunity under the Act, dismissed the declaratory

judgment action. We affirm.

I.

In 1993, a Maryland state court granted appellant Janet E.

Atkinson a divorce from her husband, Robert J. Kestell. As

part of the judgment of divorce, appellant was awarded

alimony of $1,350 per month for four years; child support of

$2,850 per month; $20,000 in attorney's fees; profits from

rental property in the amount of $1,221.91; and a monetary

award of $111,475.00 to compensate her for her interest in

marital property controlled by her husband. In 1996, the

state court found Kestell in contempt of court for failure to

pay alimony and child support during part of 1995, deter-

mined that his accrued arrearages totaled $12,600, and en-

tered judgment for that amount.

Appellant's attempt to enforce these judgments gave rise to

the instant litigation.1 Kestell moved to Jamaica, taking with

__________

* Robert J. Kestell was named as a defendant in appellant's

complaint in the district court, but did not appear at any stage in

the district court action or before us.

1 Kestell filed for Chapter 7 bankruptcy in Maryland shortly after

the 1995 divorce decree. Appellant was the largest unsecured

him all of his assets except one: the future wages that would

be owed to him by his employer, appellee Inter-American

Development Bank, an international financial institution head-

quartered in Washington, D.C. At Kestell's request and from

salary due him, the Bank has paid appellant a total of $4,700

per month--the $1,350 per month alimony and $2,850 per

month child support plus $500 per month toward his past

arrearages.2 But Kestell's cooperation goes only so far. He

has steadfastly refused to pay appellant the remainder of her

Maryland judgments, either from his Bank salary or otherwise.

Accordingly, appellant sought to augment Kestell's voluntary

monthly payments by garnishing the remainder of his salary.

Were Kestell's employer a run-of-the-mine private firm

located in the District of Columbia, a garnishment proceeding

would pose few difficulties; appellant would bring her Mary-

land judgments to D.C. Superior Court and proceed against

the garnishee (i.e., the employer) under the statutory scheme

found in D.C. Code ss 16-501 et seq. But the Bank is not a

run-of-the-mine firm; rather, it is an institution that has been

designated by executive order for protection as an interna-

tional organization under the International Organizations Im-

munities Act (IOIA), Ch. 652, Title I, 59 Stat. 669 (1945)

(codified as amended at 22 U.S.C. ss 288 et seq. (1994)). See

Exec. Order No. 10,873, 25 Fed. Reg. 3,097 (1960); Exec.

Order No. 11,019, 27 Fed. Reg. 4,145 (1962). The IOIA

entitles designated entities to "enjoy the same immunity from

suit and every form of judicial process as is enjoyed by

foreign governments, except to the extent that such organiza-

tions may expressly waive their immunity for the purpose of

any proceedings or by the terms of any contract." 22 U.S.C.

__________

creditor in that bankruptcy case. Kestell's bankruptcy petition was

ultimately dismissed under 11 U.S.C. ss 707(b) and 105(a) because

"the sole purpose of the filing was to avoid the payment of the sums

owing to his ex-wife on account of the state court judgment." In re

Kestell, 99 F.3d 146, 150 (4th Cir. 1996).

2 As a result of the instant litigation, Kestell has agreed to have

the Bank pay appellant an additional $1,710 per month from his

salary.

s 288a(b). And a provision of the Inter-American Develop-

ment Bank Act grants the Bank the right to remove any

action brought against it from state court into federal court.

22 U.S.C. s 283f.

This latter obstacle--the likely inability to proceed in state

court--would not of itself hinder appellant's garnishment

proceeding, as a federal court can adjudicate garnishment

proceedings by applying the local statutory scheme. See Fed.

R. Civ. P. 69(a). Recognizing the more substantial hurdle of

the Bank's immunity under the IOIA, appellant brought this

declaratory judgment action in the district court to establish

that the Bank had waived its immunity, and in the alternative

that the Bank's immunity even absent waiver does not pre-

clude a garnishment proceeding to enforce a divorce-related

judgment incurred by an employee of a designated interna-

tional organization such as the Bank. The Bank moved to

dismiss the action, invoking its status as a protected organiza-

tion under the IOIA and arguing that it had not waived its

immunity with respect to this type of proceeding. Reviewing

several cases in which we interpreted the extent to which the

articles of agreement of the Bank and similar international

organizations constitute a waiver of immunity, the district

court granted the Bank's motion.

II.

We begin, as the district court implicitly did, by assuming

arguendo that appellee is entitled to absolute immunity under

the IOIA and addressing appellant's contention that appellee

has waived its immunity with respect to a proceeding to

garnish one of its employee's wages.3 Specifically, appellant

points to the following provision in the Bank's articles of

agreement:

Actions may be brought against the Bank only in a court

of competent jurisdiction in the territories of a member

in which the Bank has an office, has appointed an agent

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3 Our assumption here is just that--an assumption. We take up

the scope of immunity under the IOIA in Part III.

for the purpose of accepting service or notice of process,

or has issued or guaranteed securities.

Agreement Establishing The Inter-American Development

Bank, Apr. 8, 1959, Art. XI, Section 3, 10 U.S.T. 3068, 3095.

In Lutcher S.A. Celulose e Papel v. Inter-American Develop-

ment Bank, 382 F.2d 454, 457 (D.C. Cir. 1967), we construed

this provision as not merely a "venue provision for actions

resulting from individual waivers; rather it is a provision

waiving immunity and laying venue for the suits permitted."

The parties disagree on whether this waiver is broad

enough to encompass a garnishment proceeding such as the

one appellant hopes to bring. While the provision might be

read to establish a blanket waiver of immunity from every

type of suit not expressly prohibited elsewhere in the articles

of agreement (only suits by members are expressly prohibit-

ed), we rejected that reading in Mendaro v. World Bank, 717

F.2d 610, 614-15 (D.C. Cir. 1983) (citing Lutcher, 382 F.2d at

456) (interpreting identical language in the agreement estab-

lishing the World Bank). Instead, we adopted a test for

determining when, in the context of a particular suit against

the Bank, Section 3 should be construed as a waiver of

immunity: "Since the purpose of the immunities accorded

international organizations is to enable the organizations to

fulfill their functions, applying the same rationale in reverse,

it is likely that most organizations would be unwilling to

relinquish their immunity without receiving a corresponding

benefit which would further the organization's goals." Id. at

617.4

We then applied this test to hold that the World Bank had

not waived its immunity from a Title VII sexual harassment

suit by an employee. See id. at 618-19. We observed that

__________

4 The agreement states that "[t]he purpose of the Bank shall be

to contribute to the acceleration of the process of economic develop-

ment of the member countries, individually and collectively." Arti-

cle I, s 1, 10 U.S.T. at 3072. The Bank's functions include promot-

ing the investment of public and private capital for development

purposes; utilizing its own capital and other funds raised by it;

encouraging private investment; assisting member countries in

efficient use of their resources; and providing technical assistance

for the implementation of development plans and projects. Id. s 2.

such a waiver would expose the Bank to disruptive interfer-

ence with its employment practices by requiring the Bank to

adopt the local employment policies of each of its member

countries, which would imply devastating administrative

costs. Nor would those costs be justified by the benefit of

attracting highly qualified staff members, in light of the

Bank's already established administrative tribunal to resolve

employees' contract grievances. We contrasted employee

suits with suits based on commercial transactions with the

outside world, where the benefits of a waiver would outweigh

the costs: "If this immunity were not waived[,] the Bank

would be unable to purchase office equipment or supplies on

anything other than a cash basis.... Such a restriction

would unreasonably hobble its ability to perform the ordinary

activities of a financial institution operating in the commercial

marketplace." Id. at 618; see also id. at 620 (explaining

Lutcher's holding that the Bank had waived suits by borrow-

ers on the ground that such waiver "would directly aid the

Bank in attracting responsible borrowers").

Appellant seeks to slip around the Mendaro test by assert-

ing that "[a] wage garnishment action ... does not threaten

the bank's ability to fulfill its purpose and the functions with

which it was entrusted." In her view, the Bank's immunity

should be construed as waived unless the particular type of

suit would impair the Bank's objectives; appellant contends

that compliance with a garnishment order is a "simple, cleri-

cal operation" that would not cause such impairment. We

think, however, that our formulation of the Mendaro test

supports the opposite default rule: the Bank's immunity

should be construed as not waived unless the particular type

of suit would further the Bank's objectives. In Mendaro, we

deemed the benefit of attracting talented employees by virtue

of permitting suits by employees to be minimal given that

employees already could invoke an internal grievance mecha-

nism. Here, waiver of immunity from garnishment proceed-

ings, unlike waiver of immunity from employee suits, provides

no conceivable benefit in attracting talented employees; in

fact, garnishment of an employee's wages makes the (pro-

spective) employee worse off, not better off. This clear lack

of benefit--indeed, disadvantage--of a waiver of immunity

from garnishment proceedings compels the conclusion that

Section 3 of the agreement should not be construed to waive

the Bank's immunity in this case.

Moreover, although we need not consider the costs side of

the balance, we are skeptical of appellant's view that the costs

imposed on a garnishee are minimal. In the analogous

context of attempts to garnish the wages of federal employ-

ees, the Supreme Court long ago observed that the expense

of defending such garnishment proceedings and complying

with garnishment orders "might be fatal to the public ser-

vice," Buchanan v. Alexander, 45 U.S. (4 How.) 20, 20 (1846),

a concern that has been echoed more recently, see Stena

Rederi AB v. Comision de Contratos, 923 F.2d 380, 392 (5th

Cir. 1991) (observing that if garnishment were allowed

"against foreign governmental agencies with operations in the

United States to prosecute claims against third parties, the

agencies would be required repeatedly to appear in court to

protect their own relations with the third parties"); 30 Am.

Jur. 2d Executions and Enforcement of Judgments s 646

(1994) (footnotes omitted) ("Garnishment statutes often exhib-

it concern for the protection of both the garnishee and other

claimants who may be affected by the litigation, since a

stranger to the proceedings in which a judgment has been

obtained is an innocent third party who may be exposed to

the inconvenience, hazards, or expense of extended litiga-

tion.").

III.

There remains the question whether the Bank as a matter

of statute enjoys immunity from garnishment proceedings. If

the answer is no, then it does not matter whether it can be

said that the Bank did not "waive" that immunity. The

district court thought it unnecessary to reach this issue, see

Mem. Op. (July 11, 1997) at 5 n.4 ("Because this case turns on

the extent to which the language of the Bank's Articles of

Agreement waives the Bank's immunity, it is not necessary to

consider whether the Bank would, in the absence of waiver,

enjoy absolute immunity under the IOIA, or the more re-

stricted immunity for noncommercial activities contemplated

by the Foreign Sovereign Immunities Act...."), undoubtedly

because of our similar statement in Mendaro, 717 F.2d at 618

n.54. We overlooked, however, that only if we concluded that

the Bank had waived its immunity would we avoid the need to

consider the scope of the Bank's immunity ab initio.

Appellant's first claim is that the IOIA does not contem-

plate immunity from garnishment proceedings. She argues

there is a de minimis exception to the immunity granted by

the IOIA, and that garnishment proceedings fall within that

exception because the burden of being a garnishee is minimal.

Yet even assuming the burden were minimal, a point on which

we expressed doubts above, we think the plain language of

the IOIA refutes the notion of a de minimis exception. The

IOIA speaks in terms of "immunity from suit and every form

of judicial process," 22 U.S.C. s 288a(b) (emphasis added),

language which admits of no exception for "unobtrusive"

judicial processes. Cf. Stena Rederi AB v. Comision de

Contratos, 923 F.2d 380, 392 (5th Cir. 1991) (holding that

garnishment proceedings are not excepted from the general

jurisdictional immunity provided to foreign sovereigns by 28

U.S.C. s 1604, which provides that "a foreign state shall be

immune from the jurisdiction of the courts of the United

States and of the States.").

Now to the more general, and more important, dispute

between the parties--the scope of the immunity provided by

the IOIA. The Bank submits that immunity under the IOIA

is absolute and therefore poses a bar to any suit, regardless

of its origin or subject matter. Appellant rejects that notion,

contending that the IOIA, by virtue of its reference to "the

same immunity from suit and every form of judicial process

as is enjoyed by foreign governments," 22 U.S.C. s 288a(b)

(emphasis added), incorporates the commercial activities ex-

ception to immunity,5 a central doctrine of the modern law

governing the immunity of foreign governments from judicial

__________

5 We explicitly left this issue open in Broadbent v. Organization

of Am. States, 628 F.2d 27, 32-33 (D.C. Cir. 1980).

process. She proceeds to argue that appellee's payment of

wages to Kestell constitutes a commercial activity, so that her

garnishment proceeding--a suit appellant depicts as arising

out of that activity--is not barred.

We begin with the text of the IOIA. The operative provi-

sion states:

International organizations, their property and their as-

sets, wherever located, and by whomsoever held, shall

enjoy the same immunity from suit and every form of

judicial process as is enjoyed by foreign governments,

except to the extent that such organizations may express-

ly waive their immunity for the purpose of any proceed-

ings or by the terms of any contract.

22 U.S.C. s 288a(b) (emphasis added). "International organi-

zation" is defined as:

a public international organization in which the United

States participates ... and which shall have been desig-

nated by the President through appropriate Executive

order as being entitled to enjoy the privileges, exemp-

tions, and immunities provided in this subchapter.

22 U.S.C. s 288. Once the President issues such an order,

his role under the IOIA does not cease. Rather, the Presi-

dent retains authority "by appropriate Executive Order" to

"withhold or withdraw from any such organization ... any of

the privileges, exemptions and immunities provided for in this

subchapter ... or to condition or limit the enjoyment by any

such organization ... of any such privilege, exemption, or

immunity." Id. And in the extreme case, the President is

authorized to "revoke the designation of any international

organization." Id.

The key phrase at issue in this case is the "same immunity

... as is enjoyed by foreign governments." 22 U.S.C.

s 288a(b) (emphasis added). Obviously, the 1945 Congress

was legislating in shorthand, referring to another body of

law--the law governing the immunity of foreign govern-

ments--to define the scope of the new immunity for interna-

tional organizations. But did the 1945 Congress mean to

refer to the law governing the immunity of foreign govern-

ments as it existed in 1945, or to incorporate as well--as

appellant claims--subsequent (i.e., post-1945) changes to that

body of law? When Congress enacted the IOIA in 1945,

foreign sovereigns enjoyed--contingent only upon the State

Department's making an immunity request to the court--

"virtually absolute immunity." Verlinden B.V. v. Central

Bank of Nigeria, 461 U.S. 480, 486 (1983); see Robert B. von

Mehren, The Foreign Sovereign Immunities Act of 1976, 17

Colum. J. Transnat'l L. 33, 41 (1978). In 1952, however, the

landscape changed when the State Department announced its

adoption of the restrictive theory of immunity, under which

immunity is confined to suits involving the foreign sovereign's

public acts, and does not extend to cases arising out of a

foreign state's strictly commercial acts. Verlinden, 461 U.S.

at 487 (citing Letter from Jack B. Tate, Acting Legal Adviser,

Department of State, to Acting Attorney General Philip B.

Perlman (May 19, 1952)). The State Department, following

this restrictive theory, continued to make suggestions of

immunity in appropriate cases, and the courts continued to

defer to those suggestions as they had done prior to 1952. In

1976, Congress addressed problems of political pressure and

non-uniformity inherent in this dual branch scheme by codify-

ing the principle of restrictive immunity and shifting respon-

sibility for its application to the courts. Foreign Sovereign

Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat. 2892

(codified as amended at 28 U.S.C. ss 1602-1611).

As support for her contention that the 1945 Congress

intended to incorporate in the IOIA post-1945 changes to the

law governing the immunity of foreign sovereigns, appellant

points us to this canon of interpretation: "A statute which

refers to a subject generally adopts the law on the subject as

of the time the law is enacted. This will include all the

amendments and modifications of the law subsequent to the

time the reference statute [i.e., the statute that makes the

reference] was enacted." 2B Sutherland Statutory Con-

struction s 51.08, at 192 (Norman J. Singer, 5th ed. 1992)

(footnotes omitted) (emphasis added). Before resorting to

this or any other canon, however, we must search for indica-

tions of legislative intent. As the Supreme Court has ob-

served, canons of statutory interpretation are principally

"useful in close cases, or when statutory language is ambigu-

ous." United States v. Monsanto, 491 U.S. 600, 611 (1989);

see also United States v. United Mine Workers of Am., 330

U.S. 258, 314 (1947) (Frankfurter, J., concurring) ("[A] canon,

like other generalities about statutory construction, is not a

rule of law. Whatever persuasiveness it may have in constru-

ing a particular statute derives from the subject matter and

the terms of the enactment in its total environment."); Unit-

ed States v. Espy, 145 F.3d 1369, 1371 (D.C. Cir. 1998) ("Since

we do not find the statute in the least bit ambiguous, we have

no need to employ, nor any legitimate purpose in employing,

canons of construction designed to reconcile confusing lan-

guage.").

The text of the IOIA unfortunately provides no express

guidance on whether Congress intended to incorporate in the

IOIA subsequent changes to the law governing the immunity

of foreign sovereigns. That does not mean, however, that the

statutory text is completely unhelpful. As explained above,

the IOIA sets forth an explicit mechanism for monitoring the

immunities of designated international organizations: the

President retains authority to modify, condition, limit, and

even revoke the otherwise absolute immunity of a designated

organization. See 22 U.S.C. s 288. It seems, therefore, that

Congress was content to delegate to the President the re-

sponsibility for updating the immunities of international orga-

nizations in the face of changing circumstances. This built-in

mechanism for updating the IOIA undermines appellant's

claim that Congress intended a different updating mecha-

nism: automatic alteration of the scope of immunity under

the IOIA in accordance with developments in the law govern-

ing the immunity of foreign sovereigns.

The legislative history supports this reading. The Senate

Report describes the provision delegating to the President

the authority to modify an organization's immunities as "per-

mit[ting] the adjustment or limitation of the privileges in the

event that any international organization should engage, for

example, in activities of a commercial nature." S. Rep. No.

861, 79th Cong., 1st Sess., at 2 (1945). Not only does this

description of the President's role suggest that responsibility

for modifying immunity granted by the IOIA rests with the

President rather than with an evolving separate body of law

(even if that separate body of law would be heavily influenced

by the President acting through the State Department), it

does so with specific regard to the notion of restrictive

immunity for commercial activities. The concerns that moti-

vated the State Department to adopt the restrictive immunity

approach to foreign sovereigns in 1952 (and Congress to

codify those principles in the FSIA in 1976) were apparently

taken into account by the 1945 Congress.

In light of this text and legislative history, we think that

despite the lack of a clear instruction as to whether Congress

meant to incorporate in the IOIA subsequent changes to the

law of immunity of foreign sovereigns, Congress' intent was

to adopt that body of law only as it existed in 1945--when

immunity of foreign sovereigns was absolute.6 (As we noted

above, absolute immunity under the IOIA is merely a baseline

that is subject to modification by executive order.) The

canon appellant urges on us is but one factor in discerning

Congress' intent, and we think it is outweighed by the text

and legislative history in this case.

There remains one final issue: the impact, if any, of the

1976 enactment of the FSIA. The FSIA explicitly makes

reference to the IOIA, a reference that appellant views as

providing support for her claim that the IOIA incorporates

post-1945 changes to the law governing the immunity of

foreign sovereigns. 28 U.S.C. s 1611 provides:

Notwithstanding the provisions of section 1610 of this

chapter, the property of those organizations designated

by the President as being entitled to enjoy the privileges,

exemptions, and immunities provided by the [IOIA] shall

not be subject to attachment or any other judicial pro-

cess impeding the disbursement of funds to, or on the

order of, a foreign state as a result of an action brought

in the courts of the United States.

__________

6 We accordingly disapprove of the contrary holding in Rendall-

Speranza v. Nassim, 932 F. Supp. 19, 23-25 (D.D.C. 1996).

Appellant draws two inferences, one general and one specific,

from this passage. The general is that Congress' reference

to the IOIA, in the course of this codification of the restrictive

immunity doctrine for foreign sovereigns, indicates that Con-

gress was aware of the impact of the restrictive immunity

doctrine on the IOIA; by choosing not to revise the IOIA,

Congress expressed its intent to apply restrictive immunity to

international organizations under the IOIA. We think this

argument has little merit. Congress does not express its

intent by a failure to legislate, United States v. Estate of

Romani, 118 S. Ct. 1478, 1488 (1998) (Scalia, J., concurring),

and even if it did, the will of a later Congress as to the

meaning of a law enacted by an earlier Congress is of little

weight, United States v. X-Citement Video, Inc., 513 U.S. 64,

77 n.6 (1994); Estate of Romani, 118 S. Ct. at 1489 (Scalia, J.,

concurring) ("If the enacted intent of a later Congress cannot

change the meaning of an earlier statute, it should go without

saying that the later unenacted intent cannot possibly do

so.").

Appellant's alternative argument is that 28 U.S.C. s 1611,

insofar as it prohibits "attachment or any other judicial

process impeding the disbursement of funds [held by an

IOIA-protected entity] to ... a foreign state as the result of

an action brought in the courts of the United States or of the

States" (emphasis added), gives rise to a negative implication

that funds held by an IOIA-protected entity for disbursement

to a non-foreign state (such as an employee) are not protected

from attachment or garnishment. As best we can tell, appel-

lant relies on the canon expressio unius est exclusio alterius

in making this argument. But we think the inference appel-

lant seeks to draw is rather strained. As we recently ob-

served, "the force [of the expressio unius canon] in particular

situations depends entirely on context." Shook v. District of

Columbia Fin. Responsibility and Management Assistance

Auth., 132 F.3d 775, 782 (D.C. Cir. 1998). Here, context

suggests, if anything, that the 1976 Congress wished to clarify

that international organizations deserve special protection.

In ss 1609 through 1611 of the FSIA, Congress focused on

the issue of when and how judgments could be enforced

against the property of foreign states. Section 1609 states

the general rule that the property of foreign states is immune

from attachment or execution, and s 1610 sets forth excep-

tions to the general rule that are roughly analogous to the

commercial activity exception to jurisdictional immunity in

s 1605. Section 1611 then provides that notwithstanding

s 1610, a judgment creditor cannot execute upon funds held

by international organizations for disbursement to the foreign

state judgment debtor. Thus, it is clear that Congress'

emphasis in these provisions of the FSIA was on the situation

of a foreign state as judgment debtor, not on other types of

judgment debtors. The FSIA is "beside the point" because it

does not "reflect any direct focus by Congress upon the

meaning of the earlier enacted provisions" of the IOIA.

Almendarez-Torres v. United States, 118 S. Ct. 1219, 1227

(1998) (citations omitted).

IV.

Even if we concluded that the IOIA's reference to the law

of immunity of foreign sovereigns is an evolving one that

incorporates the commercial activities exception to immunity,

we think appellant's garnishment proceeding would not come

within that exception. As relevant here, the FSIA's formula-

tion finds the commercial activities exception satisfied where

"the action is based upon a commercial activity carried on in

the United States by the foreign state." 28 U.S.C.

s 1605(a)(2). To determine whether an action is "based upon

a commercial activity," we look to "those elements of a claim

that, if proven, would entitle a plaintiff to relief under his

theory of the case." Saudi Arabia v. Nelson, 507 U.S. 349,

357 (1993).

A garnishment proceeding would require appellant to dem-

onstrate two principal elements. To obtain a writ of garnish-

ment, appellant would need to show the amount of the debt

owed by Kestell to her and the judgment giving rise to that

debt. D.C. Code s 16-501(c)(1)-(2). To levy the writ on the

Bank as garnishee, appellant would have to demonstrate that

the Bank owed wages to Kestell. Id. s 16-544. Neither of

these elements relates to a commercial activity of the Bank.

The judgment appellant seeks to enforce arises out of Kes-

tell's desertion of her and the resulting grant of divorce by

the Maryland state court. Kestell, though an agent of the

Bank, certainly cannot be said to have engaged in these

marital (or more accurately, "anti-marital") activities in his

official capacity as an agent of the Bank. See Jungquist v.

Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1028

(D.C. Cir. 1997) ("[T]he relevant inquiry in determining

whether an individual was acting in an official capacity focus-

es on the nature of the individual's alleged actions."). Nor is

the Bank's payment of wages to Kestell a commercial activity.

See Broadbent v. Organization of Am. States, 628 F.2d 27, 34

(D.C. Cir. 1980) (holding that an international organization's

employment of civil servants, regardless of their nationality,

is not a commercial activity).

Because neither of these principal elements of a garnish-

ment proceeding rests on a commercial activity of the Bank,

the commercial activities exception would not apply and the

Bank would remain immune from jurisdiction under the

general rule of 28 U.S.C. s 1604. The judgment of the

district court is

Affirmed.