Af-Cap, Inc. v. Republic of Congo

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
March 5, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
Nos. 06-50200,
06-50202
Summary Calendar
AF-CAP, INC.,
Plaintiff-Appellant,
v.
REPUBLIC OF CONGO,
Defendant-Appellee.
Appeal from the United States District Court for the
Western District of Texas
1:01-CV-321
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
This litigation has a long history, as summarized most
recently in Af-Cap, Inc. v. Republic of Congo, 462 F.3d 417 (5th
Cir. 2006) (Af-Cap III). The dispute centers around Af-Cap’s
attempt to collect on a judgment against the Republic of Congo.
Af-Cap attempted to garnish several companies’ obligations to
*
Pursuant to 5th Cir. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
render oil to the Congo. The district court found that Texas
garnishment law does not authorize the garnishment of nonmonetary
obligations because they are not garnishable “effects.”1 In Af-Cap
III, we agreed with the district court that Texas law does not
allow for the garnishment of nonmonetary obligations and affirmed
the dissolution of garnishment writs targeted at the companies’ oil
obligations.
Af-Cap now appeals two district court orders that were not
directly at issue in Af-Cap III, one denying a motion for contempt
sanctions and the other refusing to enter new garnishment writs.
These appeals were held in abeyance while Af-Cap III was pending
because they require us to answer the same question addressed in
that appeal: Does Texas law permit the garnishment of nonmonetary
obligations? Our opinion in Af-Cap III answered that question in
the negative. Aware that our answer dooms their appeal of the
orders presently before us, Af-Cap now requests a second bite at
the apple and invites us to certify the question already decided in
Af-Cap III to the Texas Supreme Court. We decline the invitation.
The sole basis of Af-Cap’s appeal is to ask us to certify a
question that we have already answered as between these very
1
The Congo had the option of receiving royalty payments in
cash or “in kind” oil, and elected to receive them in kind.
Because the district court found that the oil obligations could
not be garnished, it issued a turnover order that would have
required the Congo to receive its payments in cash. We vacated
that order in Af-Cap III. 462 F.3d at 425–28.
2
parties. While the Texas Constitution allows this court to certify
questions to the Texas Supreme Court, certification is not “a
proper avenue to change our binding precedent.” Jefferson v. Lead
Indus. Ass’n, Inc., 106 F.3d 1245, 1247 (5th Cir. 1997). After
“this Court has settled on the state law to be applied in a
diversity case, the precedent should be followed by other panels
without regard to any alleged existing confusion in state law,
absent a subsequent state court decision or statutory amendment
which makes this Court's decision clearly wrong.” Lee v. Frozen
Food Express, Inc., 592 F.2d 271, 272 (5th Cir. 1979).
Af-Cap has not even attempted to point to a change in Texas
law since Af-Cap III that might call its holding into question. We
are therefore bound by Af-Cap III’s conclusion that nonmonetary
obligations are not garnishable under Texas law and find that
certification is inappropriate where we have authoritative
precedent on this precise issue.
IT IS ORDERED that appellant’s motion to certify a question to
the Texas Supreme Court is DENIED and, because it raises no issues
independent of its motion to certify, its appeal is DISMISSED.2
2
We note the district court’s recent colloquy expressing
hesitance to render a final judgment after we remanded this case
“for proceedings consistent with [an] opinion.” Af-Cap III, 462
F.3d at 430. That language was used out of deference to the
district court’s familiarity with this prolonged dispute and
should not be read to imply that unresolved issues necessarily
remain.
3