Leidos, Inc. v. Hellenic Republic , 881 F.3d 213 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 6, 2017 Decided February 2, 2018
No. 17-7082
LEIDOS, INC., FORMERLY KNOWN AS
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION,
APPELLEE
v.
HELLENIC REPUBLIC,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-01070)
Neal Goldfarb argued the cause and filed briefs for the
appellant. Max F. Maccoby entered an appearance.
William T. O’Brien argued the cause and filed the brief for
the appellee. Allen B. Green and Ivan W. Bilaniuk were with
him on brief.
Before: HENDERSON, TATEL and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: This case is
a testament to the rise of the dollar—and the precipitous decline
of the euro—over the last four years. In July 2013, Leidos,
Inc. (Leidos)1 won an arbitration award against the Hellenic
Republic 2 resulting from security work it performed in
connection with the 2004 Summer Olympic Games held in
Athens, Greece. The award consisted of €39,818,298 in
damages and $162,500 in costs. Upon receiving the award,
Leidos promptly petitioned the United States District Court for
the District of Columbia to confirm and enforce it. After
approximately three years of intermittent stays, status updates,
motions and parallel litigation in Greek courts, the district court
confirmed the arbitration award and entered judgment—in
euros—in favor of Leidos.
Pursuant to Federal Rule of Civil Procedure 59(e), Leidos
then moved to convert the award into U.S. dollars based on the
exchange rate ($1.3017 to €1) on July 2, 2013, the date of the
original arbitral award. The district court granted the motion.
Because the exchange rate had dropped 19.1 per cent from the
award date to the judgment date ($1.0533 to €1 on January 6,
2017), the total dollar value of the conversion increased the
value of the arbitral award by approximately $11.9 million.
The Hellenic Republic appealed. For the following reasons,
we conclude that the district court mistakenly granted Leidos’s
motion and we reverse.
1
When it entered into the contract with the Hellenic Republic
(and when it initiated this lawsuit), Leidos was named the Science
Applications International Corporation. Its changed name does not
carry any legal significance.
2
The Hellenic Republic is popularly known as Greece.
3
I.
In May 2003, the Hellenic Republic contracted with
Leidos to provide a public-safety infrastructure system for the
2004 Athens Summer Olympics. The contract was written in
Greek and provided for payment in euros. After a series of
disputes regarding the Hellenic Republic’s acceptance of the
infrastructure system, the parties agreed to a contract
modification (Modification No. 5) that included certain
dispute-resolution provisions, specifically:
Any claim or dispute arising from or related to
the current Contract or its interpretation is to be
finally resolved by Arbitration according to the
Rules of Arbitration of the International
Chamber of Commerce (ICC) and shall be tried
under Greek Law. Arbitration shall take place
in Athens, Greece, by three Greek Arbitrators.
Joint Appendix (JA) 101. Modification No. 5 further provided
that Greek was the language of the arbitration and that the result
of the arbitration was final and binding on both parties. Id.
The parties’ contractual disagreements continued after
Modification No. 5 and, on June 16, 2009, Leidos filed a
Request for Arbitration. The arbitral tribunal heard the case
over eight days in May 2012. On July 2, 2013, the tribunal
issued its final award, which ordered the Hellenic Republic to
pay Leidos: (1) €39,818,298 in damages; (2) $162,500 in
arbitration costs; and (3) simple interest of 6 per cent beginning
July 11, 2013, the date the award was served on the Hellenic
Republic. JA 19.
On July 12, 2013, Leidos filed a Petition to Confirm
Arbitration and to Enter Judgment in the district court for the
District of Columbia. On September 5, 2013, the Hellenic
4
Republic filed a parallel suit in the Athens Court of Appeals
seeking to set aside the arbitration award. The Hellenic
Republic subsequently answered Leidos’s complaint in district
court, alleging six affirmative defenses under the Federal
Arbitration Act, 9 U.S.C. §§ 201 et seq. On March 28, 2014,
the district court granted the parties’ joint motion to stay
proceedings pending the resolution of the Greek litigation.
Several months later, Leidos submitted in district court two
proposed orders seeking to confirm the award: one on
September 8, 2014 and the other on December 17, 2014. The
district court did not rule on either of the proposed orders,
instead holding the case in abeyance while the Greek litigation
ran its course.
While the case was stayed in the United States, the Greek
litigation made its way through that judicial system. First, the
Athens Court of Appeals set aside the arbitration award,
reasoning that the parties’ contract was tainted by the
corruption of Leidos’s subcontractor, Siemens. Leidos
appealed that decision to the Greek Supreme Court, which
unanimously reversed the Athens Court of Appeals and, on
September 22, 2016, reinstated the arbitral award.3
On November 3, 2016, the district court asked the parties
their positions on the effect of the Greek Supreme Court
decision. Neither party mentioned currency conversion in
their respective responses. On January 5, 2017, the court
granted Leidos’s Petition to Confirm the Arbitration Award
and to Enter Judgment. The next day, the court clerk entered
judgment in favor of Leidos in the amount of €39,818,298.
3
The Greek Supreme Court remanded the case to the Athens
Court of Appeals for a new hearing consistent with its decision. The
hearing took place on November 16, 2017 and the result remains
pending.
5
The judgment form made no mention of interest or costs.
Thereafter, Leidos moved to correct the judgment under Rule
60(a) and to alter or amend the judgment under Rule 59(e). It
requested $162,500 in costs, as awarded by the tribunal, as well
as pre- and post-judgment interest as to damages and costs. It
further requested that the court alter or amend the entry of
judgment to convert the total award into U.S. dollars.
The district court granted Leidos’s motion in full,
correcting “clerical mistakes” under Rule 60 and curing “clear
error” or “manifest injustice” under Rule 59(e). In re
Arbitration of Certain Controversies between Sci. Applications
Int’l Corp. & Hellenic Republic, 249 F. Supp. 3d 300, 302-03
(D.D.C. 2017). Regarding the clerical mistakes, the district
court amended the judgment to include $162,500 in costs (as
provided in the original arbitral award) plus $34,031.51 in
interest on that sum. The court also awarded €8,115,607.64 in
interest on the damages award itself. Applying Rule 59(e), the
district court converted the entire award into U.S. dollars using
the exchange rate in effect on July 2, 2013, the date of the
arbitral award. The amended judgment totaled
$62,731,104.80. Because the value of the euro had declined
significantly against the dollar over the course of the litigation,
converting the judgment increased its value by approximately
$11.9 million. The Hellenic Republic now appeals only the
conversion of the arbitral award under Rule 59(e).
II.
We review the district court’s decision granting Leidos’s
Rule 59(e) motion for abuse of discretion. Flynn v. Dick
Corp., 481 F.3d 824, 829 (D.C. Cir. 2007). “A district court
by definition abuses its discretion when it makes an error of
law.” Koon v. United States, 518 U.S. 81, 100 (1996).
6
In granting Leidos’s motion, the district court committed
two errors. First, the district court incorrectly concluded that
our Rule 59(e) precedent did not apply to Leidos because it was
not a “losing party.” In re Arbitration of Certain
Controversies between Sci. Applications Int’l Corp. & Hellenic
Republic, 249 F. Supp. 3d at 302-03. Second, the court erred
in concluding that it was manifestly unjust to award Leidos
judgment in euros even though Leidos had expressly sought
relief in euros at least three times and had not asked for dollars
until its post-judgment motion. Id. at 304-05. In addition,
the district court misinterpreted—and thus mistakenly relied
on—our opinion in Continental Transfert Technique Ltd. v.
Federal Government of Nigeria, 603 Fed. App’x 1 (D.C. Cir.
2015) (per curiam), which we address below.
Federal Rule of Civil Procedure 59(e) provides a limited
exception to the rule that judgments are to remain final. See
Derrington-Bey v. Dist. of Colum. Dep’t of Corrs., 39 F.3d
1224, 1225 (D.C. Cir. 1994). Under Rule 59(e), the court may
grant a motion to amend or alter a judgment under three
circumstances only: (1) if there is an “intervening change of
controlling law”; (2) if new evidence becomes available; or (3)
if the judgment should be amended in order to “correct a clear
error or prevent manifest injustice.” Firestone v. Firestone,
76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam) (quoting
Nat’l Tr. v. Dep’t of State, 834 F. Supp. 453, 455 (D.D.C.
1993)). Although the court has considerable discretion in
ruling on a Rule 59(e) motion, the reconsideration or
amendment of a judgment is nonetheless an extraordinary
measure. Id.We have held that Rule 59(e) motions are aimed at
“reconsideration, not initial consideration.” District of
Columbia v. Doe, 611 F.3d 888, 896 (D.C. Cir. 2010) (quoting
Nat’l Ecological Found. v. Alexander, 496 F.3d 466, 477 (6th
7
Cir. 2007)). “Rule 59(e) permits a court to alter or amend a
judgment, but it may not be used to relitigate old matters, or to
raise arguments or present evidence that could have been raised
prior to the entry of judgment.” Exxon Shipping v. Baker, 554
U.S. 471, 486 n.5 (2008) (quoting 11 C. Wright & A. Miller,
Federal Practice and Procedure § 2810.1, pp. 127–128 (2d ed.
1995)). It is “not a vehicle to present a new legal theory that
was available prior to judgment.” Patton Boggs LLP v.
Chevron Corp., 683 F.3d 397, 403 (D.C. Cir. 2012).
In the same vein, manifest injustice “does not exist where
. . . a party could have easily avoided the outcome, but instead
elected not to act until after a final order had been entered.”
Ciralsky v. CIA, 355 F.3d 661, 665 (D.C. Cir. 2004). In
determining whether a decision could result in manifest
injustice, we examine whether it would “upset settled
expectations—expectations on which a party may reasonably
place reliance.” Qwest Servs. Corp. v. FCC, 509 F.3d 531,
540 (D.C. Cir. 2007) (interpreting “manifest injustice” in
context of retroactive FCC ruling). “[M]anifest injustice”
requires “at least (1) a clear and certain prejudice to the moving
party that (2) is fundamentally unfair in light of governing
law.” Mohammadi v. Islamic Republic of Iran, 947 F. Supp.
2d 48, 78 (D.D.C. 2013), aff’d, 782 F.3d 9 (D.C. Cir. 2015).
The district court erred, first, in articulating the Rule 59(e)
standard. In focusing on our statement in Kattan ex rel.
Thomas v. District of Columbia that Rule 59(e) does not permit
a “losing party . . . to raise new issues that could have been
raised previously,” 995 F.2d 274, 276 (D.C. Cir. 1993)
(emphasis added), the court reasoned that, because Leidos was
not a “losing party,” the prohibition on asserting—post-
judgment—a previously available argument did not apply. In
other words, the district court’s articulation of Rule 59(e)
allowed Leidos to assert a previously available legal theory
8
after judgment simply because it was the prevailing party. Its
explanation recites that:
[The Hellenic Republic] is correct that Leidos
expressly asked, at a much earlier point in this
long-running litigation, that the amount of
Judgment . . . be stated in Euros. However, the
fact that Leidos asked for the Judgment to be
stated in Euros at that time does not decide the
issue at this late date.
In re Arbitration of Certain Controversies between Sci.
Applications Int’l Corp. & Hellenic Republic, 249 F. Supp. 3d
at 302. The explanation utterly fails to account for the fact that
Leidos’s request could have—and should have—been made
long “before judgment was entered.” Obriecht v. Raemisch,
517 F.3d 489, 494 (7th Cir. 2008); see Baker, 554 U.S. at 486
n.5. Indeed, the district court’s rationale does not seem to
contemplate any limit on a prevailing party’s doing a post-
judgment volte-face.4 The text of Rule 59(e) plainly does not
differentiate between winners and losers. Fed. R. Civ. P.
59(e). Neither does our precedent. See, e.g., Patton Boggs,
683 F.3d at 403 (“Rule 59(e) is not a vehicle to present a new
legal theory that was available prior to judgment.”). The
benefit of finality applies equally to all litigants. See Plaut v.
Spendthrift Farm, Inc., 514 U.S. 211, 219 (1995) (discussing
historical reasons for promoting finality).
4
Kattan’s “losing party” language is perhaps best interpreted
as merely describing the moving party therein. Kattan, 995 F.2d at
275-76. The reference to a “losing party” also reflects the common-
sense understanding that a losing party will file a Rule 59(e) motion
more frequently than a prevailing party. A prevailing party rarely
desires reconsideration or amendment.
9
Second, we conclude—contrary to the conclusion of the
district court—that the judgment was consistent with
“governing law” and that Leidos did not suffer any “manifest
injustice” in receiving the relief it had explicitly and
consistently requested. Mohammadi, 947 F. Supp. 2d at 78.
Historically, U.S. and English courts were reluctant to
enter judgments in foreign currencies. See In re Oil Spill by
Amoco Cadiz Off Coast of France on Mar. 16, 1978, 954 F.2d
1279, 1329 (7th Cir. 1992) (detailing history of currency
conversion in federal court). In the years since the Congress
amended the Coinage Act in 1982,5 however, that trend has
gradually shifted and courts in both countries now recognize
that it is appropriate to enter judgment in foreign currency
under some circumstances. Id.; see RESTATEMENT (THIRD) OF
THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 823
cmt. b (1987) (explaining shift in U.S. and English courts).
Recent cases have endorsed judgment in a foreign currency if
the petitioner requests payment in that currency. See Cont’l
Transfert, 603 Fed. App’x at 4; see also In re Amoco Cadiz Oil
Spill, 954 F.2d at 1328 (“Judgment in a foreign currency is
5
Section 20 of the Coinage Act of 1792, formerly at 31 U.S.C.
§ 371, provided that the “money of account of the United States shall
be expressed in dollars . . . .” Some courts interpreted this Act to
mean that “American courts are permitted to render judgments only
in dollars.” Int’l Silk Guild v. Rogers, 262 F.2d 219, 224 (D.C. Cir.
1958). In 1982, however, the Coinage Act was reenacted without
the “money of account” language and the legislative history indicates
that it was “omitted as surplus.” H.R. Rep. No. 97-651, 97th Cong.,
2d Sess., at 146-47 (1982). Indeed, even before the 1982
amendment, some courts questioned whether courts were invariably
required to enter judgments in dollars. Baumlin & Ernst, Ltd. v.
Gemini, Ltd., 637 F.2d 238, 244 (4th Cir. 1980) (enforcing consent
order in Swiss francs notwithstanding Coinage Act).
10
especially attractive when the commercial activity took place
in that currency.”). In addition, District of Columbia law
permits—and sometimes requires—a foreign-currency
judgment. See D.C. Code §§ 15-901 et seq. Indeed, both
parties accept that the district court was permitted to enter the
original judgment in euros. Appellee’s Br. 12-13 nn.4-5
(acknowledging that judgment in euros did not amount to
“clear error”); Appellant’s Br. 14 (“[T]he entry of the original
judgment in euros was not erroneous at all, much less clearly
erroneous . . . .”). Thus, the original judgment was not
erroneously entered in euros such that it required Rule 59(e)
correction or amendment.
Nor did the judgment prejudice Leidos. Leidos could
have asked for dollars instead of euros at any time before
judgment; it chose not to. The value of the euro is published
daily on the foreign exchange market;6 it was thus available to
Leidos long before judgment and Leidos does not offer any
reason for its delay in seeking currency conversion.7 Instead,
at least three times, Leidos explicitly requested judgment in
euros: first, in its complaint and the proposed order that
accompanied it, JA 20; next, in its September 8, 2014
submission of a proposed judgment, JA 559-60; and finally, in
6
Current and historic foreign exchange rates are also published
on the Federal Reserve’s website, see Board of Governors of the
Federal Reserve System, Foreign Exchange Rates - H.10,
https://www.federalreserve.gov/releases/h10/current/, and courts
routinely take judicial notice of exchange rates, see In re New Motor
Vehicles Canadian Exp. Antitrust Litig., 522 F.3d 6, 15 n.10 (1st Cir.
2008).
7
Beginning on May 6, 2014, the euro began to fall in value
against the dollar for approximately 10 months until it bottomed out
on March 11, 2015 at $1.0552 to €1.
11
the proposed judgment it submitted on December 17, 2014, JA
561-62.8
Moreover, Leidos’s delay was not without harm to the
Hellenic Republic; it precluded the Hellenic Republic from
effectively hedging against the risk of currency fluctuations.
The fluidity of foreign exchange rates is a recognized feature
of modern macroeconomics. See Molinos Valle Del Cibao, C.
por A. v. Lama, 633 F.3d 1330, 1336 (11th Cir. 2011)
(discussing mechanics of foreign currency exchange contract).
To guard against fluctuation risk, a party can buy a “futures”
contract in a given currency. See In re Amoco Cadiz Oil Spill,
954 F.2d 1279, 1329 (7th Cir. 1992) (discussing hedging
practice). Here, Leidos could have purchased a futures
contract for dollars, promising payment in euros at a later date.
Once the Hellenic Republic satisfied its judgment in euros,
Leidos could have then traded in its futures position on the
foreign exchange market and received the dollar value of the
award. The same is true for the Hellenic Republic; it could
have bought a dollars-to-euros futures contract. But Leidos’s
delay did not give the Hellenic Republic notice of a need to
guard against currency fluctuation. See id. (“Although the
value of the judgment may fluctuate, the parties’ hedging can
undo the effect. The highest objective is predictability.”).
The parties’ contract was in euros, the arbitral award was in
euros and Leidos repeatedly requested judgment in euros.
Accordingly, the Hellenic Republic had a reasonable and
8
As late as November 3, 2016, the district court gave Leidos an
opportunity to request conversion when it asked “what, if anything
[it] should do now that the Supreme Court of the Hellenic Republic
has ruled.” JA 7. Leidos remained mute regarding currency
conversion.
12
“settled expectation[]” that it would satisfy the judgment
against it in euros. Qwest Services, 509 F.3d at 540.
Continental Transfert is not to the contrary. 603 Fed.
App’x 1. In that case, Continental won an arbitral award
against the government of Nigeria. Id. The arbitral award
was in foreign currency—Nigerian naira and British pounds—
and Continental sought to enforce the award in district court.
Id. at 2. Continental’s complaint did not specify which
currency it requested. Id. At summary judgment,
Continental moved to confirm and enforce the award and asked
that the judgment be converted to dollars. Cont’l Transfert
Technique Ltd. v. Fed. Gov’t of Nigeria, 932 F. Supp. 2d 153,
162 (D.D.C. 2013), aff’d, 603 Fed. App’x 1 (D.C. Cir. 2015).
The district court issued an order confirming and enforcing the
arbitration award but failed to grant Continental’s conversion
request. Id. at 157. Promptly thereafter, Continental filed a
post-judgment motion, 9 again seeking to convert the award
into dollars. Id. The district court granted the motion and we
affirmed. Cont’l Transfert, 603 Fed. App’x at 1. Our
reasons for affirming the district court in Continental Transfert
are straightforward and inapplicable to this case. In
Continental Transfert, we converted the arbitral award into
dollars primarily because “a judgment in a foreign currency
should be issued only when requested by the judgment
creditor.” Id. at 4 (emphasis added). Although
Continental had requested confirmation of its award, its
complaint did not specify which currency it sought. Id. In
those circumstances, we concluded “[s]ilence . . . is not a
request” and we upheld the conversion to dollars. Id.9
Continental labeled its post-judgment motion as a
“correction” under Rule 60(a) but we treated it as a motion to amend
under Rule 59(e). Cont’l Transfert, 603 Fed. App’x at 4.
13
By contrast, Leidos was not silent; it explicitly requested
judgment in euros in its complaint and its proposed orders,
specifying that only costs be computed in dollars. See, e.g.,
JA 22b (requesting €39,818,298 in euros and $162,500 in
dollars). Moreover, unlike Continental, Leidos did not ask for
conversion to dollars at summary judgment. Therefore, unlike
Leidos’s post-judgment motion, the Rule 59(e) motion in
Continental Transfert was directed to “reconsideration, not
initial consideration.” District of Columbia v. Doe, 611 F.3d
at 896. Accordingly, the typical framework of Rule 59(e)
applied and the district court had wide discretion to reconsider
its previous order. Firestone, 76 F.3d at 1208. That is simply
not the case here. As our precedent makes clear, Rule 59(e) is
not available to a party who “could have easily avoided the
outcome, but instead elected not to act until after a final order
had been entered.” Ciralsky, 355 F.3d at 665.
Our opinion today does not require us to plumb the murky
waters of currency conversion in federal court. See Competex,
S.A. v. Labow, 783 F.2d 333, 336-37 (2d Cir. 1986) (discussing
possible conversion dates for foreign currency judgments); see
also RESTATEMENT (FOURTH) OF THE FOREIGN RELATIONS
LAW OF THE UNITED STATES § 420 (updated 2017). We need
only hold that, under Rule 59(e), a district court may not
convert a judgment to dollars if the movant contracted in euros,
received its arbitral award in euros, requested euros in its
complaint and filed three proposed orders seeking euros, before
reversing course post-judgment. Under these circumstances,
it cannot be “manifestly unjust” to preserve Leidos’s judgment
in euros.
For the foregoing reasons, we reverse the district court and
remand with instructions to reenter judgment in accordance
with the arbitral award. In addition, Leidos is entitled to post-
14
judgment interest at the statutory rate set out in 28 U.S.C.
§ 1961.
So ordered.