265 F.3d 1068 (D.C. Cir. 2001)
Delta Foods Ltd., Appelleev.Republic of Ghana, et al., Appellants
No. 00-7081 Consolidated with 00-7248
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 6, 2001Decided September 28, 2001

Appeals from the United States District Court  for the District of Columbia (No. 99cv00044)
Michael Steven Cole argued the cause and filed the briefs  for appellants.
Robert D. Balin argued the cause for appellee.  With him  on the brief was Richard L. Cys.
Before:  Ginsburg, Chief Judge, Edwards and Sentelle,  Circuit Judges.
Opinion for the Court filed by Chief Judge Ginsburg.
Ginsburg, Chief Judge:


1
The government of the Republic of  Ghana appeals two orders of the district court denying its  motions to reopen judgment under Rule 60(b).  Those motions seek relief from a judgment enforcing against Ghana a  consent decree entered by that country's High Court of  Justice.  Ghana argues, first, that it never waived sovereign  immunity before judgment and therefore may raise it after  judgment and, alternatively, that the parties reached a postjudgment settlement.  We hold that Ghana may not, after  having voluntarily withdrawn its direct appeal, assert sovereign immunity in a collateral attack, and that the parties did  not enter into a post-judgment settlement agreement. Therefore, we affirm the orders of the district court denying  Ghana's Rule 60(b) motions.

I. Background

2
The government of Ghana contracted to buy corn from  Delta Foods, a Ghanaian corporation.  After Delta purchased  the corn in the United States and tried to deliver it, the  government refused to take it or to pay for it.  Delta sued  Ghana in the High Court of Justice, after which the two  parties negotiated a settlement agreement, the terms of  which were then embodied in a consent decree.  Ghana was  to pay Delta 20.3 billion Ghanaian cedis for:  the corn, the cost  of pre-judgment storage, and pre-judgment interest.  In addition, Ghana was to reimburse Delta for any post-judgment  cost of storage, and to pay Delta post-judgment interest in an  amount to be negotiated by the parties.


3
In January, 1999, still not having been paid any money,  Delta sued Ghana in the district court here to enforce the  decree of the High Court.  Ghana moved to dismiss or for  summary judgment on the grounds of forum non conveniens, comity, and ripeness, but it did not assert sovereign immunity.  Delta opposed Ghana's motion and cross-moved for summary judgment.  Ghana then filed a reply in which it stated:


4
Also confused in the opposition papers are the principles of Sovereign Immunity and "Act of State" with that of Comity.  The first two are doctrines of jurisdictional immunity.  Comity on the other hand, like the doctrine of forum non-conveniens, concerns discretionary jurisdiction.  Neither Sovereign Immunity nor Act of State is relevant since immunity to jurisdiction is not claimed.


5
In October, 1999 the district court granted Delta's motion  for summary judgment and ordered Ghana to pay Delta the  20.3 billion cedis due under the Ghanaian consent decree, plus  interest.  Converting the 20.3 billion cedis to dollars using the  rate of exchange at the time Delta filed suit in the United  States, the court awarded Delta $8,526,000 plus interest from  the entry of the consent decree to the entry of judgment in  the district court, for a total of $9,174,005, plus post-judgment  interest on that sum.


6
Ghana timely appealed to this court "each and every part of  the said judgment" but still did not assert sovereign immunity.  In December, 1999, however, Ghana moved voluntarily to  dismiss its appeal--which motion we granted--so it could file  in the district court a motion under Rule 60(b) seeking relief  from that court's judgment.


7
Meanwhile, on November 24, 1999 Ghana had deposited  20.3 billion cedis into the Ghanaian court, pursuant to the  consent decree, but Delta had rejected the payment, no doubt  because by that time the cedis were worth millions of dollars  less than the $9,174,005 to which it was entitled under the  judgment of the district court.  (Ghana also had tendered  some 2.282 billion cedis it owed under the consent decree for  warehouse costs;  Delta accepted that money.)  In its Rule  60(b) motion Ghana quoted a letter Delta's counsel had sent  the government in March, 1999 stating that "[i]f the judgment  debt is satisfied in Ghana, the proceedings in the U.S. cannot  continue since satisfaction of the judgment in Ghana will be a  complete answer to proceedings for execution in the U.S."


8
The district court denied Ghana's motion to vacate the  judgment.  The court ruled that neither Delta's letter nor its  acceptance of payment for post-consent decree warehouse  costs--a part of the Ghanaian judgment Delta had not sought  to enforce in the United States--"establishes that the parties  ever entered into a post-judgment settlement."


9
In March, 2000 Ghana moved again under Rule 60(b) to  vacate the judgment of the district court, this time on the  ground of sovereign immunity.  Ghana explained its belated  assertion of immunity as follows:  "[T]here has been a substantive change in the law which affects the judgment of this  Court.  This change is affected by virtue of a most recent  decision of the Second Circuit Court of Appeals," here referring to Transatlantic Shiffahrtskontor GmbH v. Shanghai  Foreign Trade Corp., 204 F.3d 384 (2000).


10
The district court denied Ghana's second motion to vacate,  holding that Ghana had, by the earlier-quoted passage in  Ghana's opposition to the plaintiff's motion for summary  judgment, "explicitly waived any claim to sovereign immunity."  Therefore, the court did not reach the question whether  Ghana was precluded from raising sovereign immunity in a  post-judgment motion.


11
Ghana now appeals the district court's dismissal of its two  Rule 60(b) motions.  The time for appeal of the underlying  judgment has long passed, of course.

II. Analysis

12
Ghana contends initially that it has not waived sovereign  immunity and may raise it for the first time in a postjudgment motion.  In the alternative, Ghana argues that it  satisfied the judgment of the district court when it paid into  the High Court of Ghana 20.3 billion cedis for the benefit of  Delta.


13
Ghana initially must show that it may assert sovereign  immunity in a motion under Rule 60(b).  Because we hold  that it may not, we need not reach the question whether  Ghana waived sovereign immunity.

A. Sovereign Immunity

14
Ghana points out that it never answered Delta's complaint; it merely moved to dismiss or for summary judgment on  various preliminary grounds, such as forum non conveniens. When the district court denied that motion, Ghana filed an  appeal, which it later withdrew.  There being no doubt it  could move to dismiss on the ground of forum non conveniens  (etc.) without thereby waiving sovereign immunity, Ghana  argues that it could likewise withdraw its appeal of the forum  non conveniens motion without losing its right to assert  sovereign immunity.


15
Delta counters that Ghana lost its right to assert sovereign  immunity when it withdrew its direct appeal.  According to  Delta, a party may not challenge a court's subject-matter  jurisdiction in a collateral attack if the party initially appeared in its own defense;  the question of jurisdiction is res  judicata.


16
We cannot but agree with Delta.  The problem with Ghana's argument is that Ghana never timely asserted sovereign  immunity in any forum.  Its failure to assert sovereign  immunity in the district court is not by itself fatal because, as  Ghana points out, it did not answer the complaint and sovereign immunity is not necessarily waived by the tactical choice  to raise other preliminary objections first.  Canadian Overseas Ores, Ltd. v. Compania de Acero del Pacifico S.A., 727  F.2d 274, 277-78 (2d Cir. 1984).  Therefore, when the district  court entered summary judgment for Delta, Ghana arguably  could have asserted sovereign immunity for the first time in  the court of appeals because the objection goes to the subject  matter jurisdiction of the court.  See Bazuaye v. United  States, 83 F.3d 482, 486 (D.C. Cir. 1996) ("Challenges to  subject matter jurisdiction can be raised for the first time on  appeal").  There is a limit, however, to the timeliness of even  a jurisdictional objection, and that limit was reached when the  time to appeal ran out;  with no appeal pending, the judgment  of the district court then became final.  For, as the Supreme  Court has stated:


17
A party that has had an opportunity to litigate the question of subject-matter jurisdiction may not ... reopen that question in a collateral attack upon an adverse judgment.  It has long been the rule that principles of res judicata apply to jurisdictional determinations--both subject matter and personal.


18
Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites  de GuinEe, 456 U.S. 694, 702 n.9 (1982).


19
Ghana now seeks to raise the issue of sovereign immunity  because it believes that Transatlantic, which the Second  Circuit decided two months after the last day for Ghana to  appeal, works a "substantive change in the law" from which  Ghana might benefit.  According to Ghana, that case holds  that in a suit to enforce a foreign judgment, the immunity of a  foreign sovereign is not subject to the commercial activity  exception unless the foreign judgment arises out of commercial activity in the United States.


20
Whether Ghana would benefit from the Transatlantic case  is irrelevant to the proper disposition of its motion to vacate  the judgment.  The Supreme Court has been clear, in terms  that might as well have been crafted with this case in mind,  that "reopening a judgment under Rule 60(b) [is precluded]  where the movant has voluntarily abandoned his appeal, and  the only ground for the motion to reopen is an asserted later  change in the judicial view of applicable law."  Polites v.  United States, 364 U.S. 426, 431 (1960).  Enough said.

B. Settlement

21
Ghana argues in the alternative that it satisfied the judgment of the district court when it tried to pay Delta 20.3  billion cedis, plus 2.82 billion cedis for post-consent decree  warehouse costs, both as required by the Ghanaian consent  decree, and Delta in fact accepted payment for the warehouse  costs.  According to Ghana, Delta agreed that if Ghana paid  the Ghanaian judgment, then Delta would not pursue payment of the U.S. judgment.  Ghana here relies upon the  letter it received in March, 1999 from Delta's counsel:  "If the  judgment debt is satisfied in Ghana, the proceedings in the U.S. cannot continue since satisfaction of the judgment in  Ghana will be a complete answer to proceedings for execution  in the U.S."


22
Delta counters that counsel sent that letter before the  district court had entered judgment;  in that procedural context the letter meant only that, if Ghana paid the Ghanaian  judgment for 20.3 billion cedis, then there would be no  unsatisfied judgment of which Delta could seek enforcement  in the United States.  Once the district court entered judgment, however, everything changed:  Ghana owed Delta not  20.3 billion cedis but $9,174,005.  See Competex, S.A. v.  Labow, 783 F.2d 333 (2d Cir. 1986).  Ghana has not attempted to pay that amount, nor has Delta agreed to accept less.


23
In reply, Ghana does not argue that it could satisfy the  judgment of the district court by paying the less valuable  Ghanaian judgment;  such an argument would be squarely at  odds with the holding in Competex.  Instead Ghana maintains  that Delta agreed to accept less than the U.S. judgment. Ghana first points to counsel's letter, but the letter manifests  no such agreement.  Although the letter informed Ghana that  Delta's "proceedings in the U.S. [could not] continue" if  Ghana paid the Ghanaian judgment, it in no way suggested  that Delta would accept payment of the Ghanaian judgment  as satisfaction of any judgment that might later be issued in  the United States.


24
Ghana also emphasizes that Delta accepted payment of the  warehouse costs in cedis, the suggestion apparently being,  because the cedis had lost value, that such acceptance is  evidence that Delta agreed not to demand the full payment  provided by the judgment of the district court if only Ghana  satisfied the decree of the High Court.  The warehouse costs,  however, were not a part of the U.S. judgment.  Delta had to  accept payment in cedis for those costs because it was not  owed payment in dollars.  Delta is, by contrast, owed dollars  under the U.S. judgment, and it has consistently demanded  full payment of the amount it is owed.  We therefore reject  Ghana's claim that it is entitled to relief from the judgment because the parties entered into a post-judgment settlement  agreement.

III. Conclusion

25
For the foregoing reasons, the judgment of the district  court is


26
Affirmed.

