Opinion

Exxon Mobil Corporation v. Corporacion CIMEX, S.A. (Cuba)

111 F.4th 12

Court: Court of Appeals for the D.C. Circuit
Filed: Jul 30, 2024
Status: Published
Cited by: 6 cases
Authority: More cited than 52.2%

The opinion

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 19, 2023 Decided July 30, 2024

No. 21-7127

EXXON MOBIL CORPORATION,

APPELLEE

CORPORACION CIMEX, S.A. (CUBA),

APPELLANT

CORPORACION CIMEX, S.A. (PANAMA) AND UNION

CUBA-PETROLEO,

APPELLEES

Consolidated with 22-7019, 22-7020

Appeals from the United States District Court

for the District of Columbia

(No. 1:19-cv-01277)

Michael R. Krinsky argued the cause for appellants/cross-

appellees. With him on the briefs were Lindsey Frank and

Nathan Yaffe.

Steven K. Davidson argued the cause for appellee/cross-

appellant. With him on the briefs were Shannen W. Coffin,

Michael J. Baratz, and Michael G. Scavelli.

Marco B. Simons, Richard L. Herz, and Michelle C.

Harrison were on the brief for amicus curiae EarthRights

International in support of appellee/cross-appellant.

Before: SRINIVASAN, Chief Judge, PILLARD, Circuit

Judge, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge SRINIVASAN.

Dissenting opinion filed by Senior Circuit Judge

RANDOLPH.

SRINIVASAN, Chief Judge: Over six decades ago, Exxon

owned multiple subsidiaries in Cuba that in turn owned various

oil and gas assets. In 1960, the Cuban government

expropriated those assets without compensating Exxon.

In 1996, Congress enacted the Cuban Liberty and

Democratic Solidarity Act, which furnishes a cause of action

against those who traffic in property confiscated by the Cuban

government. Exxon brought suit under that Act against three

state-owned defendants. Exxon’s suit contends that the

defendants currently traffic in confiscated property by

participating in the oil industry and operating service stations

using the property.

One of the defendants unsuccessfully moved to dismiss the

complaint based on foreign sovereign immunity. The Foreign

Sovereign Immunities Act (FSIA) generally bars United States

courts from exercising jurisdiction over foreign sovereign

entities like the defendants in this case. The district court held

that the Cuban Liberty and Democratic Solidarity Act does not

itself overcome a foreign sovereign’s general immunity from

suit under the FSIA, and that jurisdiction in this case thus

depends on the applicability of an FSIA exception. The court

determined that the FSIA’s expropriation exception does not

apply in the circumstances but that the FSIA’s commercial-

activity exception does.

We agree with the district court that the Cuban Liberty and

Democratic Solidarity Act does not confer jurisdiction in this

case and that the FSIA’s expropriation exception is

inapplicable. As for the commercial-activity exception, we

conclude that the district court needed to undertake additional

analysis before determining that jurisdiction exists under that

exception. We thus vacate the district court’s decision and

remand the case for further analysis on the applicability of the

FSIA’s commercial-activity exception.

In 1959, Exxon, then known as Standard Oil, owned

several subsidiaries in Cuba, including Esso Standard Oil, S.A.

(Essosa). After Fidel Castro’s rise to power, the Cuban

government seized files, maps, and other records of geological

exploration from the offices of Standard Oil’s subsidiaries, and

the subsidiaries ceased all exploration efforts in Cuba. In 1960,

the Cuban government issued a series of resolutions

expropriating property, including all Cuban property owned by

Essosa. The Cuban government prohibited Essosa from

operating a refinery, caused it to abandon its Cuba-based

marketing operations, and forced it to stop operating its service

stations in Cuba. All told, the Cuban government confiscated

the refinery, multiple bulk-products terminals, and over one

hundred service stations from Standard Oil’s subsidiaries.

In 1964, Congress established a mechanism for U.S.

nationals to submit expropriation claims against Cuba to the

U.S. Foreign Claims Settlement Commission (the

Commission). See 22 U.S.C. § 1643 et seq. Congress tasked

the Commission with determining “the amount and validity of

claims by nationals of the United States against the

Government of Cuba” for “losses resulting from the

nationalization, expropriation, intervention, or other taking

of . . . property,” including claims based on “any rights or

interests . . . owned wholly or partially, directly or indirectly.”

Id. § 1643b(a).

In 1969, the Commission certified that Standard Oil had

“suffered a loss in the total amount of $71,611,002.90 . . . as a

result of the intervention on July 1, 1960, of the Cuban branch

of Essosa,” and that Standard Oil was also entitled to interest

at a rate of 6% per annum. See In the Matter of the Claim of

Standard Oil Company (F.C.S.C. Decision No. CU-3838 Sept.

3, 1969) at 9, J.A. 60. Neither Standard Oil nor its successor

Exxon has received any payment in connection with that

certified claim.

Three decades after the Commission certified Standard

Oil’s claim, Congress enacted the Cuban Liberty and

Democratic Solidarity Act of 1996. See 22 U.S.C. § 6021 et

seq. Title III of the Act creates a private right of action

enabling U.S. nationals who previously owned property in

Cuba to sue any “person” who, after a certain date, “traffics in

property which was confiscated by the Cuban Government on

or after January 1, 1959.” Id. § 6082(a)(1)(A). The Act defines

a “person” as “any person or entity, including any agency or

instrumentality of a foreign state.” Id. § 6023(11). And the

Act broadly defines “traffics”: one “traffics” in property by

“knowingly and intentionally” taking one of a long list of

actions without authorization, such as purchasing, selling,

controlling, or using an interest in confiscated property, as well

as “engag[ing] in a commercial activity using or otherwise

benefiting from confiscated property.” See id.

§ 6023(13)(A)(i)–(iii).

The Act’s stated purpose in part is to “deter trafficking in

wrongfully confiscated property” by giving “United States

nationals who were the victims of these confiscations . . . a

judicial remedy in the courts of the United States that would

deny traffickers any profits from economically exploiting

Castro’s wrongful seizures.” Id. § 6081(11). While Title III

provides multiple possible measures of damages, it creates a

rebuttable presumption that a claimant is entitled to the amount

certified to them by the Commission, in addition to court costs

and attorneys’ fees. See id. § 6082(a)(1)–(2). Title III also

provides for treble damages when a claim to property

previously certified by the Commission is at issue. See id.

§ 6082(a)(3)(A), (a)(3)(C)(ii).

The Act authorizes the President to suspend Title III’s

private right of action for periods of up to six months at a time

upon determining “that the suspension is necessary to the

national interests of the United States and will expedite a

transition to democracy in Cuba.” Id. § 6085(b). From the

time of the Act’s enactment, Presidents issued sequential six-

month suspensions until 2019, when President Trump’s

administration announced that it would no longer suspend the

right to bring Title III actions. That decision paved the way for

this suit.

In May 2019, Exxon sued three state-owned defendants:

(i) Corporación CIMEX S.A. (Cuba), a conglomerate, whom

we will refer to as CIMEX; (ii) Corporación CIMEX S.A.

(Panama), whom Exxon alleges is the alter ego of CIMEX; and

(iii) Unión Cuba-Petróleo (CUPET), Cuba’s state-owned oil

company. Exxon alleges that the defendants traffic in

confiscated property by extracting, importing, and refining

crude oil, operating service stations, and engaging in

commercial activity involving the confiscated property. See

Second Am. Compl. ¶¶ 127–35, J.A. 47–48. Exxon seeks a

damages award equaling the amount certified by the

Commission, as well as pre-judgment interest and treble

damages. Id. ¶ 137, J.A. 48.

The defendants moved to dismiss Exxon’s complaint for

lack of jurisdiction based on foreign sovereign immunity. The

parties agree that all three defendants are wholly owned by

Cuba, rendering them agencies or instrumentalities of a foreign

state. As such, the defendants are “presumptively immune

from the jurisdiction of United States courts” under the Foreign

Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et seq.,

unless one of the FSIA’s exceptions applies. See OBB

Personenverkehr AG v. Sachs, 577 U.S. 27, 30–31 (2015)

(quoting Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993)).

At issue here are two FSIA exceptions: the expropriation

exception and the commercial-activity exception. See 28

U.S.C. § 1605(a)(2), (a)(3).

The district court denied the motion to dismiss as to

CIMEX, but deferred ruling and allowed limited jurisdictional

discovery as to the other two defendants. Exxon Mobil Corp.

v. Corporación CIMEX S.A., 534 F. Supp. 3d 1, 7 (D.D.C.

2021). The court began by rejecting Exxon’s argument that,

regardless of the FSIA, Title III independently confers

jurisdiction over the defendants. Id. at 11. The court then

examined the relevant FSIA exceptions, concluding that the

commercial-activity exception is satisfied with respect to

CIMEX but that the expropriation exception is unsatisfied with

respect to any defendant. Id. at 15–22, 26–29. The court later

denied the defendants’ motion for reconsideration. Exxon

Mobil Corp. v. Corporación CIMEX S.A., 567 F. Supp. 3d 21

(D.D.C. 2021).

All three defendants now appeal the district court’s denial

of CIMEX’s motion to dismiss for lack of jurisdiction. Exxon

cross-appeals the district court’s holdings that the FSIA’s

expropriation exception is unsatisfied and that Title III does not

independently confer jurisdiction.

II.

While we generally lack jurisdiction to review the denial

of a motion to dismiss because such an order is interlocutory,

we have jurisdiction when the dismissal was sought on grounds

of sovereign immunity (including foreign sovereign

immunity). See Kilburn v. Socialist People’s Libyan Arab

Jamahiriya, 376 F.3d 1123, 1126 (D.C. Cir. 2004). We thus

possess jurisdiction over CIMEX’s appeal from the denial of

its motion for dismissal. As for the other two defendants, the

district court certified their appeals for interlocutory review as

a discretionary matter under 28 U.S.C. § 1292(b), see Exxon

Mobil Corp. v. Corporación CIMEX S.A., No. 19-cv-1277,

2021 WL 6805533 (D.D.C. Nov. 23, 2021), and we agree that

the statutory standards for interlocutory appeal are satisfied.

And when a district court certifies an order for interlocutory

appeal under that statute, we can decide “any issue fairly

included within the certified order,” Yamaha Motor Corp.,

U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996), which here

includes the issues raised by Exxon in its cross-appeal.

We thus proceed to examine: (i) Exxon’s argument that,

regardless of the applicability of any FSIA exception, Title III

independently establishes jurisdiction over foreign sovereign

entities like the defendants; (ii) Exxon’s contention that the

FSIA’s expropriation exception applies in this case; and (iii)

the defendants’ submission that the FSIA’s commercial-

activity exception does not apply.

Exxon initially contends that we need not consider the

applicability of any FSIA exception because Title III

independently confers jurisdiction over its action against Cuba-

owned entities. The district court, in our view, correctly

rejected that contention.

The terms of the FSIA contemplate that jurisdiction in a

civil action against a foreign sovereign could arise only under

the FSIA itself, not under some other statute like Title III. To

that end, the FSIA prescribes that “a foreign state shall be

immune from the jurisdiction of the courts of the United States

and of the States except as provided in sections 1605 to 1607

of this chapter.” 28 U.S.C. § 1604 (emphasis added); see also

28 U.S.C. § 1330(a). Section 1605 then sets out the FSIA’s

exceptions to the default bar against jurisdiction over foreign

sovereigns—and we will examine two of those exceptions

below. And Section 1607, inapposite here, concerns

counterclaims against foreign states who themselves bring an

action.

Given the FSIA’s terms, the Supreme Court has repeatedly

explained that the “Foreign Sovereign Immunities Act

‘provides the sole basis for obtaining jurisdiction over a foreign

state in the courts of this country.’” Sachs, 577 U.S. at 30

(emphasis added) (quoting Argentine Republic v. Amerada

Hess Shipping Corp., 488 U.S. 428, 443 (1989)). Said

otherwise, “Congress established [in the FSIA] a

comprehensive framework for resolving any claim of [foreign]

sovereign immunity.” Republic of Austria v. Altmann, 541

U.S. 677, 699 (2004) (emphasis added). Accordingly, when

the Supreme Court recently held that the FSIA does not pertain

to criminal cases against foreign sovereigns, the Court

reiterated “the ‘comprehensiveness’ of the statutory scheme as

to civil matters” like this case. Turkiye Halk Bankasi A.S. v.

United States, 598 U.S. 264, 278 (2023) (quoting Amerada

Hess, 488 U.S. at 437).

In short, “[t]hrough the FSIA, Congress enacted a

comprehensive scheme governing claims of immunity in civil

actions against foreign states and their instrumentalities.” Id.

at 272–73. Consistent with that understanding, our court has

described the “FSIA exceptions [as] exhaustive; if none applies

to the circumstances presented in a case, the foreign state has

immunity and the court lacks subject-matter jurisdiction.” Wye

Oak Tech., Inc. v. Republic of Iraq, 24 F.4th 686, 690 (D.C.

Cir. 2022); see also Simon v. Republic of Hungary, 77 F.4th

1077, 1090 (D.C. Cir. 2023) (“Absent a pre-existing agreement

with the United States affecting the scope of sovereign

immunity, a foreign sovereign is generally immune, unless one

of the FSIA’s enumerated exceptions applies.”); Valambhia v.

United Republic of Tanzania, 964 F.3d 1135, 1139 (D.C. Cir.

2020).

Exxon nonetheless contends that the FSIA does not set out

the exclusive mechanism for securing jurisdiction over civil

suits against foreign sovereigns, and that courts have

jurisdiction in Title III actions against foreign sovereigns

without regard to the FSIA. In support of that proposition,

Exxon observes that Title III creates liability for “any person

that . . . traffics in property which was confiscated by the

Cuban Government,” 22 U.S.C. § 6082(a)(1)(A), and defines a

“person” as “any person or entity, including any agency or

instrumentality of a foreign state,” id. § 6023(11) (emphasis

added).

It is true that Title III thereby contemplates that its cause

of action can encompass suits against a foreign state (and its

agencies or instrumentalities). But Title III nowhere says that

any Title III action against a foreign state automatically lies

within a district court’s jurisdiction. Rather, Title III

harmoniously coexists with the FSIA if it allows for actions

against foreign sovereign entities who traffic in expropriated

property in those circumstances in which the FSIA allows for

jurisdiction over the foreign sovereign—i.e., when an FSIA

exception applies.

After all, Title III speaks in terms of establishing

“liability” for persons (potentially including foreign states)

who “traffic[] in property which was confiscated by the Cuban

Government,” id. § 6082(a)(1)(A), without saying anything

about the existence of jurisdiction over a foreign sovereign.

The FSIA, by contrast, specifically addresses when a “foreign

state [is] immune from . . . jurisdiction.” 28 U.S.C. § 1604.

And “whether there has been a waiver of sovereign immunity”

and “whether the source of substantive law upon which the

claimant relies provides an avenue of relief” are “two

‘analytically distinct’ inquiries.” FDIC v. Meyer, 510 U.S.

471, 483–84 (1994) (quoting United States v. Mitchell, 463

U.S. 206, 218 (1983)). So, while Title III “provides an avenue

of relief” against persons (potentially including foreign states)

who traffic in property expropriated by Cuba, that does not tell

us “whether there has been a waiver of sovereign immunity”

enabling the exercise of jurisdiction over a foreign sovereign

sued under Title III. See id.

Congress, moreover, was well aware of the FSIA when it

enacted Title III, so much so that it expressly referenced and

incorporated FSIA definitions, see 22 U.S.C. § 6023(1), (3),

and FSIA procedures for service of process, see id.

§ 6082(c)(2). Conversely, when Congress sought to render

FSIA provisions inapplicable to actions under Title III,

Congress specifically said so, as it did with respect to the

FSIA’s delineation of the scope of immunity from attachment

or execution. See Cuban Liberty and Democratic Solidarity

(LIBERTAD) Act of 1996, Pub. L. No. 104–114, § 302(e), 110

Stat. 785, 818 (codified at 28 U.S.C. § 1611(c)). Title III

contains no such language referencing—much less departing

from—the FSIA’s prescription that “a foreign state shall be

immune from the jurisdiction of the courts . . . except as

provided in” the FSIA’s enumerated exceptions. 28 U.S.C.

§ 1604. The absence of any such language in Title III is

significant: “Given the FSIA’s comprehensive and explicit

regulation of jurisdiction over foreign sovereigns, we cannot

assume that Congress abrogated these sovereigns’ immunity

from suit through other statutes” like Title III “without

mentioning jurisdiction or their immunity expressly.” Doe v.

Taliban, 101 F.4th 1, 10 (D.C. Cir. 2024). Indeed, even if Title

III were ambiguous on whether it abrogates foreign sovereign

immunity, “any statutory ambiguity concerning a waiver of

foreign immunity outside the FSIA must be resolved in favor

of its preservation.” Id. at 12.

Our dissenting colleague suggests that if Congress

understood the FSIA to apply to Title III, it would not have

needed to specify the applicability of various FSIA provisions

in Title III actions. Dissenting Op. 9. As alluded to above,

however, when enacting Title III, Congress amended the FSIA

to provide that, “[n]otwithstanding” the FSIA’s exceptions to a

foreign sovereign’s immunity from attachment and execution,

in Title III actions “the property of a foreign state shall be

immune from attachment and from execution” in certain

conditions. 28 U.S.C. § 1611(c) (citing 28 U.S.C. § 1610).

Congress would expressly provide that an FSIA exception to

FSIA-created immunity is inapplicable in Title III actions only

if Congress understood foreign states to enjoy FSIA immunity

in Title III actions in the first place. True, that provision

specifically concerns FSIA execution immunity (as opposed to

FSIA jurisdictional immunity) in Title III cases. See

Dissenting Op. 9. But if Congress in fact wanted Title III

plaintiffs to secure judgments against foreign states without

needing to surmount FSIA jurisdictional immunity—as our

dissenting colleague supposes—then it is hard to see why

Congress still forced those same plaintiffs to overcome FSIA

execution immunity to collect on those same judgments.

Nor are we persuaded by our colleague’s reliance on the

Supreme Court’s decision in Department of Agriculture Rural

Development Rural Housing Service v. Kirtz, 601 U.S. 42

(2024), in support of the proposition that Title III’s conferral of

liability on foreign governments also effected an abrogation of

their otherwise-applicable jurisdictional immunity under the

FSIA. See Dissenting Op. 5–7. Kirtz held that the Fair Credit

Reporting Act (FCRA) waived the federal government’s

(domestic) sovereign immunity because the “‘statute creates a

cause of action’ and explicitly ‘authorizes suit against a

government on that claim.’” 601 U.S. at 49 (quoting Fin.

Oversight & Mgmt. Bd. for P.R. v. Centro De Periodismo

Investigativo, Inc. (FOMB), 598 U.S. 339, 347 (2023)). In

reaching that conclusion, the Court adopted the approach it has

long taken when considering the sovereign immunity of

domestic states. See, e.g., Nev. Dep’t of Hum. Res. v. Hibbs,

538 U.S. 721, 726 (2003); Kimel v. Fla. Bd. of Regents, 528

U.S. 62, 73–74 (2000); Seminole Tribe of Fla. v. Florida, 517

U.S. 44, 56–57 (1996).

Our colleague observes that, like the FCRA, Title III also

imposes liability on any “person” and defines “person” to

include a government agency or similar entity. See Kirtz, 601

U.S. at 51; compare 22 U.S.C. § 6023(11) (“any agency or

instrumentality of a foreign state”), with 15 U.S.C. § 1681a(b)

(“any . . . governmental subdivision or agency, or other

entity”). But we believe it is mistaken to rely on that similarity

alone to conclude that Title III likewise both confers a cause of

action against foreign states and abrogates their sovereign

immunity.

To begin with, Kirtz and the line of cases preceding it

concerned either federal or state sovereign immunity, which

derive from different sources than does foreign sovereign

immunity. Whereas federal and state sovereign immunity stem

from the common law and the Constitution, respectively, see

Whole Woman’s Health v. Jackson, 595 U.S. 30, 39 (2021);

Alden v. Maine, 527 U.S. 706, 712–13 (1999); Shuler v. United

States, 531 F.3d 930, 932–33 (D.C. Cir. 2008), foreign

sovereign immunity is “a matter of grace and comity” extended

to foreign states by our political branches, Verlinden B.V. v.

Cent. Bank of Nigeria, 461 U.S. 480, 486–88 (1983); Altmann,

541 U.S. at 689, 696. So a host of “sensitive diplomatic and

national-security judgments . . . pervade waivers of foreign

sovereign immunity,” bolstering the need to respect Congress’s

balancing of those considerations in the provisions of the FSIA.

Doe v. Taliban, 101 F.4th at 12. Those sorts of foreign-

relations concerns do not arise in cases involving federal or

state sovereign immunity.

Additionally, when the Supreme Court has held that

Congress waived or abrogated immunity in cases involving

federal or state sovereign immunity, it was not just because the

statute created a cause of action and authorized suit against a

government (as Title III also does). Instead, the Court deemed

immunity waived or abrogated because “recognizing immunity

would have negated” the conferral of a cause of action against

governments entirely, as any and all “suits allowed [by the

statute] against governments would automatically have been

dismissed” on sovereign-immunity grounds. FOMB, 598 U.S.

at 348; see Kirtz, 601 U.S. at 49–51. In other words, unless the

statute creating the cause of action were construed to waive

sovereign immunity, the conferral of a cause of action against

the government would have been completely pointless. That is

not the case here. Our holding that Title III does not

independently abrogate FSIA immunity does not entirely

“negate” the Title III cause of action against foreign

governments: Title III suits against those governments can

proceed if an FSIA exception applies.

The upshot is that plaintiffs bringing Title III actions

against foreign states must satisfy one of the FSIA’s

exceptions, which is the same condition any litigant seeking to

sue a foreign sovereign must meet. That approach, contrary to

Exxon’s submission, does not undermine Title III’s purposes.

It poses no obstacle to Title III suits against non-sovereign

parties who traffic in confiscated property. And with respect

to Title III actions against foreign sovereigns, insofar as

Congress intended for such suits to go forward only when the

FSIA allows for jurisdiction, as we believe to be the case, our

reading of course furthers—rather than frustrates—Congress’s

intentions. That conclusion respects Congress’s decision to

craft the FSIA as a “careful balance between respecting the

immunity historically afforded to foreign sovereigns and

holding them accountable, in certain circumstances, for their

actions.” See Rubin v. Islamic Republic of Iran, 583 U.S. 202,

208–09 (2018).

Because Exxon’s Title III action is subject to the FSIA’s

“baseline principle of immunity for foreign states and their

instrumentalities,” the action must fit within one of the FSIA’s

“exceptions to that principle.” Turkiye Halk Bankasi, 598 U.S.

at 272. Exxon “bears the initial burden to overcome” the

FSIA’s “presumption of immunity . . . by producing evidence

that an exception applies.” Bell Helicopter Textron, Inc. v.

Islamic Republic of Iran, 734 F.3d 1175, 1183 (D.C. Cir.

2013). The defendants then “bear[] the ultimate burden of

persuasion to show the exception does not apply.” Id.

Exxon submits that its suit satisfies two FSIA exceptions:

the expropriation exception and the commercial-activity

exception. We agree with the district court that the

expropriation exception is inapplicable. With respect to the

commercial-activity exception, while the district court

considered that exception to apply, we remand for further

assessment of whether CIMEX’s use of expropriated property

causes the requisite direct effect in the United States.

Before turning to an examination of each of the two

exceptions relied on by Exxon, we pause briefly to consider a

threshold theory advanced by the defendants: that because this

case arises out of Cuba’s act of expropriating property, the only

FSIA exception potentially in play is the expropriation

exception, such that the commercial-activity exception could

not separately supply a basis for jurisdiction.

Nothing in the FSIA supports that kind of one-and-only-

one-exception approach. The FSIA sets out a list of exceptions

enumerating various circumstances in which a “foreign state

shall not be immune from the jurisdiction of courts,” and those

exceptions are framed as alternatives, separated by the word

“or.” See 28 U.S.C. § 1605(a). The most natural reading is

that, if any of those exceptions applies in a given case,

immunity is overcome. There is no textual (or other) indication

that a court must first somehow determine which exception is

the sole one possibly in play in any given case, and then should

limit itself to examining whether that—and only that—

exception applies. Indeed, it is unclear how a court would

evaluate which of two (or more) exceptions is most germane

without proceeding to assess whether each exception’s

requirements are satisfied—the very inquiry the defendants

suggest should not happen.

Our court accordingly has “never held that in order to

proceed against a foreign government, a claim must fall into

just one FSIA exception.” De Csepel v. Republic of Hungary,

859 F.3d 1094, 1103 (D.C. Cir. 2017). In fact, with specific

regard to the expropriation and commercial-activity

exceptions, we have explained that they involve “altogether

different questions.” Id. We thus rejected the idea that an

activity must fall under “either the expropriation exception or

the commercial activity exception, but not both.” Id. As long

as “a proper showing is made,” a plaintiff can rely on the

commercial-activity exception even if a case may involve “the

taking of property”—i.e., an expropriation. Foremost-

McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 450

n.15 (D.C. Cir. 1990) (internal quotation marks omitted).

We first consider the expropriation exception. As relevant

here, that exception abrogates immunity in any case “in which

rights in property taken in violation of international law are in

issue and . . . that property or any property exchanged for such

property is owned or operated by an agency or instrumentality

of the foreign state and that agency or instrumentality is

engaged in a commercial activity in the United States.” 28

U.S.C. § 1605(a)(3). “Generally speaking, the exception has

two requirements: (1) the claim must put in issue ‘rights in

property taken in violation of international law,’ and (2) there

must be an adequate connection between the defendant and

both the expropriated property and some form of commercial

activity in the United States.” Simon, 77 F.4th at 1091 (quoting

28 U.S.C. § 1605(a)(3)).

The first of those requirements is dispositive here. In

determining whether a claim involves rights in property that are

recognized by and taken in violation of international law,

courts look to the “customary international law of

expropriation” (if the plaintiff “do[es] not rely on an express

international agreement”). Id. at 1097. Such a plaintiff thus

“must show that [its] legal theory ‘has in fact crystallized into

an international norm that bears the heft of customary law.’”

Id. (quoting Helmerich & Payne Int’l Drilling Co. v. Bolivarian

Republic of Venezuela, 743 F. App’x 442, 449 (D.C. Cir.

2018)); see Fed. Republic of Germany v. Philipp, 592 U.S. 169,

180–81 (2021).

We agree with the district court that Exxon has failed to

allege any “rights in property taken in violation of international

law.” 28 U.S.C. § 1605(a)(3). Exxon does not contend that it

directly owned any of the property seized by Cuba. The seized

property instead was owned by Exxon’s subsidiary, Essosa.

Exxon’s asserted property right, then, is its interest, as a

shareholder and parent of Essosa, in Essosa’s property. And

under the international law of expropriation, “not every state

action that has a detrimental impact on a shareholder’s interests

amounts to an indirect expropriation of the shareholder’s

ownership rights.” Helmerich, 743 F. App’x at 454. Because

a “shareholder’s direct rights generally are not implicated by

state action that depreciates the value of a corporation’s shares,

even severely,” shareholders typically cannot establish a

violation of their rights on the basis of such state action unless

the action is aimed at the direct rights of the shareholders

themselves. See id. (quoting Br. for the United States as

Amicus Curiae at 12–13, Helmerich, 743 F. App’x 442 (No.

13-7169)).

Decisions by the International Court of Justice confirm

that international law generally does not recognize a

shareholder’s right in property owned by the corporation. As

that court has explained, there is “a firm distinction between

the separate entity of the company and that of the shareholder,”

and “[s]o long as the company is in existence[,] the shareholder

has no right to the corporate assets.” The Barcelona Traction,

Light & Power Co. (Belgium v. Spain), Judgment, 1970 I.C.J.

3, 35, ¶ 41 (Feb. 5). That understanding governs even in the

case of a shareholder who is the sole owner of the subsidiary.

See Ahmadou Sadio Diallo (Republic of Guinea v. Democratic

Republic of the Congo), Judgment, 2010 I.C.J. 640, 688, ¶ 151,

689–90, ¶¶ 155–56 (Nov. 30).

Exxon insists that other sources of international law

recognize its shareholder interest in Essosa’s assets as a

property right. The scattered authorities Exxon cites, however,

are secondary to the judgments of the International Court of

Justice, which are “accorded great weight” in understanding

the content of international law. See Restatement (Third) of the

Foreign Relations Law of the United States § 103 cmt. b (Am.

L. Inst. 1987) (Third Restatement). At any rate, even on their

own terms, the sources Exxon cites do not support its position.

Two of the sources—decisions by the Iran-United States

Claims Tribunal and investor-state arbitration decisions—tell

us little about the customary international law of expropriation.

The Tribunal’s decisions involve “specific, bargained-for

agreements” subject to governing law distinct from customary

international law. See Helmerich, 743 F. App’x at 452 (citing

Third Restatement § 102(2)). One Tribunal decision, for

example, explains that the State Department had specifically

bargained with Iran for a broader definition of property that

extended to interests in property. See SEDCO, Inc. v. Nat’l

Iranian Oil Co. & Islamic Republic of Iran, 15 Iran-U.S. Cl.

Trib. Rep. 23 (1987), 1987 WL 503885, at *8 n.9. Investor-

state arbitration decisions likewise involve negotiated Bilateral

Investment Treaties whose terms do not necessarily reflect the

parameters of customary international law. See, e.g., Total S.A.

v. The Argentine Republic, ICSID Case No. ARB/04/01,

Decision on Objections to Jurisdiction, ¶ 78 (Aug. 25, 2006)

(distinguishing bilateral investment treaties from customary

international law). Exxon’s reliance on a third source—the

Commission’s certification of Exxon’s claim—falls short for

similar reasons: Congress authorized the Commission to

certify losses due to the expropriation of “property including

any rights or interests therein owned wholly or partially,

directly or indirectly,” see 22 U.S.C. § 1643b(a), a definition

of property that sweeps substantially broader than the one

recognized by our decision in Helmerich and by the

International Court of Justice’s decisions.

To be sure, there is an exception to the general rule under

customary international law that shareholders lack a property

right in the assets of entities in which they hold ownership

interests. As we recognized in Helmerich, if a state’s action

“‘is aimed at the direct rights of the shareholder as such,’ it can

form the basis for an international expropriation claim.” 743

F. App’x at 454 (quoting Barcelona Traction, 1970 I.C.J. at 36,

¶ 47). That can occur if the state action “completely destroy[s]

the beneficial and productive value of the shareholder’s

ownership of their company,” “leaving the shareholder with

shares that have been rendered useless.” Id. (quoting Supp. Br.

for the United States as Amicus Curiae at 12, Helmerich, 743

F. App’x 442 (No. 13-7169)). In Helmerich, for example, we

concluded that a parent company had adequately alleged that a

foreign sovereign had taken its rights in property in violation

of international law because the takings, while aimed at the

subsidiary, had destroyed the entire value of the parent

company’s shares. Id. at 455.

That exception is inapplicable here. Unlike in Helmerich,

the district court here found undisputed evidence that Essosa

has continued its operations. The defendants produced

documents demonstrating that Essosa continued to hold annual

shareholder meetings and Board of Directors meetings,

operated fuel stations as of 2011, and began operating under a

different name in 2012 that is listed as in good standing with

the Public Registry of Panama. See Frank Decl. ¶¶ 2–19, J.A.

323–33. Exxon has not alleged any clear error in the district

court’s factual findings, and there is no evidence that Exxon’s

shares in Essosa were “rendered useless,” Helmerich, 743 F.

App’x at 454, by Cuba’s expropriation of Essosa’s property.

And while Exxon contends in its reply brief in our court that

Cuba in fact destroyed the entire value of Essosa’s operations,

we have no occasion to consider that argument: Exxon

forfeited the argument twice over by failing to raise it in the

district court or in our court in its opening brief. See Bryant v.

Gates, 532 F.3d 888, 898 (D.C. Cir. 2008); Abdullah v. Obama,

753 F.3d 193, 199–200 (D.C. Cir. 2014).

Finally, our dissenting colleague suggests that the

foregoing analysis is misplaced because the U.S. Foreign

Claims Settlement Commission long ago effectively settled

that Exxon itself has a legally cognizable interest in the

expropriated property. See Dissenting Op. 8. Title III requires

that if the Commission certifies “a claim to ownership of [an]

interest” in property, courts “shall accept” that certification “as

conclusive proof of ownership of [that] interest.” 22 U.S.C.

§ 6083(a)(1). And because the Commission determined that

Cuba unlawfully took Exxon’s property rights, our colleague

reasons, we are bound to treat Exxon’s ownership of those

property rights as conclusive of Exxon’s property interests. We

do not see things the same way.

It is true that the statute establishing the Commission

charged it with determining “the amount and validity of

claims” “in accordance with applicable substantive law,

including international law.” 22 U.S.C. § 1643b(a). But the

statute also directs the Commission to determine claims “for

losses resulting from the . . . expropriation [of] . . . property

including any rights or interests therein owned wholly or

partially, directly or indirectly at the time by nationals of the

United States.” Id. (emphasis added). As the district court

observed, the Commission thus evaluated property interests

much broader than those recognized under customary

international law. See Exxon, 534 F. Supp. 3d at 29. And there

is no evidence that the Commission purported to evaluate

property claims based on customary international law. The

Commission’s certification, then, cannot resolve whether the

expropriation exception applies.

In sum, because Exxon does not assert a right recognized

by the international law of property, it cannot satisfy the

expropriation exception. Exxon submits that Cuba not only

expropriated property but intentionally discriminated against

U.S. nationals in doing so, thereby ostensibly running afoul of

international law’s prohibition on discriminatory takings. But

even if that were so, Exxon still could not meet the

expropriation exception’s requirements: a successful claim of

a discriminatory taking of property requires both

discrimination and a taking of property in violation of

international law. The latter is absent here for the reasons

explained.

The commercial-activity exception—the “most significant

of the FSIA’s exceptions”—strips sovereign immunity on the

basis of a foreign sovereign’s commercial activities. See

Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 611

(1992); 28 U.S.C. § 1605(a)(2). The exception abrogates

immunity in any case

in which the action is based upon a commercial

activity carried on in the United States by the

foreign state; or upon an act performed in the

United States in connection with a commercial

activity of the foreign state elsewhere; or upon

an act outside the territory of the United States

in connection with a commercial activity of the

foreign state elsewhere and that act causes a

direct effect in the United States.

28 U.S.C. § 1605(a)(2). At issue here is the third clause, which

withdraws immunity when a suit is “(1) ‘based . . . upon an act

outside the territory of the United States’; (2) that was taken ‘in

connection with a commercial activity’ of [the defendant]

outside this country; and (3) that ‘cause[d] a direct effect in the

United States.’” Weltover, 504 U.S. at 611 (first and third

alterations in original) (quoting id.).

There is no dispute that Exxon’s suit fulfills the first

requirement, as CIMEX’s alleged trafficking occurs in Cuba.

The parties dispute whether Exxon’s suit satisfies the second

and third requirements—namely, whether CIMEX’s actions

are taken in connection with a commercial activity and whether

they cause a direct effect in the United States. We conclude

that Exxon’s suit meets the second requirement because

trafficking in confiscated property for purposes of Title III

constitutes commercial activity under the FSIA. We vacate and

remand, however, for the district court to further assess

whether, under the third requirement, CIMEX’s actions cause

a direct effect in the United States.

In applying the commercial-activity exception, “[w]e

begin our analysis by identifying the particular conduct on

which the [plaintiff’s] action is ‘based’ for purposes of the

Act.” Nelson, 507 U.S. at 356. We look to “the ‘basis’ or

‘foundation’ for a claim,” or the “gravamen of the complaint,”

which generally accounts for “those elements . . . that, if

proven, would entitle a plaintiff to relief.” Sachs, 577 U.S. at

33–34 (alteration in original) (quoting Nelson, 507 U.S. at

357).

The relevant clause of the commercial-activity exception

requires that the gravamen of the complaint bear a connection

to “commercial activity,” which the FSIA defines as “a regular

course of commercial conduct or a particular commercial

transaction or act.” 28 U.S.C. § 1603(d). The statute further

instructs that the “commercial character of an activity shall be

determined by reference to the nature of the course of conduct

or particular transaction or act, rather than by reference to its

purpose.” Id.; see also Weltover, 504 U.S. at 614. While the

statute’s definition “leaves the critical term ‘commercial’

largely undefined,” the following principle guides our inquiry:

“when a foreign government acts, not as regulator of a market,

but in the manner of a private player within it, the foreign

sovereign’s actions are ‘commercial’ within the meaning of the

FSIA.” Weltover, 504 U.S. at 612, 614. In Weltover, for

example, the Supreme Court concluded that because sovereign

bonds are “garden-variety debt instruments” that could “be

held by private parties,” could “be traded on the international

market,” and “promise[d] a future stream of cash income,”

Argentina’s issuance of those bonds constituted commercial

activity under the FSIA. Id. at 615.

The gravamen of Exxon’s suit is plainly connected to

commercial activity. Exxon alleges that CIMEX processes

remittances (transfers of money) sent by U.S. residents to Cuba

and that it operates service stations that sell gas and consumer

goods. Running retail and financial-services operations is not

uniquely sovereign activity, as any private actor can also

engage in those functions. In performing those activities, then,

the Cuban government acts not as a “regulator of a market,”

but rather “in the manner of a private player.” See id. at 614.

The defendants resist that conclusion by contending that

the gravamen of Exxon’s suit is the original expropriation and

possession of the confiscated property rather than the

subsequent commercial activity of processing remittances and

selling goods. According to the defendants, allowing later

commercial use of confiscated property to meet the FSIA’s

commercial-activity exception would enable an end-run

around the expropriation exception by permitting plaintiffs to

shoehorn suits about sovereign expropriations into the

commercial-activity exception.

The fact that Cuba’s antecedent expropriation and the

defendants’ possession of Exxon’s property may have enabled

the challenged commercial activity, however, does not

diminish the applicability of the commercial-activity

exception. The Supreme Court has repeatedly distinguished

enabling conduct preceding a claim from activity forming the

basis of the claim.

Nelson, for instance, involved tort claims for injuries a

person sustained from a foreign sovereign’s imprisonment and

torture of him. 507 U.S. at 353–54. He alleged that the

defendants had retaliated against him for reporting safety

violations at a state-owned hospital where he worked. Id. at

362. The Court explained that, even if the defendants had

engaged in commercial activity when they “recruited [the

plaintiff] for work at the hospital, signed an employment

contract with him, and subsequently employed him,” it was the

subsequent “torts, and not the arguably commercial activities

that preceded their commission,” that “form[ed] the basis” of

the suit. Id. at 358.

Similarly, in Sachs, a person bought a European rail pass

while in the United States and later suffered injuries when

attempting to board a train using that pass in Austria. 577 U.S.

at 29. The Court assessed whether, for purposes of the

commercial-activity exception, the claim was “based upon a

commercial activity carried on in the United States by [a]

foreign state.” Id. (alteration in original) (quoting 28 U.S.C.

§ 1605(a)(2)). In rejecting the plaintiff’s argument that the

rail’s sale of the pass to her in the United States satisfied the

exception, the Court again separated the antecedent

commercial activity from the subsequent, allegedly injurious

activity, concluding that the gravamen of the suit occurred in

Austria, not the United States. Id. at 35–36.

As those decisions instruct, the inquiry turns on the

specific conduct forming the basis of the plaintiff’s action. So

here, even if Cuba’s original expropriation and the defendants’

current possession were in some sense necessary to enable the

subsequent trafficking, the gravamen of Exxon’s action under

Title III—the trafficking—is commercial activity. A court

must “zero[] in on the core of [the plaintiff’s] suit,” that is, the

“acts that actually injured” the plaintiff. Id. at 35. Here, then,

we focus on the core of the suit brought by Exxon: the

commercial use of confiscated property, which Congress has

deemed actionable under Title III.

Our decisions in Rong v. Liaoning Province Government,

452 F.3d 883 (D.C. Cir. 2006), and Ivanenko v. Yanukovich,

995 F.3d 232 (D.C. Cir. 2021), lend no support to the

defendants. While both decisions held that the plaintiffs’ suits

did not satisfy the commercial-activity exception’s

requirements, the core of the suit in those cases, unlike here,

was an antecedent act of expropriation, not subsequent

commercial activity. See Rong, 452 F.3d at 887; Ivanenko, 995

F.3d at 239. The defendants’ reliance on various decisions

from foreign tribunals fails for similar reasons: the claims in

those cases focused on the wrongful expropriation of property

rather than the unlawful commercial use of the property.

The defendants relatedly submit that the alleged

trafficking is inseparable from Cuba’s exercise of sovereign

authority to nationalize property, publicly control industry, and

establish a socialist economy, ostensibly rendering the

trafficking non-commercial in nature. The terms of the FSIA,

though, prescribe that the “commercial character of an activity

shall be determined by reference to the nature of the course of

conduct or particular transaction or act, rather than by reference

to its purpose.” 28 U.S.C. § 1603(d). It is therefore irrelevant

whether “the foreign government is acting . . . with the aim of

fulfilling uniquely sovereign objectives”; “[r]ather, the issue is

whether the particular actions that the foreign state performs

(whatever the motive behind them) are the type of actions by

which a private party engages in trade and traffic or

commerce.” Weltover, 504 U.S. at 614 (internal quotation

marks omitted); see also Nelson, 507 U.S. at 360 (“[W]hether

a state acts ‘in the manner of’ a private party is a question of

behavior, not motivation.”). And because private parties can

equally engage in the types of actions in which Exxon contends

the defendants are engaged, the defendants’ challenged actions

are properly characterized as taken “in connection with a

commercial activity.” See 28 U.S.C. § 1605(a)(2).

To fit within the commercial-activity exception, CIMEX’s

trafficking activity not only must bear a “connection with a

commercial activity” in Cuba but must also “cause[] a direct

effect in the United States.” 28 U.S.C. § 1605(a)(2). “[A]n

effect is ‘direct’ if it follows ‘as an immediate consequence of

the defendant’s . . . activity.’” Weltover, 504 U.S. at 618

(second alteration in original) (citation omitted). Although

“jurisdiction may not be predicated on purely trivial effects in

the United States,” there is no “unexpressed requirement of

‘substantiality’ or ‘foreseeability.’” Id.

The district court concluded that CIMEX causes a direct

effect in the United States in two ways: first, by operating a

remittances business that enables transfers of money from the

United States to recipients in Cuba; and second, by selling

goods imported from the United States at its convenience

stores. We agree with Exxon and the district court that the

types of effects Exxon alleges—outflows of money from the

United States and purchases of U.S. goods—can constitute

direct effects in the United States. Still, we vacate and remand

for the district court to further assess whether CIMEX “causes”

those effects and whether the effects are sufficiently “direct.”

We first consider CIMEX’s remittances business. A

remittance is initiated when a U.S. resident designates a

recipient in Cuba and makes a payment to Western Union.

Valmaña Decl. ¶ 13(a)–(b), J.A. 195. The recipient in Cuba

can then collect the remittance at any of 502 Western Union

locations in the country. Id. ¶¶ 12, 13(d)–(e), J.A. 194, 196.

Exxon estimates that Cuba received $3.6 billion in remittances

in 2018, and that 90% of those remittances came from the

United States. Second Am. Compl. ¶ 112, J.A. 43. CIMEX

operates service stations that process remittance payments

from the United States through Western Union, and of the 502

Western Union locations in Cuba, 276 are operated by CIMEX

and 66 are specifically located at CIMEX’s service stations.

Valmaña Decl. ¶ 12, J.A. 194.

Exxon contends that CIMEX’s remittances business

causes a direct effect in the United States by creating a market

for remittances and drawing money from the United States to

Cuba. We agree that causing a non-trivial outflow of money

from the United States to Cuba would amount to a “direct

effect” under the FSIA. In Weltover, the Supreme Court

concluded that Argentina’s unilateral rescheduling of certain

bond payments caused a “direct effect” in the United States.

504 U.S. at 618–19. The bondholders had “designated their

accounts in New York as the place of payment” and Argentina

had already “made some interest payments into those accounts

before announcing that it was rescheduling the payments.” Id.

at 619. The Court held that Argentina’s “rescheduling of those

obligations necessarily had a ‘direct effect’ in the United

States” because “[m]oney that was supposed to have been

delivered to a New York bank for deposit was not

forthcoming.” Id. Weltover indicates that a change in the flow

of money in the United States constitutes a direct effect.

Our court has similarly found the existence of a direct

effect when a defendant alters the flow of money within, out

of, or into the United States. In one case, we found a direct

effect in the United States when “an American corporation

transferr[ed] $28,000 from a New York bank to the Somali

government’s D.C. bank.” Transamerican S.S. Corp. v. Somali

Democratic Republic, 767 F.2d 998, 1004 (D.C. Cir. 1985). In

another case, the termination of a contract constituted a direct

effect because “revenues that would otherwise have been

generated in the United States were ‘not forthcoming.’” Cruise

Connections Charter Mgmt. 1, LP v. Att’y Gen. of Canada, 600

F.3d 661, 665 (D.C. Cir. 2010) (quoting Weltover, 504 U.S. at

619); see also I.T. Consultants, Inc. v. Republic of Pakistan,

351 F.3d 1184, 1188–90 (D.C. Cir. 2003) (finding direct effect

when defendants failed to make promised payment into

Virginia bank account). Here, Exxon claims that money that

otherwise would have remained in the United States was

transferred to Cuba in the form of remittances. Evidence that

CIMEX caused such transfers would demonstrate a direct

effect in the United States.

The defendants argue that the effect is indirect because it

rests on the intervening decisions of multiple third parties:

people in the United States must decide to send remittances to

Cuba through Western Union, and the intended recipients in

Cuba must decide to receive the remittances at stations

operated by CIMEX. We have explained that a direct effect is

one that “has no intervening element, but, rather, flows in a

straight line without deviation or interruption.” Princz v. Fed.

Republic of Germany, 26 F.3d 1166, 1172 (D.C. Cir. 1994)

(citation and internal quotation marks omitted). And in the

defendants’ view, the integral role of third-party transferors

and recipients means the effect of CIMEX’s remittances

business in the United States is not “an immediate consequence

of the defendant’s . . . activity.” Weltover, 504 U.S. at 618

(alteration in original) (citation and internal quotation marks

omitted).

When the involvement of third parties is an entirely

foreseeable (and even intended) consequence of the

defendants’ relevant actions, however, it will not stand in the

way of concluding that the defendants’ activity causes a direct

effect in the United States. In EIG Energy Fund XIV, L.P. v.

Petroleo Brasileiro, S.A., 894 F.3d 339, 342–43 (D.C. Cir.

2018), a Brazilian state-owned oil company secured funding

for an oil exploration project from various U.S. investors

including EIG Management Company, LLC. After an

extensive bribery scheme came to light, “skittish lenders

withdrew their support,” rendering EIG’s shares in the project

worthless. Id. at 343. EIG brought fraud-related claims against

the state-owned oil company and other defendants, asserting

direct effects based on the concealment of fraud and

mismanagement of its money. Id. at 343, 345. We held that

the suit satisfied the commercial-activity exception, rejecting

the defendants’ argument that it was the third-party lenders’

decisions to withdraw their support, rather than the defendants’

fraud, that caused the direct effect in the United States. Id. at

346. We refused to adopt a “highly restrictive causation

requirement under which contributing factors readily and

predictably caused by the defendant’s same act would preclude

jurisdiction.” Id. (emphasis added).

As in EIG, third parties’ decisions to send and receive

remittances originating from the United States are “readily and

predictably caused by” CIMEX’s operation of a remittances

business. An entity that operates a remittances business knows

full well—and indeed, intends—that people in one location

will use the service to send money to recipients in another

location. And just as in EIG, CIMEX appears to have

“specifically targeted” parties in the United States. See id. at

342. In part due to U.S. regulations, the only remittances

“currently being paid out in Cuba” via Western Union are

remittances that originated in the United States. See Valmaña

Decl. ¶ 14, J.A. 199. As such, “CIMEX’s entire remittance

business is aimed at bringing money from the United States

into Cuba.” Exxon, 534 F. Supp. 3d at 20. For the same

reasons, the presence of FINCIMEX, a third-party agent who

acts as an intermediary between CIMEX and Western Union,

does not preclude finding that CIMEX caused direct effects in

the United States: FINCIMEX and CIMEX contract with each

other for the very purpose of carrying out a remittances

business. See Valmaña Decl. ¶ 6, J.A. 193.

Contrary to the defendants’ suggestion, the relevant acts

can cause a direct effect in the United States regardless of

whether the “locus of the tort” or a “legally significant act”

occurred in the United States. A “foreign locus does not always

mean that a tort causes no ‘direct effect’ in the United States.”

EIG, 894 F.3d at 347. Nor must the alleged direct effect cause

an injury or a harm, as “[n]othing in the FSIA requires that the

‘direct effect in the United States’ harm the plaintiff.” Cruise

Connections, 600 F.3d at 666 (quoting 28 U.S.C. § 1605(a)(2)).

And although the defendants note that we have often found

direct effects when the parties had been engaged in commercial

dealings, a preexisting relationship of that kind is not a

prerequisite to finding a direct effect.

The defendants, though, do raise one point that precludes

us from deciding at this stage that CIMEX’s processing of

remittances causes a direct effect in the United States in the

form of outflows of money from the United States to Cuba.

The defendants have provided evidence that, of the 66 stations

CIMEX uses to process remittances, a maximum of four to ten

stations sit on confiscated property formerly owned by Essosa.

Valmaña Decl. ¶ 12, J.A. 195. Because Title III makes the

defendants liable only for trafficking in confiscated property,

the pertinent inquiry is whether CIMEX’s remittances

operations at the four to ten stations located on former Essosa

property cause a direct effect in the United States—not whether

CIMEX’s entire remittances business does so.

For example, it is possible that precisely the same amount

of remittances would be sent from the United States to Cuba

even if those four to ten stations did not exist. There is no

evidence in the record about any of those individual stations,

where they are located, or how much they process in

remittances. Given that there are 502 Western Union locations

in Cuba, it is possible that, even without the four to ten stations

on former Essosa property, Americans would still send the

same amount of money and Cuban recipients would still

withdraw the same amount of money from other readily

accessible stations. If that were the case, one would be hard

pressed to conclude that CIMEX’s operation of a remittances

business at those stations “causes a direct effect in the United

States.” 28 U.S.C. § 1605(a)(2). The effect would be the same

regardless of those stations. Cf. Univ. of Tex. S.W. Med. Ctr. v.

Nassar, 570 U.S. 338, 346–47 (2013) (noting that an action

cannot be a but-for “cause of an event if the particular event

would have occurred without” the action (citation omitted)).

Exxon maintains that the limited number of stations is

irrelevant because the amount of remittances those stations

likely process exceeds the threshold of triviality under

Weltover. But whether an effect is too trivial to count as a

direct effect under the FSIA is a distinct question from whether

a defendant’s activity can be said to cause that effect, trivial or

not. If, as things currently stand, there are readily available

substitutes for the processing of remittances at those four to ten

stations—for instance, other Western Union sites in the

immediate vicinity—the conduct of the business at those

stations may not ultimately cause any outflow of money from

the United States that would not already occur. Without any

examination of that issue, we cannot say whether CIMEX’s

conduct of a remittances business on confiscated property in

fact “causes a direct effect in the United States.” 28 U.S.C.

§ 1605(a)(2).

We vacate and remand for the district court to assess

whether CIMEX’s conduct of a remittances business at the four

to ten stations operated on former Essosa property, as opposed

to CIMEX’s remittances activity writ large, causes a direct

effect in the United States. We do not suggest that courts

invariably must splinter jurisdictional inquiries under the FSIA

and conduct them parcel-by-parcel. But here, the relevant

inquiry concerns only the four to ten stations on former Essosa

property because Title III makes it unlawful to traffic in

confiscated property, limiting the relevant jurisdictional

inquiry to those sites. Our decision should not be understood

to express any prediction in either direction on whether

CIMEX’s remittances business at the four to ten stations causes

a direct effect in the United States. Because the district court

has not examined that question, we remand for it to conduct the

inquiry and reach a conclusion in the first instance.

ii.

In addition to CIMEX’s remittances business, Exxon

submits that CIMEX’s sale of imported U.S. goods at its

stations satisfies the commercial-activity exception.

According to Exxon, CIMEX’s sale of those goods causes a

direct effect in the United States by stimulating demand for

U.S. goods and by moving capital into and goods out of the

United States.

We agree with Exxon that an inflow of capital and an

outflow of goods constitutes a direct effect in the United States.

The defendants respond, however, that the way in which

CIMEX obtains imported goods from the U.S. precludes

concluding that CIMEX caused the effect in the United States.

Specifically, rather than directly importing goods from the

United States, CIMEX orders products through another Cuban

company, Alimport, which exercises sole discretion in

determining the source location of the goods it sends on to

CIMEX. In the defendants’ view, Alimport’s role as a third-

party intermediary presents an “intervening element” that

prevents any effect in the United States from “flow[ing] in a

straight line without deviation or interruption” from CIMEX’s

sales. Princz, 26 F.3d at 1172 (citation and internal quotation

marks omitted).

Alimport is the exclusive importer in Cuba of foodstuffs

from the United States, meaning that all U.S. goods on

CIMEX’s shelves are procured through Alimport. See Second

Valmaña Decl. ¶ 6, J.A. 2039–40. Alimport appears to make

entirely independent decisions about the source country of the

goods it imports. The defendants represent that CIMEX “does

not give any direction to Alimport about the country from

where the products should be sourced, the companies from

which the products should be purchased, or the brands of a

product,” and Alimport “decides all this on its own” and

“not . . . as an agent of CIMEX (Cuba).” Id., J.A. 2040. A

report submitted into the record indicates that Alimport “has

wide discretion to choose the foreign companies and countries

from which to make food purchases.” U.S. Int’l Trade

Comm’n, U.S. Agricultural Sales to Cuba: Certain Economic

Effects of U.S. Restrictions at 1-5 (2007), J.A. 1604.

Considerations that influence Alimport’s buying decisions

include economic factors, such as “the availability of bartering

and credit financing,” “[p]urchase price, transportation cost,

quality, and delivery considerations,” along with non-

economic factors such as “political motivations.” Id. at 2-13,

J.A. 1620. The report even suggests that Alimport may decline

to source from the United States altogether if U.S. “laws or

regulations” make it “unavailable” as a supplier. See id. That

suggestion indicates that Alimport’s decision to import goods

for CIMEX from the United States is not a foregone

conclusion.

To be sure, CIMEX and Alimport agree on the specific

types and amounts of products that Alimport will procure for

CIMEX. See Exxon, 534 F. Supp. 3d at 21 (citing Second

Valmaña Decl. ¶ 6, J.A. 2040). But the record indicates that

CIMEX never specifies that Alimport must buy goods from the

United States, meaning Alimport’s decision to purchase U.S.

goods is unrelated to any direction from CIMEX. The

defendants’ declaration states that CIMEX does not specify

even the “brands of a product” when placing an order through

Alimport. Second Valmaña Decl. ¶ 6, J.A. 2040. On that

understanding, Alimport is the key player causing a “direct

effect in the United States,” 28 U.S.C. § 1605(a)(2), and the

purchase of U.S. goods at CIMEX stations is not an “immediate

consequence of” CIMEX’s “activity.” See Weltover, 504 U.S.

at 618 (citation omitted). Insofar as the sale of U.S. goods by

CIMEX occurs only because Alimport opts to purchase the

products from the United States without input or

encouragement from CIMEX, CIMEX would not cause the

direct effect in the United States.

CIMEX, however, might still be said to cause a direct

effect in the United States if it has sufficient and continuing

awareness that the goods it receives from Alimport originate

from the United States—in other words, if CIMEX knows it is

all but ordering U.S. goods when it places an order with

Alimport. Such knowledge would suggest that, by ordering

goods through Alimport, CIMEX causes a “direct effect” by

inducing the purchase of what it knows and anticipates would

be U.S. goods, even if CIMEX does not specifically request the

country of origin. The subsequent inflow of money, outflow of

goods, and stimulation of demand in the United States would

then be fairly characterized an “immediate consequence” of

CIMEX’s decisions to continue procuring goods through

Alimport and to sell those goods on confiscated property. See

id.; cf. Goodman Holdings v. Rafidain Bank, 26 F.3d 1143,

1147 (D.C. Cir. 1994) (Wald, J., concurring) (suggesting that a

failure to make a payment could have a direct effect in the

United States if there were a “longstanding consistent

customary practice” of payments using New York bank

accounts). For example, if Alimport supplies CIMEX with

U.S. goods year after year, and if CIMEX knows and

continuously approves of that pattern, CIMEX would be unable

to insulate itself from the jurisdiction of our courts by invoking

Alimport’s role as an intermediary.

On remand, the district court may find evidence that

CIMEX has sufficient awareness that the goods it sells at its

stations originate from the United States such that Alimport’s

role as a third party does not preclude finding direct effects

caused by CIMEX. The district court did not engage in that

kind of analysis, though, and we again leave it to that court to

conduct the inquiry in the first instance.

* * * * *

For the foregoing reasons, we vacate the district court’s

denial of CIMEX’s motion to dismiss and remand for further

proceedings consistent with this opinion.

So ordered.

RANDOLPH, Senior Circuit Judge, dissenting:

In February 1996, the Cuban military shot down two small

civilian planes on a humanitarian mission off the coast of Cuba.

Three U.S. citizens and one permanent U.S. resident from Cuba

were killed. Outraged, Congress passed and President Clinton

signed into law the Cuban Liberty and Democratic Solidarity

(LIBERTAD) Act of 1996. Pub. L. No. 104-114, 110 Stat. 785

(codified at 22 U.S.C. §§ 6021 et seq.).

Passage of this legislation established a specific,

independent, and exclusive cause of action for American

nationals whose property the Cuban government had confiscated

decades earlier. The liability of those trafficking in such

property does not depend on the Foreign Sovereign Immunities

Act, 28 U.S.C. §§ 1602 et seq. The majority holds otherwise. I

therefore dissent.

In 1960 the Cuban government, then under Fidel Castro,

issued an edict nationalizing all “property and enterprises . . .

owned by the juridical persons who are nationals of the United

States.” See Banco Nacional de Cuba v. Sabbatino, 307 F.2d

845, 849 (2d Cir. 1962) (quoting Exec. Power Resol. No. 1

(1960), Cuba), rev’d, 376 U.S. 398 (1964); see also 22 U.S.C.

§ 6081(3). At the time U.S. nationals “either owned or held

significant investments in Cuba’s electric company, its telephone

system, a wide variety of mining operations, the petroleum

sector, hotels, sugar and other agricultural products,” and more.

David Kaye, The Helms-Burton Act: Title III and International

Claims, 20 HASTINGS INT’L & COMP. L. REV. 729, 730 (1997).

Four years later, in 1964, Congress responded with the

Cuban Claims Act, authorizing the U.S. Foreign Claims

Settlement Commission to determine the amount and validity of

“claims by nationals of the United States against the Government

of Cuba . . . for losses resulting from the nationalization,

expropriation, intervention, or other taking of . . . property . . .

owned wholly or partially, directly or indirectly” by U.S.

nationals “at the time” of the taking. Pub. L. No. 88-666

§ 503(a), 78 Stat. 1110, 1110-11 (1964) (codified as amended at

22 U.S.C. § 1643b(a)). The Commission ultimately certified

$1.9 billion in claims.

With respect to Exxon’s claim, the Commission determined,

“in accordance with applicable substantive law, including

international law,”1 that Exxon (then called Standard Oil) had

suffered a loss of $71,611,002.90 resulting from Cuba’s

confiscation of all property in Cuba held by Exxon’s wholly-

owned subsidiary. See Standard Oil Co., F.C.S.C. Decision No.

CU-0938, Claim No. CU-3838, at 9 (Sept. 3, 1969). The

Commission certified Exxon’s claim in that amount, plus annual

interest of 6 percent beginning on July 1, 1960, “to the date of

settlement.” Id. at 10.

But in the decades after Castro’s seizure of property, U.S.

claimants like Exxon had no effective means of obtaining

compensation. Title III of the LIBERTAD Act in 1996 filled

that gap. Title III created a cause of action; required courts to

accept the Commission’s certification of a claim as “conclusive

proof of ownership of an interest in property”; and provided

federal courts with a jurisdictional basis for such actions by

stripping Cuban instrumentalities of sovereign immunity. 22

U.S.C. §§ 6082, 6083(a)(1).

Title III’s civil remedy is against those who “traffic[]” in the

confiscated property. 22 U.S.C. § 6082(a)(1)(A). Its purpose

was not only “to provide protection against wrongful

confiscations” of the property of U.S. nationals, id. § 6081(10),

22 U.S.C. § 1643b(a). See also 22 U.S.C. § 1623(a)(2)(B),

which requires the Commission to apply the “applicable principles of

international law, justice, and equity.”

but also to discourage “transactions involving [this] confiscated

property, and in so doing to deny the Cuban regime the capital

generated by such ventures.” H. Rep. No. 104-202, pt. 1, at 39

(1995); see also 22 U.S.C. §§ 6022, 6081(6). After a series of

suspensions, see 22 U.S.C. § 6085(b), Title III finally went into

effect on May 2, 2019.2 Exxon filed its lawsuit on the same day.

The question raised in this appeal is framed as whether there

is subject-matter jurisdiction over Exxon’s suit. The majority

holds that the Foreign Sovereign Immunities Act (FSIA)—not

Title III—provides the answer. As a result, unless Exxon

satisfies one of the exceptions to foreign sovereign immunity in

the FSIA, the defendants, as instrumentalities of Cuba, are

“immune from the jurisdiction” of federal and state courts. 28

U.S.C. § 1604.

That mistaken conclusion rests in large measure on Supreme

Court opinions stating, in one way or another, that the FSIA is

“the sole basis for obtaining jurisdiction over a foreign state in

the courts of this country.” Majority Op. at 8–9 (quoting OBB

Personenverkehr AG v. Sachs, 577 U.S. 27, 30 (2015))

(emphasis omitted). It is true that the Supreme Court and this

court have repeatedly referred to the exclusive nature of the

FSIA. But in each case Title III did not apply for at least one of

three reasons. One, it did not exist at the time. Argentine

Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443

(1989). Two, it was not in effect because the President had

suspended its cause of action. Sachs, 577 U.S. at 30; Republic

Title III authorizes the President to suspend its provisions for

renewable six-month periods if he determines that suspension would

advance U.S. interests and expedite a transition to democracy in Cuba.

22 U.S.C. § 6085(b)–(c). Beginning with President Clinton, each

President continually suspended Title III, until President Trump let the

suspensions lapse.

of Austria v. Altmann, 541 U.S. 677, 699 (2004). Or three, the

plaintiffs’ claims did not arise out of or relate to Cuba’s

confiscations. Turkiye Halk Bankasi A.S. v. United States, 598

U.S. 264, 278 (2023); Doe v. Taliban, 101 F.4th 1, 10 (D.C. Cir.

2024); Simon v. Republic of Hungary, 77 F.4th 1077, 1090 (D.C.

Cir. 2023), cert. granted, No. 23-867, __ S. Ct. ___, 2024 WL

3089537, at *1 (U.S. June 24, 2024); Wye Oak Tech., Inc. v.

Republic of Iraq, 24 F.4th 686, 690 (D.C. Cir. 2022); Valambhia

v. United Republic of Tanzania, 964 F.3d 1135, 1139 (D.C. Cir.

2020).

Not one of these opinions mentions Title III. When

“questions of jurisdiction” are “passed on in prior decisions sub

silentio,” a later court is not “bound when a subsequent case

finally brings the jurisdictional issue before [it].” Hagans v.

Lavine, 415 U.S. 528, 535 n.5 (1974). And in one of the leading

cases the majority invokes, the Supreme Court stated what

should be obvious—that “general language” in its opinions

should not be applied to “quite different circumstances that the

Court was not then considering.” Turkiye Halk Bankasi A.S.,

598 U.S. at 278 (citation omitted); see also Cohens v. Virginia,

19 U.S. (6 Wheat.) 264, 399 (1821) (Marshall, C.J.) (“If [general

expressions] go beyond the case, they may be respected, but

ought not to control the judgment in a subsequent suit when the

very point is presented for decision.”). Thus, decisions dealing

only with jurisdiction under the FSIA without considering Title

III cannot possibly control the issue posed in this case. See, e.g.,

Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 144

(2011).

As to that issue and contrary to the majority’s view, Title III

is an exclusive and independent remedy in no wise dependent

upon the FSIA.

Title III, considered alone, deprives the Cuban defendants of

immunity from suit. Here are the words: “any person that . . .

traffics in property which was confiscated by the Cuban

government on or after January 1, 1959, shall be liable to any

United States national who owns the claim to such property for

money damages.” 22 U.S.C. § 6082(a)(1)(A). “[P]erson” is

defined to include “any agency or instrumentality of a foreign

state.” Id. § 6023(11).

The Supreme Court has held that nearly identical statutory

language waives the sovereign immunity of the U.S.

government. Dep’t of Agric. Rural Dev. Rural Hous. Serv. v.

Kirtz, 601 U.S. 42, 50 (2024); see also Mowrer v. U.S. Dep’t of

Transp., 14 F.4th 723, 729 (D.C. Cir. 2021) (same). In Kirtz, the

Court interpreted the Fair Credit Reporting Act (FCRA), a

consumer protection statute. 601 U.S. at 45. Two provisions

were relevant to its analysis. Id. at 50–51. First, the FCRA

imposes civil liability on “[a]ny person” who willfully or

negligently fails to comply with the statute’s provisions. 15

U.S.C. §§ 1681n(a), 1681o(a). Second, the FCRA defines

“person” to “mean[],” among other things, “any . . . government

or governmental subdivision or agency.” Id. § 1681a(b). With

those two provisions, the Court held, “Congress has explicitly

permitted consumer claims for damages against the

government.” 601 U.S. at 51. Dismissing such actions on

immunity grounds would “effectively negate suits Congress has

clearly authorized.” Id. (internal quotation marks and alteration

omitted).

Title III establishes that “any person,” including “any

agency or instrumentality of a foreign state,” that traffics in

expropriated property confiscated by the Cuban Government

“shall be liable” to U.S. nationals with claims to that property.

22 U.S.C. §§ 6023(11), 6082(a)(1)(A) (emphasis added).

Compare that language with the FCRA’s: “Any person,”

including “any . . . government or governmental subdivision or

agency,” that violates the statute’s requirements “is liable to

th[e] [affected] consumer.” 15 U.S.C. §§ 1681a(b), 1681n(a),

1681o(a) (emphasis added).

There is scarcely a difference between the two statutes in

terms of language or function. Both impose civil liability on any

“person.” And both define “person” to include governmental

instrumentalities.3 The Supreme Court has ruled that legislation

of the 1996 Congress—which enacted both the FCRA’s cause of

action and Title III—“explicitly” abrogated the sovereign

immunity of the United States. See Kirtz, 601 U.S. at 46–47, 51.

And yet, according to the majority opinion, the same Congress

in the same Session using the same language did not bring about

the same result with respect to Cuban agencies. See Majority

Op. at 13–14. Put aside for the moment the obvious

disconnect—that Cuban agencies enjoy more protection from

The majority characterizes Title III as exposing all “foreign

states” to potential liability. Majority Op. at 14. This is doubly

mistaken. Title III does not allow suits against Cuba or any other

foreign state. It applies only to agencies and instrumentalities of

foreign states. See 22 U.S.C. §§ 6023(1), (11), 6082(a)(1)(A); 28

U.S.C. § 1603(a)–(b). In addition it is fanciful to suppose that nations

other than Cuba would “traffic[]” in property that the Cuban

government confiscated. See 22 U.S.C. § 6082(a)(1)(A). Such a

possibility is so remote as to be effectively nonexistent. It comes as no

surprise that the parties have identified no instance in which Cuba has

sold or transferred confiscated property to another foreign sovereign’s

instrumentality that then trafficked in that property. Exxon Mobil

Corp. v. Corporación Cimex S.A., 567 F. Supp. 3d 21, 27 n.3 (D.D.C.

Oct. 8, 2021) (“The court has been given no reason to believe that any

nation other than Cuba could be subject to a Title III claim. Neither

party has identified any instance in which Cuba has sold expropriated

property to another sovereign that now ‘traffics’ in that property.”).

Nor has any such Title III action yet been filed.

lawsuits than agencies of the United States, which would be a

shock. Rather, consider the legal principle underlying the

majority’s analysis—unheard of until now—that Congress must

make an ultra-clear statement to abrogate foreign sovereign

immunity. That principle has no support. Like statutes are to be

treated alike. Title III thus functions as both a cause of action

and an abrogation of immunity. Cf. 22 U.S.C. § 6082(d)

(specifically discussing the enforceability of Title III judgments

against Cuban instrumentalities).

Title III is also specific in comparison to the FSIA. The

majority decides that if Title III is inconsistent with the FSIA,

the FSIA controls. Majority Op. at 8–14. That has it upside-

down. The time-honored canon of statutory construction is that

when two statutes are at odds, the specific prevails over the

general. See, e.g., Morton v. Mancari, 417 U.S. 535, 550–51

(1974); Guidry v. Sheet Metal Workers Nat’l Pension Fund, 493

U.S. 365, 375 (1990); Antonin Scalia & Bryan A. Garner,

READING LAW: THE INTERPRETATION OF LEGAL TEXTS 183–88

(2012).

Title III is specific, the FSIA is general. Title III applies

only to Cuba’s confiscations of property. The FSIA applies to all

nations. Compare 22 U.S.C. § 6082(a)(1)(A), with 28 U.S.C.

§§ 1330, 1604(a), 1605(a). Under Title III only U.S. nationals

may bring an action.4 Under the FSIA anyone may sue,

including aliens. Compare 22 U.S.C. § 6082, with 28 U.S.C.

§§ 1330, 1605. Title III only authorizes actions in which the

A U.S. national “that brings an action under” Title III “may not

bring any other civil action” dealing with “the same subject matter”

under “Federal law.” 22 U.S.C. § 6082(f)(1)(A). FSIA suits are

necessarily “under” federal law. See, e.g., Federal Republic of

Germany v. Philipp, 592 U.S. 169, 185–86 (2021); Saudi Arabia v.

Nelson, 507 U.S. 349, 354, 363 (1993).

amount in controversy exceeds $50,000, while FSIA claims have

no minimum. Compare 22 U.S.C. § 6082(b), with 28 U.S.C.

§ 1330(a).5

There is yet another stark conflict between Title III and the

majority’s application of the expropriation exception in the

FSIA. The majority concludes that the FSIA’s expropriation

exception does not apply because, under international law, the

property Cuba confiscated was owned not by Exxon but by its

subsidiary. Majority Op. at 16–22. But in Title III actions, “the

court shall accept” claims certified by the Foreign Claims

Settlement Commission “as conclusive proof” of violated

property rights. 22 U.S.C. § 6083(a)(1).

This is an action under Title III. See J.A. 18–20, 47–48.

The Commission, which considered international law,

determined that Cuba illegally took Exxon’s rights in property

worth more than $71 million. The statute instructs the courts to

treat Exxon’s ownership of an interest in that property as

“conclusive.” 22 U.S.C. § 6083(a)(1) (emphasis added). Yet in

defiance of that statutory mandate, the majority completely

disregards the Commission’s certification.

The majority also disregards the congressional findings and

statements of purpose in the LIBERTAD Act. Such legislative

pronouncements are important in determining a statute’s

meaning and scope. See, e.g., Bittner v. United States, 598 U.S.

85, 98 n.6 (2023); Scalia & Garner, supra, at 35, 217–20. In the

Act, Congress not only condemned Cuba’s confiscations, 22

U.S.C. § 6081(2)–(3); see also id. § 6021, but also declared that

the Act’s purpose was “to protect United States nationals against

Title III suits are brought under 28 U.S.C. § 1331 (federal

question), see 22 U.S.C. § 6082(c)(1), while suits under the FSIA are

brought under 28 U.S.C. § 1330 (actions against foreign states).

confiscatory takings and the wrongful trafficking in property

confiscated by the Castro regime.” Id. § 6022(6); see also id.

§ 6022(3). “To deter” that trafficking, Congress concluded that

“United States nationals who were the victims of these

confiscations should be endowed with a judicial remedy.” Id.

§ 6081(11). Yet “[t]he international judicial system, as currently

structured lacks fully effective remedies for the wrongful

confiscation of property and for unjust enrichment . . . at the

expense of the rightful owners of the property.” Id. § 6081(8).

The FSIA was part of that system. Congress expressly

determined that Cuba’s wrongful takings required a remedy

beyond what was then available. See 22 U.S.C. § 6081(2). That

remedy is Title III, unencumbered by the FSIA.

One thing more. As the majority points out, some FSIA

provisions do apply to Title III actions. Majority Op. at 11–12

(citing 22 U.S.C. §§ 6023(1), (3), 6082(c)(2) and 28 U.S.C. §

1611(c)). But they have no effect on the outcome of this case.

For example, Title III incorporates the FSIA’s procedures for

service of process. 22 U.S.C. § 6082(c)(2). There would be no

need for such a provision if Congress understood the FSIA to

apply to Title III in toto. For another example, the LIBERTAD

Act amended the FSIA (28 U.S.C. § 1611(c)) to provide that

Cuban “diplomatic” “property” will not be subject to attachment

and execution. The amendment dealt only with what property

may satisfy a judgment in a Title III action. Threshold immunity

for a defendant is a quite different matter. See, e.g., Verlinden

B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493–94 (1983);

Rubin v. Islamic Republic of Iran, 583 U.S. 202, 205 (2018).

The amendment to the FSIA’s execution provision therefore has

nothing to do with Title III’s separate provisions depriving

Cuban instrumentalities of a sovereign immunity defense.

Nor is it compelling that Congress could have stated more

clearly that jurisdiction under Title III does not depend on the

FSIA. Contra Majority Op. at 11. Just because “Congress

knows how to say thus and so” does not mean it necessarily

“would have written thus and so if that is what it really

intended.” Doris Day Animal League v. Veneman, 315 F.3d 297,

299 (D.C. Cir. 2003). Congress “almost always” could write a

provision more clearly. Id.

Because Title III abrogates the defendants’ sovereign

immunity, I would not decide whether the Foreign Sovereign

Immunities Act does so as well.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.