Petition for Writ of Certiorari — Exxon Mobil Corporation, Petitioner v. Corporación Cimex, S.A. (Cuba), et al.

Supreme Court briefDec 27, 2024

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No.

In the Supreme Court of the United States

EXXON MOBIL CORPORATION,

PETITIONER ,

CORPORACIÓN CIMEX, S.A. (CUBA), ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

STEVEN K. DAVIDSON

SHANNEN W. COFFIN

MICHAEL J. BARATZ

MICHAEL G. SCAVELLI

STEPTOE LLP

1330 Connecticut Avenue NW

Washington, DC 20036

JEFFREY B. WALL

Counsel of Record

MORGAN L. RATNER

SULLIVAN & CROMWELL LLP

1700 New York Avenue NW

Suite 700

Washington, DC 20006

(202) 956-7660

wallj@sullcrom.com

MAXWELL F. GOTTSCHALL

SULLIVAN & CROMWELL LLP

125 Broad Street

New York, NY 10004

QUESTION PRESENTED

In 1960, the Cuban government confiscated the

property of American nationals and transferred it to

state-owned enterprises. After years without a diplomatic resolution, Congress enacted the HelmsBurton Act, which created a damages action for

American nationals against “any person . . . that traffics in” such confiscated property.

22 U.S.C.

§ 6082(a)(1). The Act defines “person” to include “any

agency or instrumentality of a foreign state,” id.

§ 6023(11), and expressly contemplates “judgment[s]

against an agency or instrumentality of the Cuban

Government,” id. § 6082(d). The question presented

is:

Whether the Helms-Burton Act abrogates foreign

sovereign immunity in cases against Cuban instrumentalities, or whether parties proceeding under that

Act must also satisfy an exception under the Foreign

Sovereign Immunities Act.

(I)

PARTIES TO THE PROCEEDING

Petitioner is Exxon Mobil Corporation. Respondents are Cuban instrumentalities Corporación Cimex,

S.A. (Cuba), Corporación Cimex, S.A. (Panama), and

Unión Cuba-Petróleo.

(II)

RULE 29.6 DISCLOSURE STATEMENT

Petitioner Exxon Mobil Corporation certifies that

it is a publicly traded corporation and it has no corporate parent. No publicly held corporation owns 10%

or more of Exxon Mobil Corporation’s stock.

(III)

RELATED PROCEEDINGS

United States District Court (D.D.C.):

Exxon Mobil Corp. v. Corporación Cimex, S.A.,

No. 19-cv-01277 (April 20, 2021)

United States Court of Appeals (D.C. Cir.):

Exxon Mobil Corp. v. Corporación Cimex, S.A.,

No. 21-7127 (July 30, 2024)

(IV)

TABLE OF CONTENTS

Page

Introduction ............................................................................1

Opinions below ........................................................................5

Jurisdiction ..............................................................................5

Statutory provisions involved ...............................................5

Statement of the case.............................................................5

A. Factual background ....................................................5

B. Procedural background ..............................................9

Reasons for granting the petition ......................................14

I. The decision below is wrong ..........................................15

A. The Helms-Burton Act abrogates the

sovereign immunity of Cuban

instrumentalities.......................................................15

B. The FSIA does not preclude the Helms-Burton

Act’s independent abrogation of sovereign

immunity .....................................................................24

II. The decision below warrants immediate review ........28

A. The question presented is important ......................28

B. There is no realistic possibility of further

percolation ..................................................................30

C. This case is an excellent vehicle ..............................32

Conclusion .............................................................................34

(V)

Appendix A — Court of appeals opinion

(July 30, 2024) ..................................................................1a

Appendix B — District court opinion

(April 20, 2021) ............................................................. 52a

Appendix C — Decision of the U.S. Foreign Claims

Settlement Commission (Sept. 3, 1969) .................. 109a

Appendix D — Statutory provisions ............................ 126a

(VI)

TABLE OF AUTHORITIES

Page(s)

Cases:

Alden v. Maine,

527 U.S. 706 (1999) ................................................... 18

Amgen v. Sanofi,

598 U.S. 594 (2023) ................................................... 31

Arellano v. McDonough,

598 U.S. 1 (2023) ....................................................... 31

Argentine Republic v. Amerada Hess

Shipping Corp.,

488 U.S. 428 (1989) ....................................... 11, 25, 26

Atlantic Richfield Co. v. Christian,

590 U.S. 1 (2020) ....................................................... 22

Bolivarian Republic of Venezuela v. Helmerich

& Payne Int’l Drilling Co.,

581 U.S. 170 (2017) ................................................... 31

Department of Agriculture Rural Development

Rural Housing Service v. Kirtz,

601 U.S. 42 (2024) ......................... 3, 12, 15-19, 25, 29

Dorsey v. United States,

567 U.S. 260 (2012) ............................................. 24-25

Exxon Mobil Corp. v. Corporación CIMEX S.A.,

2021 WL 6805533 (D.D.C. Nov. 23, 2021) ............... 5

FDIC v. Meyer,

510 U.S. 471 (1994) ................................................... 17

Federal Republic of Germany v. Philipp,

592 U.S. 169 (2021) ................................................... 31

Franchise Tax Bd. of Calif. v. Hyatt,

587 U.S. 230 (2019) ................................................... 25

(VII)

Harrow v. Department of Def.,

601 U.S. 480 (2024) ................................................... 30

OBB Personenverkehr AG v. Sachs,

577 U.S. 27 (2015) ............................................... 26, 27

Republic of Austria v. Altmann,

541 U.S. 677 (2004) ............................................. 26, 27

Rudisil v. McDonough,

601 U.S. 294 (2024) ................................................... 30

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

598 U.S. 264 (2023) ....................................... 26, 27, 31

United States v. Clarke,

33 U.S. 436 (1834) .................................................... 25

Verlinden B. V. v. Central Bank of Nigeria,

461 U.S. 480 (1983) ................................................... 25

Statutes:

Cuban Liberty and Democratic Solidarity

(LIBERTAD) Act of 1996,

22 U.S.C. § 6021 et seq. .............................................. 7

§ 6022 ....................................................................... 8

§ 6023 ...................................................2, 8, 15, 126a

§ 6064 ..................................................................... 20

§ 6081 .................... 2-4, 7-8, 17, 20, 23, 27-28, 132a

§ 6082 ........................ 2, 8-9, 15-16, 20-21, 28, 134a

§ 6083 ............................................................. 8, 144a

§ 6085 ...................................................2, 9, 27, 146a

Foreign Sovereign Immunities Act,

28 U.S.C. § 1602 et seq. .............................................. 3

§ 1604 ........................................................... 10, 149a

§ 1605 ..................................................... 10-12, 149a

§ 1610 ........................................................... 22, 158a

§ 1611 ..................................................... 22-23, 164a

(VIII)

Pub. L. No. 88-666, 78 Stat. 1110,

22 U.S.C. § 1643 et seq. .............................................. 6

§ 1643b ..................................................................... 6

15 U.S.C.

§ 1681a .................................................................. 12, 16

§ 1681n........................................................................ 16

§ 1681o ........................................................................ 16

21 U.S.C.

§ 2302 .......................................................................... 29

§ 2313 .......................................................................... 29

§ 2314 .......................................................................... 29

22 U.S.C.

§ 6701 .......................................................................... 29

§ 6726 .......................................................................... 29

§ 6761 .......................................................................... 29

§ 8102 .......................................................................... 29

§ 8141 .......................................................................... 29

§ 8142 .......................................................................... 29

28 U.S.C.

§ 1254 ............................................................................ 5

§ 1292 .......................................................................... 11

§ 1330 .......................................................................... 21

§ 1391 ...................................................................... 4, 30

Other authorities:

U.S. Foreign Claims Settlement Commission,

Section II Completion of the Cuban Claims

Program Under Title V of the International

Claims Settlement Act (1972) ..................... 6-7, 109a

Sup. Ct. R. 10(c) ............................................................. 29

(IX)

In the Supreme Court of the United States

No.

EXXON MOBIL CORPORATION,

PETITIONER ,

CORPORACIÓN CIMEX, S.A. (CUBA), ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

INTRODUCTION

On January 9, 1959, 32-year-old Fidel Castro rode

into an undefended Havana to the celebratory sounds

of church bells and gunfire. For a brief time, Castro

insisted that his revolutionary government would not

be communist. Eighteen months later, his regime had

confiscated the assets of all U.S. businesses in Cuba

and had transferred many of those assets to stateowned enterprises. One of the victims was Exxon,

which lost all its Cuban oil and gas assets—a loss valued at over $70 million (in 1960 dollars) by the U.S.

Foreign Claims Settlement Commission. No compensation was ever paid for these unlawful takings.

(1)

In 1996, Congress sought to remedy that by enacting the Cuban Liberty and Democratic Solidarity

(LIBERTAD) Act, also known as the Helms-Burton

Act. In legislative findings, Congress criticized “[t]he

wrongful confiscation or taking of property belonging

to United States nationals by the Cuban government.”

22 U.S.C. § 6081(2). It also lamented the absence of

“fully effective remedies for the wrongful confiscation

of property” and “use of wrongfully confiscated property by governments.” Id. § 6081(8). To fill that void,

Congress enacted Title III, which “endow[s]” U.S. nationals “who were the victims of [Castro’s] confiscations” “with a judicial remedy in the courts of the

United States.” Id. § 6081(11).

Title III of the Act thus creates a private right of

action allowing the American victims of Castro’s confiscations to sue “any person” who “traffics” in confiscated property, including by possessing, using, transferring, or otherwise profiting from it. 22 U.S.C.

§ 6023(13)(A). Critically, the statute defines covered

“person[s]” to include “any agency or instrumentality

of a foreign state.” Id. § 6023(11). And it expressly

contemplates suits against Cuban instrumentalities.

See, e.g., id. § 6082(d) (barring enforcement of “any

judgment against an agency or instrumentality of the

Cuban Government” if there is a “democratically

elected government in Cuba”).

Until recently, however, parties like Exxon were

unable to bring their Title III claims against the Cuban state-owned companies that continue to hold and

profit off their stolen property. That is because the

Helms-Burton Act authorizes the President to suspend Title III if he concludes that suspension is “nec-

essary to the national interests of the United States.”

22 U.S.C. § 6085(b). From 1996 onward, every President did just that, until President Trump finally allowed the suspensions to lapse on May 2, 2019. Exxon

filed this action that same day.

Now another branch of the federal government has

put up a new barrier to recovery. Over a dissent by

Judge Randolph, the D.C. Circuit held that Title III

claims may proceed against Cuban instrumentalities

only if the suit falls within one of the exceptions to

foreign sovereign immunity contained in the Foreign

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

seq. Forcing Helms-Burton Act claims into the FSIA

framework will deny many claimants the “judicial

remedy” that Congress promised, 22 U.S.C.

§ 6081(11), because many instances of trafficking by

Cuban-owned enterprises may not satisfy any FSIA

exception. Even for litigants willing to try, establishing jurisdiction under the FSIA will at a minimum require costly, protracted, and irrelevant discovery, as

Exxon’s experience in this case demonstrates.

The court of appeals’ conclusion that Title III

plaintiffs must fit their claims within the FSIA misconstrues the Helms-Burton Act’s plain text. Just

last Term, this Court explained that a federal statute

that “creates a cause of action” and “explicitly authorizes suit against a government on that claim” “effects

a clear waiver” of that government’s immunity. Department of Agriculture Rural Development Rural

Housing Service v. Kirtz, 601 U.S. 42, 49-50 (2024)

(citation omitted). Applying Kirtz to the substantively identical text of Title III should lead to the same

result: Congress clearly displaced the foreign sover-

eign immunity to which Cuban instrumentalities are

generally entitled under the FSIA. Any other result

would mean that “Cuban agencies enjoy more protection from lawsuits than agencies of the United States”

or of the 50 States. App., infra, 48a (Randolph, J.,

dissenting). That cannot be right.

The D.C. Circuit’s error warrants this Court’s review. The decision below threatens to close the

courthouse doors to many Title III plaintiffs, who

among them hold tens of billions in potential Title III

claims. That result would overturn the judgment of

the legislative and executive branches, which have

both concluded that the “United States Government

has an obligation to its citizens to provide protection

against wrongful confiscations by foreign nations,”

including through “the provision of private remedies.”

22 U.S.C. § 6081(10). And there is no further percolation to be had on this issue because, as a practical

matter, the federal venue statute limits Title III

claims against Cuban instrumentalities to the District

of Columbia. See 28 U.S.C. § 1391(f).

Like the thousands of other victims of the Castro

regime, Exxon has been waiting since the early 1960s

to receive compensation.

Congress enacted the

Helms-Burton Act to give claimants a path to recovery in federal court, including from Cuban instrumentalities. After decades, the Executive Branch has finally decided that such lawsuits may proceed. The

Judiciary should take yes for an answer. This Court

should grant the petition and reverse.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

1a-51a) is reported at 111 F.4th 12. The opinion of the

district court (App., infra, 52a-108a) is reported at

534 F. Supp. 3d 1.

JURISDICTION

The court of appeals entered judgment on July 30,

2024. On October 11, 2024, Chief Justice Roberts extended the time within which to file a petition for a

writ of certiorari to and including December 27, 2024.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant statutory provisions are reproduced in

the appendix to this petition. App., infra, 126a-165a.

STATEMENT OF THE CASE

A. Factual Background

1. By the late 1950s, Standard Oil Company,

which was later renamed Exxon Mobil Corporation,

had been conducting business in Cuba for decades.

App., infra, 53a-54a. Standard Oil owned several subsidiaries with extensive operations in the country, including its wholly owned subsidiary Esso Standard Oil

S.A. (Essosa). Ibid.

Exxon’s Cuba business came to an abrupt halt

when Castro rose to power. On July 1, 1960, the new

Cuban government appointed an “Intervenor” for “all

the properties and installations that [Essosa] may

have in Cuba.” Complaint ¶ 28, Exxon Mobil Corp.

v. Corporación CIMEX S.A., 2021 WL 6805533

(D.D.C. Nov. 23, 2021). Those properties included an

oil refinery, multiple product terminals and packaging

plants, and 117 service stations and related properties. Id. ¶ 31. The Cuban government then ordered

the transfer of those properties to two state-owned

enterprises: Unión Cuba-Petróleo (CUPET), Cuba’s

state-owned oil company, and Corporación CIMEX

S.A. (Cuba) (CIMEX), a conglomerate. Id. ¶ 68. The

Cuban government never paid any compensation for

the confiscated properties.

2. In 1964, after several years of failed negotiations with Cuba, Congress passed the Cuban Claims

Act, creating a mechanism for U.S. nationals to have

their takings claims adjudicated. Pub. L. No. 88-666,

78 Stat. 1110 (codified at 22 U.S.C. § 1643 et seq.).

The law tasked the U.S. Foreign Claims Settlement

Commission with determining, “in accordance with

applicable substantive law, including international

law, 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 any rights or interests therein owned

wholly or partially, directly or indirectly.” 22 U.S.C.

§ 1643b(a).

In signing the Cuban Claims Act into law, President Johnson emphasized that the Castro regime had

“violated every standard by which the nationals of the

free world conduct their affairs.”

U.S. Foreign

Claims Settlement Commission, Section II Completion of the Cuban Claims Program Under Title V of

the International Claims Settlement Act 69 (1972)

(Commission Report). The Act did not provide for

compensation to victims, and no one expected Castro’s

government to make things right in the near term.

But President Johnson expressed hope that, “one

day,” it would “be possible to settle claims of American nationals whose property has been wrongfully

taken from them.” Id. at 70. To that end, the Commission would “provide for the adjudication of these

claims . . . . while evidence and witnesses are still

available.” Ibid.

In 1969, the Commission certified Standard Oil’s

claim based on the confiscation of Essosa’s assets in

Cuba. The Commission determined that “Standard

Oil Company suffered a loss, as a result of the actions

of the Government of Cuba,” of $71,611,002.90 plus

interest at 6% per year, beginning on July 1, 1960.

App., infra, 124a. All told, the Commission certified

$1.9 billion in claims—excluding interest—held by almost 6,000 claimants. Commission Report 412.

3. Several decades later, another international incident prompted Congress to act again. On February 24, 1996, Cuban fighter jets shot down two private

planes in international air space over the Florida

Straits, killing three U.S. citizens and one permanent

resident who had been conducting volunteer searchand-rescue missions for refugees. The next month,

Congress enacted the Cuban Liberty and Democratic

Solidarity (LIBERTAD) Act of 1996, Pub. L. No. 104114, 110 Stat. 785 (codified at 22 U.S.C. § 6021 et seq.),

also known as the Helms-Burton Act. The Act

strengthened the U.S. embargo and imposed other

sanctions against Cuba or persons who do business in

Cuba.

This case concerns Title III of the Helms-Burton

Act. In that part of the Act, Congress again con-

demned the “wrongful confiscation or taking of property belonging to United States nationals by the Cuban Government.” 22 U.S.C. § 6081(2). Congress also

found that the “international judicial system, as currently structured, lacks fully effective remedies for

the wrongful confiscation of property and for unjust

enrichment from the use of wrongfully confiscated

property by governments and private entities.” Id.

§ 6081(8).

Congress concluded that the “United

States nationals who were the victims of these confiscations should be endowed with a judicial remedy in

the courts of the United States that would deny”

those wrongdoers “any profits from economically exploiting Castro’s wrongful seizures.” Id. § 6081(11);

see id. § 6022 (Title III’s purpose is to “protect United

States nationals against confiscatory takings”).

Title III thus creates a private right of action for

U.S. nationals who “own[] the claim” to property “confiscated by the Cuban Government on or after January 1, 1959.” 22 U.S.C. § 6082(a)(1)(A). Such claimants may sue “any person” who “traffics in” the confiscated property. Ibid. A person “traffics” “in confiscated property if that person knowingly and intentionally,” and without authorization of the U.S. claimant, possesses, uses, or benefits from that property in

a wide variety of ways. Id. § 6023(13)(A) (trafficking

includes selling, distributing, purchasing, managing,

possessing, using, or holding or acquiring an interest).

Title III requires a court to accept the Commission’s

certification of a claim as “conclusive proof of ownership of an interest in property.” Id. § 6083(a)(1). It

also creates a rebuttable presumption that the plaintiff is entitled to the amount of loss certified by the

Commission. Id. § 6082(a)(1)-(2). Congress then provided for treble damages, plus costs and attorney’s

fees. Id. § 6082(a)(3)(A), (a)(3)(C)(ii).

Title III undeniably authorizes suits against Cuban

state-owned instrumentalities. The Act expressly defines the “person[s]” who may be sued for trafficking

to “include[e] any agency or instrumentality of a foreign state.” 22 U.S.C. § 6023(11). Another provision

states that “any judgment against an agency or instrumentality of the Cuban Government” in “an action

brought under this section” may not be enforced

against a “transition government in Cuba or a democratically elected government in Cuba.” Id. § 6082(d).

And another provides that “any claim against the Cuban Government” held by a U.S. national “shall not be

deemed to be an interest in property” subject to otherwise applicable import controls. Id. § 6082(a)(7)(B).

4. The Helms-Burton Act authorizes the President to suspend Title III’s cause of action for 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.” 22 U.S.C. § 6085(b). For 23 years, starting

with President Clinton, every President suspended

the cause of action and kept Title III from taking effect.

On May 2, 2019, the Trump Administration allowed

the suspension to lapse for the first time. It has not

been reinstated since.

B. Procedural Background

1. The same day that President Trump allowed

the previous suspension to expire, Exxon filed this Ti-

tle III action in federal district court in the District of

Columbia. The complaint names three Cuban instrumentalities as defendants: CUPET, the state-owned

oil company that took over Standard Oil’s Cuban refinery, plants, and terminals; CIMEX, the stateowned conglomerate that took over Standard Oil’s

service stations; and Corporación CIMEX S.A. (Panama), an alleged alter ego of CIMEX.

The complaint alleges that, using Essosa’s confiscated property, CUPET operates, explores, produces,

refines, trades, and sells oil products, and thus engages in prohibited trafficking under Title III. App., infra, 58a. The complaint similarly alleges that CIMEX

operates service stations that were built or are maintained on Essosa property. Id. at 57a-58a. Exxon

seeks damages equaling the amount of its Commissioncertified claim, plus pre-judgment interest and treble

damages. Id. at 6a.

2. The Cuban defendants moved to dismiss, arguing that the district court lacks jurisdiction over them

under the FSIA. That statute, enacted two decades

before the Helms-Burton Act, provides that foreign

states and their instrumentalities are generally immune from the jurisdiction of U.S. courts unless an

enumerated exception applies. 28 U.S.C. § 1604.

There is no dispute here that all three defendants are

wholly owned by Cuba. But the parties disputed both

whether it was necessary to satisfy an FSIA exception

and whether the FSIA’s commercial-activity exception or expropriation exception could be met. The

former applies when “the action is based upon a commercial activity” that “causes a direct effect in the

United States.” 28 U.S.C. § 1605(a)(2). The latter

applies when “rights in property taken in violation of

international law are in issue,” “that property or any

property exchanged for such property is owned or operated by an agency or instrumentality of the [expropriating] state,” and “that agency or instrumentality

is engaged in a commercial activity in the United

States.” Id. § 1605(a)(3).

The district court denied the motion to dismiss as

to CIMEX, and permitted jurisdictional discovery as

to the other two defendants. App., infra, 53a. The

court first held, contrary to Exxon’s argument, that

Title III does not separately abrogate the defendants’

foreign sovereign immunity. Id. at 65a. Accordingly,

the court concluded that it could exercise jurisdiction

only if Exxon’s claims fell within an FSIA exception.

The district court then considered the two relevant

FSIA exceptions. It concluded that none of Exxon’s

claims satisfied the FSIA’s expropriation exception.

App., infra, 101a. The court then analyzed the

commercial-activity exception, 28 U.S.C. § 1605(a)(2),

finding it satisfied with respect to CIMEX, but not

the other two defendants. App., infra, 95a. The court

nevertheless permitted “limited jurisdictional discovery” of those defendants. Id. at 104a.

3. On interlocutory appeal, a divided panel of the

court of appeals vacated the district court’s order and

remanded for further jurisdictional discovery and

analysis of the commercial-activity exception as applied to CIMEX.1

CIMEX appealed under the collateral-order doctrine. See

App., infra, 7a. The other two defendants then sought and were

a. The panel majority began by rejecting Exxon’s

argument that Title III displaces the FSIA. App., infra, 8a. Citing several of this Court’s decisions—none

of which addressed a statute enacted after the

FSIA—the court of appeals stated that the FSIA

“provides the sole basis for obtaining jurisdiction over

a foreign state.” Id. at 8a (quoting Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428,

443 (1989)). The court recognized that Title III defines covered “persons” to include foreign agencies

and instrumentalities, and that the statute thus “contemplates that its cause of action can encompass suits

against a foreign state.” Id. at 10a. But that was not

enough, the court concluded, given “the absence of . . .

language in Title III” that “mention[s] jurisdiction or

[sovereign] immunity expressly.” Id. at 11a.

On that point, the panel majority attempted to distinguish this Court’s recent decision in Kirtz. There,

this Court unanimously held that the Fair Credit Reporting Act “effects a clear waiver of” the federal

government’s sovereign immunity by (i) imposing civil

liability on “any person” who fails to comply with the

Act, and (ii) defining such “person[s]” to include “any

. . . government or governmental subdivision or agency.” 601 U.S. at 50 (quoting 15 U.S.C. §§ 1681a(b),

1681n(a)). The court of appeals gave two reasons for

declining to read Title III’s virtually identical langranted permission to appeal under 28 U.S.C. § 1292(b). See Exxon

Mobil Corp. v. Corporación CIMEX S.A., 2021 WL 6805533, at *1

(D.D.C. Nov. 23, 2021). Exxon cross-appealed on the Title III question.

guage as displacing the FSIA. First, the court reasoned, the “foreign-relation concerns” unique to foreign sovereign immunity “bolster[] the need to respect Congress’s balancing of those considerations in

the provisions of the FSIA.” App., infra, 14a. Second, unlike in Kirtz, the conclusion that Cuban instrumentalities continue to enjoy immunity would not

make Title III “completely pointless,” because trafficking claims could still be brought against some foreign instrumentalities “if an FSIA exception applies.”

Id. at 15a.

The court of appeals then turned to the FSIA exceptions. It agreed with the district court that Exxon

“failed to allege any ‘rights in property taken in violation of international law.’” App., infra, 19a (quoting

28 U.S.C. § 1605(a)(3)). The property seized in 1961,

the court reasoned, “was owned by Exxon’s subsidiary, Essosa,” meaning that Exxon’s interest was “as a

shareholder” in Essosa. Ibid. And the court concluded that “international law generally does not recognize a shareholder’s right in property owned by the

corporation.” Ibid.

Next, the court of appeals addressed the commercialactivity exception as applied to CIMEX. Under that

exception, the alleged conduct must “bear a connection with a commercial activity in Cuba” and “cause[]

a direct effect in the United States.” App., infra, 29a30a (internal quotation marks omitted). The court

found the first element satisfied based on CIMEX’s

operation of service stations and a remittanceprocessing business. Id. at 34a. But the court remanded for jurisdictional discovery on the directeffect element. The court reasoned that Exxon could

establish a direct effect in the United States if, among

other things, it could show that the remittanceprocessing business that CIMEX operates at service

stations located on former Essosa property causes a

net “outflow of money from the United States to Cuba.” Id. at 35a.

b. Judge Randolph dissented. He would have

held that “Title III, considered alone, deprives the

Cuban defendants of immunity from suit,” leaving no

need for Exxon to fit its claims within an exception to

the FSIA. App., infra, 45a. Judge Randolph found

“scarcely a difference between” the law at issue in

Kirtz and Title III “in terms of language or function,”

and saw no reason to give foreign sovereigns greater

solicitude than federal or state governments in determining whether Congress has superseded a background rule of immunity. Id. at 47a. Indeed, Judge

Randolph explained, the notion that “Cuban agencies

enjoy more protection from lawsuits than agencies of

the United States . . . would be a shock” to the Congress that wrote Title III. Id. at 48a.

REASONS FOR GRANTING THE PETITION

Title III of the Helms-Burton Act displaces the

foreign sovereign immunity that Cuban instrumentalities otherwise would enjoy under the FSIA. The panel majority concluded otherwise by relying on a

magic-words requirement for revoking foreign sovereign immunity that this Court has rejected in cases

involving federal and state sovereign immunity. As

Judge Randolph explained, that distinction has no basis in precedent or principle. And it would gut a stat-

ute specifically enacted to create an effective judicial

remedy against Cuban instrumentalities.

The decision below imposes yet another in a long

line of barriers to recovery for victims of the Castro

government’s illegal confiscations. It heavily burdens

—if not wipes out—billions in claims held by thousands of American businesses and individuals. It

pushes Title III claimants into the FSIA, even though

Congress passed the Helms-Burton Act to control the

specific question here. And it undercuts the judgment

of the Executive Branch that has finally allowed these

claims to go forward. This Court should grant review

on this important question, which has real separationof-powers consequences.

I. THE DECISION BELOW IS WRONG

Title III abrogates the sovereign immunity of Cuban instrumentalities in suits by U.S. nationals for

trafficking in their confiscated property. The text of

Title III expressly authorizes damages actions

against Cuban instrumentalities. Other provisions of

the Helms-Burton Act, its history, and its core purposes confirm that it contemplates such suits. The

FSIA provides generally applicable exceptions from

its grant of foreign sovereign immunity, but Congress

specifically abrogated immunity here—and that specific exception stands on its own.

A. The Helms-Burton Act Abrogates The Sovereign Immunity Of Cuban Instrumentalities

1. By its plain text, Title III of the Helms-Burton

Act abrogates any sovereign immunity that Cuban instrumentalities would otherwise possess under the

FSIA.

a. Title III creates a cause of action for damages

against “any person . . . that traffics in” property confiscated by the Cuban government.

22 U.S.C.

§ 6082(a)(1). It defines “person” to include “an agency or instrumentality of a foreign state.”

Id.

§ 6023(11). The statute thus authorizes damages suits

against Cuban instrumentalities.

Under this Court’s precedents, the plain text of Title III means what it says. As the Court explained in

Kirtz, it has consistently found “clear waiver[s]” of

sovereign immunity in statutes that both “‘create[] a

cause of action’ and ‘explicitly authorize[] suit against

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

Financial Oversight and Management Bd. for P.R. v.

Centro De Periodismo Investigativo, Inc., 598 U.S.

339, 347 (2023)). Although such statutes “may not

discuss sovereign immunity in so many words,” they

“clearly demonstrate[] [an] intent to subject” the government “to suit for money damages.” Id. at 50 (quoting Kimel v. Florida Bd. of Regents, 528 U.S. 62, 74

(2000)).

“Guided by these principles,” the Court in Kirtz

unanimously held that the Fair Credit Reporting Act

(FCRA) waives the federal government’s immunity

from damages actions. 601 U.S. at 49. The FCRA,

the Court explained, “authorizes consumer suits for

money damages against ‘[a]ny person’ who willfully or

negligently fails to comply” with certain directives,

and “defines the term ‘person’” “to include ‘any . . .

governmental . . . agency.’” Ibid. (quoting 15 U.S.C.

§§ 1681a(a), 1681n(a), 1681o(a)). Congress thus “explicitly permitted . . . claims for damages against the

government,” removing the sovereign immunity to

which the federal government would otherwise be entitled. Id. at 51. Indeed, the Court stated, it

“need[ed] look no further to resolve” the question

than the combination of the claim authorized and the

statutory definition of “person.” Ibid.

Kirtz’s reasoning directly controls this case. The

language of Title III is substantively identical to the

language of the FCRA. Just like the FCRA, Title III

creates a cause of action for damages against “any

person” who takes a prohibited action. 22 U.S.C.

§ 6082(a)(1)(A). Just like the FCRA, Title III expressly defines the term “person” to cover governmental entities that would otherwise be entitled to

sovereign immunity. Id. § 6082(a)(1)(A) (“The term

‘person’ means any person or entity, including any

agency or instrumentality of a foreign state.”). Thus,

just like the FRCA, Title III “explicitly permit[s] . . .

claims for damages against” a governmental entity,

and dismissing such suits on immunity grounds

“would effectively negate suits Congress has clearly

authorized.” Kirtz, 601 U.S. at 51 (alteration and citation omitted). One “need look no further” to find a

clear abrogation of sovereign immunity. Id. at 50.

Indeed, the case for abrogation here is stronger

than it was in Kirtz. The federal government is just

one among thousands of possible defendants under

the FCRA, which applies to all entities that provide or

obtain lending information to or from credit agencies.

601 U.S. at 46. By contrast, Congress understood

that the entities that would most frequently violate

Title III’s prohibition on “trafficking” in confiscated

property would be Cuban instrumentalities. As Congress noted, such property is often still held by state-

owned enterprises, like CUPET or CIMEX. See 22

U.S.C. § 6081(5) (“[T]he Cuban Government . . . use[s]

property and assets some of which were confiscated

from United States nationals.”); id. § 6081(6) (“This

‘trafficking’ in confiscated property provides badly

needed financial benefit . . . to the current Cuban

Government.”). That is all the more reason to conclude that Congress meant what it said in authorizing

Title III actions against foreign instrumentalities.

b. The panel majority tried to distinguish Kirtz in

three ways. None is persuasive.

First, the court of appeals reasoned that “whether

there has been a waiver of sovereign immunity” and

“whether the source of the substantive law upon

which the claimant relies provides an avenue of relief”

are two different inquiries. App., infra, 11a (quoting

FDIC v. Meyer, 510 U.S. 471, 483-484 (1994)). In the

court’s view, the fact that Title III “provides an avenue of relief” against foreign states therefore “does

not tell us whether there has been a waiver of sovereign immunity.” Ibid. (internal quotation marks omitted). Kirtz expressly rejected that reasoning. There,

the government likewise argued—relying on Meyer—

that “a plaintiff must identify both a ‘source of substantive law’ that ‘provides an avenue for relief’ and ‘a

waiver of sovereign immunity,’” in separate provisions. 601 U.S. at 53. This Court squarely rejected

that argument. “At the risk of repeating ourselves,”

it held, “a cause of action authorizing suit against the

government may waive sovereign immunity even

without a separate waiver provision,” and Meyer does

not “say anything to the contrary.” Ibid.

Second, the court of appeals thought foreign sovereign immunity might be different. It observed that 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.” App., infra, 14a (citation omitted). For

one thing, sensitive judgments also pervade waivers

of federal and state sovereign immunity—which are

equally subject to Kirtz’s interpretive approach. See

601 U.S. at 50 (citing Kimel, 528 U.S. at 74); see also

Alden v. Maine, 527 U.S. 706, 715 (1999) (“The generation that designed and adopted our federal system

considered immunity from private suits central to

sovereign dignity.”). More fundamentally, the argument misses the point that Congress rebalanced the

specific “sensitive and diplomatic national-security

judgments” at play when it subjected Cuban instrumentalities to damages suits in Title III. That deliberate legislative judgment is entitled to just as much

respect as Congress’s earlier general judgment in the

FSIA.

Third, the court of appeals read Kirtz to require a

showing that, absent a waiver of immunity, “the conferral of a cause of action against the government

would have been completely pointless.” App., infra,

15a. The court observed that Title III suits can still

proceed against foreign sovereigns “if an FSIA exception applies.” Ibid. But Kirtz did not require a plaintiff to show that a cause of action would be “completely pointless” if sovereign immunity remains intact.

Rather, this Court asked whether a finding of immun-

ity would negate at least some “suits Congress has

clearly authorized.” 601 U.S. at 51.

It would here. As noted above, Congress expected

that many Title III actions would be brought against

Cuban-owned entities, which would most frequently

be the ones “trafficking.” See supra, p. 17. Yet there

are many ways in which Cuban instrumentalities

might “traffic” in confiscated property under Title III

that will never satisfy an FSIA exception—including

by merely “possess[ing]” or “hold[ing] an interest in

confiscated property,” id. § 6023(13)(A)(i), or by engaging in commercial activity outside the United

States.2 Applying the FSIA therefore will “effectively

negate” a number of claims that “Congress has clearly

authorized.” Kirtz, 601 U.S. at 50 (citation omitted).

2. The Helms-Burton Act contains several other

textual indicia that it displaces the FSIA’s general

grant of immunity to foreign-state instrumentalities.

a. First, several provisions plainly assume that

Title III actions can and will be brought against Cuban government entities in particular.

Section

6082(d), for example, states that in “an action brought

under this section, any judgment against an agency or

instrumentality of the Cuban Government shall not be

enforceable against an agency or instrumentality of

either a transition government or a democratically

Indeed, the decision below makes it even more difficult for

Title III plaintiffs to satisfy the expropriation exception by holding

that companies that operated in Cuba through wholly owned subsidiaries cannot “allege any ‘rights in property taken in violation of

international law.’” App., infra, 19a.

elected government in Cuba.” 22 U.S.C. § 6082(d)

(emphasis added). Such “judgment[s]” can of course

only arise in suits against Cuban agencies and instrumentalities.

Other provisions similarly anticipate “actions” or

“claims” “against the Cuban Government.”

See

22 U.S.C. § 6064(a) (after certifying that a transition

government is in power, the President is authorized

to “suspend” Title III “with respect to actions thereafter filed against the Cuban Government”); id.

§ 6082(a)(1)(B) (U.S. nationals’ “claim[s] against the

Cuban Government” under Title III “shall not be

deemed to be an interest in property” subject to licensing requirements). And Congress’s statutory

findings likewise note that one of the core purposes of

Title III was to correct for the lack of “fully effective

remedies for the wrongful confiscation of property . . .

by governments,” by “endow[ing]” the “victims of

these confiscations” “with a judicial remedy in the

courts of the United States.” Id. §§ 6081(8), (11).

Second, Title III specifically provides that it supersedes general jurisdictional rules in the event of a

conflict. The statute states that “the provisions of Title 28”—which include the FSIA—“apply to actions

under this section to the same extent” as they apply to

“any other action brought under section 1331 of Title

28,” “[e]xcept as provided in this subchapter.”

22 U.S.C. § 6082(c)(1) (emphasis added). In other

words, Title III specifically recognized that it might

depart from standard jurisdictional or procedural

rules for suits in federal court, and confirmed that

those departures control.

Section 6082(c)(1) is relevant for another reason,

too: it characterizes Title III suits as “action[s]

brought under section 1331 of Title 28.” 22 U.S.C.

§ 6082(c)(1). As Judge Randolph pointed out in dissent below, Section 1331 is the general federalquestion jurisdiction statute. Yet “suits under the

FSIA are brought under 28 U.S.C. § 1330,” which is a

separate grant of jurisdiction that depends on meeting the FSIA’s exceptions. App., infra, 49a (Randolph, J., dissenting). By describing Title III actions

as “brought under section 1331,” rather than Section

1330, Congress made clear that the FSIA does not

apply to such actions and Title III plaintiffs need not

satisfy the FSIA’s exceptions to proceed.

Third, Title III expressly incorporates the FSIA’s

procedures for service of process on foreign instrumentalities. See 22 U.S.C. § 6082(c)(2). There would

have been no need for Congress to do that if the FSIA

already applied wholesale in Title III actions. The

panel majority recognized this point, but did not offer

a direct response. App., infra, 11a.

b. The panel majority instead focused on one supposedly contrary textual indicator: Section 1611(c) of

the FSIA, which Congress added as part of the

Helms-Burton Act. App., infra, 12a. Section 1611(c)

states that, in Title III actions, “[n]otwithstanding the

provisions of section 1610” of the FSIA, “the property

of a foreign state shall be immune from attachment

and from execution to the extent” the property is used

for diplomatic facilities. 28 U.S.C. § 1611(c). Section

1610, in turn, specifies circumstances in which the

property of foreign instrumentalities is not immune

from attachment and execution. See id. § 1610. The

court below seized on Section 1611(c)’s “notwithstanding” clause. In its view, Congress would not have

needed to specify that Section 1610’s exceptions from

immunity do not apply to Title III actions unless

Congress “understood foreign states to enjoy FSIA

immunity in Title III actions in the first place.” App.,

infra, 12a.

That does not follow. For starters, Section 1611(c)

at most has implications for execution. And whatever

Section 1611(c) may imply about the application of the

FSIA’s execution provisions, it cannot overcome the

clear textual evidence that Congress superseded the

FSIA’s separate jurisdictional provisions. On the

key jurisdictional question presented here, there are

far more express textual and structural clues.

At any rate, Section 1611(c) does not even imply

anything about the application of the FSIA’s execution rules in Title III cases. Instead, the “notwithstanding” clause merely heads off any possible misunderstanding about the interaction of Sections 1610

and 1611(c). See Atlantic Richfield Co. v. Christian,

590 U.S. 1, 16 (2020) (A “notwithstanding” clause does

not “expand or contract the scope of [any] provision

by implication”; it simply “explain[s] what happens in

the case of a clash.”) (citation omitted). Section 1610

states that property of a foreign instrumentality

“shall” be subject to attachment and execution in certain circumstances, full stop. 28 U.S.C. § 1610. If

Section 1610’s conditions were met in a Title III case,

that could have created a conflict with Section 1611(c),

which states that diplomatic property may never be

used to satisfy a Title III judgment. Id. § 1611(c).

Congress thus reasonably added the “notwithstand-

ing” clause to make sure that Section 1611(c) controls

in those circumstances. That suggests nothing about

whether foreign property is generally immune from

execution in Title III cases.

3. Finally, the history and purpose of Title III

confirm what the text makes clear: Congress intended to subject Cuban instrumentalities to damages actions. Congress found that the federal government

has an “obligation to its citizens to provide protection

against wrongful confiscations by foreign nations and

their citizens, including the provision of private remedies.” 22 U.S.C. § 6081(10). Yet, Congress concluded,

“the international judicial system, as currently structured, lacks fully effective remedies for the wrongful

confiscation of property.” Id. § 6081(8). As Judge

Randolph pointed out, the “FSIA was part of that system” in that it posed a barrier to suits against Cuban

instrumentalities. App., infra, 50a (Randolph, J., dissenting). Thus, to achieve Title III’s goal of “endow[ing] the victims of [Castro’s] confiscations with a

judicial remedy” that is “fully effective,” 22 U.S.C.

§ 6081(12), Congress overrode the FSIA and subjected Cuban instrumentalities to suit directly under the

Helms-Burton Act. The decision below undercuts exactly what Congress was attempting to achieve.

B. The FSIA Does Not Preclude The HelmsBurton Act’s Independent Abrogation Of

Sovereign Immunity

Based on general language in this Court’s decisions, the panel majority adopted the sweeping view

that the FSIA occupies the field of foreign sovereign

immunity. It believed that “jurisdiction in a civil ac-

tion against a foreign sovereign [can] arise only under

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

App., infra, 8a. From that premise, the court reasoned that Congress must “mention[] jurisdiction or

. . . immunity expressly” to depart from the FSIA

baseline. Id. at 12a. (emphasis added). That is all

wrong. Although the FSIA provides the general

framework for foreign sovereign immunity, neither

basic interpretive principles nor this Court’s precedents prevent Congress from modifying that framework in a later enactment, just as Congress may modify any other federal statute.

1. Under basic interpretive principles, the FSIA

does not and cannot control how a later-in-time statute like the Helms-Burton Act is interpreted. For one

thing, “statutes enacted by one Congress cannot bind

a later Congress, which remains free to repeal the

earlier statute,” or “to exempt the current statute

from the earlier statute,” “either expressly or by implication as it chooses.” Dorsey v. United States,

567 U.S. 260, 274 (2012). Moreover, the usual rule is

that “when two statutes are at odds, the specific prevails over the general.” App., infra, 48a (Randolph,

J., dissenting) (citing Morton v. Mancari, 417 U.S.

535, 550-551 (1974)).

The panel majority did not mention either of those

“time-honored canons of construction,” both of which

squarely apply here. App., infra, 48a (Randolph, J.,

dissenting). As discussed above, in Title III, Congress superseded the FSIA for Cuban instrumentalities both “expressly” and “by implication” in numerous ways. Dorsey, 567 U.S. at 274. Title III is also

far more specific than the general FSIA, as it creates

a special cause of action for a targeted group of plaintiffs who typically can sue only the instrumentalities

of one particular nation.

At most, overcoming the general grant of sovereign immunity in the FSIA requires the kind of clear

statement that this Court required—and unanimously

found—in Kirtz. And there, the Court made clear

that Congress “need not use magic words.” Kirtz,

601 U.S. at 48. There is no reason to apply a more

demanding, “ultra-clear statement to abrogate foreign sovereign immunity.” App., infra, 48a (Randolph, J., dissenting). If anything, it should be easier

for Congress to abrogate foreign sovereign immunity

than federal or state sovereign immunity. Foreign

sovereign immunity is “a matter of grace and comity

on the part of the United States, and not a restriction

imposed by the Constitution.” Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 486 (1983). Federal and state sovereign immunity, by contrast, are

“embedded in the text and structure of the Constitution.” Franchise Tax Bd. of Calif. v. Hyatt, 587 U.S.

230, 248 (2019); see, e.g., United States v. Clarke, 33

U.S. 436, 443 (1834) (Marshall, C.J.) (“[T]he United

States are not suable of common right.”).

2. The panel majority placed too much reliance on

this Court’s previous descriptive statements that the

FSIA is the “sole basis for obtaining jurisdiction over

a foreign state in federal court.” Argentine Republic

v. Amerada Hess Shipping Corp., 488 U.S. 428, 438

(1989); see OBB Personenverkehr AG v. Sachs, 577

U.S. 27, 40 (2015) (quoting Amerada Hess in dicta);

Republic of Austria v. Altmann, 541 U.S. 677, 699

(2004) (calling the FSIA “a comprehensive framework

for resolving any claim of sovereign immunity”). As

this Court said recently about these very statements,

the “general language” of its opinions should not be

read as “referring to quite different circumstances

that the Court was not then considering.” Turkiye

Halk Bankasi A.S. v. United States, 598 U.S. 264, 278

(2023) (holding that the FSIA does not apply in criminal cases).

So too here. None of the above-cited cases had any

“occasion to consider the FSIA’s implications for” Title III of the Helms-Burton Act, or any other statute

with an independent textual basis for abrogating foreign sovereign immunity. Turkiye, 598 U.S. at 278.

Amerada Hess was decided in 1989, before the

Helms-Burton Act was enacted. It addressed whether the Alien Tort Statute, a general jurisdictional

statute enacted in 1789, continued to provide jurisdiction over foreign sovereigns even after the enactment

of the FSIA. The Court held no, explaining that the

more specific, later-in-time FSIA controlled. See 488

U.S. at 438 (explaining that the ATS is broader because it “does not distinguish among classes of defendants”). Applied to this case, that logic cuts

against applying the FSIA to the more specific, laterin-time Title III.

Meanwhile, both Altmann and Sachs were decided

before Title III’s cause of action had ever been permitted to come into effect, and involved “quite different circumstances” from the question presented here,

Turkiye, 598 U.S. at 278. In Altmann, the Court considered whether the FSIA applies in suits that were

pending prior to the Act’s enactment. See 541 U.S. at

697. And in Sachs, the Court considered when a tort

claim for injuries suffered abroad fell within the

FSIA’s commercial-activity exception. See 577 U.S. at

33. Neither had any occasion to opine on the interaction of the FSIA with a statute enacted after 1976.

II. THE

DECISION

BELOW

WARRANTS

IMMEDIATE REVIEW

This Court’s review is warranted because the decision below is inconsistent with this Court’s precedents, eviscerates an important federal statute with

major foreign-policy implications, and directly affects

billions of dollars in claims held by American individuals and businesses. Critically, because the federal

venue statute limits actions against Cuban instrumentalities to the District of Columbia, this petition may

well be the Court’s only opportunity to consider the

question presented.

A. The Question Presented Is Important

Whether Title III claimants may sue Cuban instrumentalities in federal court is a matter of great

political, diplomatic, and financial significance. Congress concluded that the United States has an “obligation to its citizens” to provide a “fully effective

remed[y]” against Cuban instrumentalities. 22 U.S.C.

§ 6081(8), (10)-(11). Such cases are so diplomatically

sensitive that Congress allowed the President to suspend them if “necessary to the national interests of

the United States,” which four different Presidents

did. Id. § 6085(b)(1). President Trump eventually allowed the suspension to lapse, and President Biden

elected not to reinstate it. The decision below directly

undercuts those Executive Branch judgments by

making it harder—and in some cases impossible—for

injured entities with certified claims to bring the actions that Congress authorized. The court below

wrongly inserted itself into an important dialogue between the political branches over foreign affairs.

In sheer dollars, this case matters, too. Title III

plaintiffs may be entitled to many billions in total

compensation if they can get into court as Congress

intended. Nearly 6,000 individuals and businesses

hold over $1.9 billion in certified claims, plus over 60

years of interest and treble damages. See 22 U.S.C.

§ 6082(a)(1). As explained above, the court of appeals’

requirement that Title III plaintiffs proceed through

the FSIA likely closes the courthouse doors to many

claimants who will not be able to satisfy an FSIA exception. See supra, p. 19. And even when an FSIA

exception ultimately applies, establishing that jurisdictional requirement will be a costly and uncertain

exercise. This litigation—already five years old and

now enmeshed in further jurisdictional discovery

about specific service stations and remittanceprocessing offerings—is a perfect example. For other

claimants without the same resources or fortitude, the

game may not be worth the candle. Unjustified costs

and delays thus undermine Congress’s goal of a “fully

effective remed[y]” for Castro’s victims. 22 U.S.C.

§ 6081(8).

The decision below also threatens significant spillover effects. By misinterpreting this Court’s unconsidered dicta in Amerada Hess, the D.C. Circuit required Congress to play by different rules when departing from the FSIA than from other statutes.

That puts an unwarranted thumb on the scale for foreign instrumentalities in future disputes over other

statutes like Title III—even those not yet enacted.

For example, several post-FSIA laws authorize the

U.S. government to bring civil damages actions

against “any person” that violates restrictions on

chemical or nuclear weapons, and define “person” to

include “any instrumentality or political subdivision of

[a foreign] government or nation . . . located in the

United States.” See 22 U.S.C. §§ 8102(11), 8141, 8142

(nuclear); 22 U.S.C. §§ 6701(6), 6726, 6761 (chemical

weapons). Another statute permits civil penalty suits

against “foreign persons” that violate certain drugtrafficking laws, including “any political subdivision,

agency, or instrumentality of a foreign government.”

21 U.S.C. §§ 2302(6), 2313-2314. The D.C. Circuit’s

approach would likely preclude such suits unless an

FSIA exception applies, because these statutes similarly lack a magic-words reference to the FSIA.

B. There Is No Realistic Possibility Of Further

Percolation

The decision below “conflicts with relevant decisions of this Court.” Sup. Ct. R. 10(c). As explained

above, over a series of decisions culminating in Kirtz,

this Court has articulated a simple test for determining when a federal statute clearly abrogates sovereign

immunity: “when [the] statute creates a cause of action and explicitly authorizes suit against a government on that claim.” 601 U.S. at 49 (internal quotation marks omitted). The court below declined to apply that test to foreign sovereigns, adopting an even

more demanding “ultra-clear statement” rule applicable to foreign sovereign immunity alone. App., in-

fra, 48a (Randolph, J., dissenting). Such a “principle

has no support” in this Court’s cases. Ibid.

This case is likely to be the Court’s only real opportunity to correct that error. As a practical matter,

under Section 1391(f) of the federal venue statute, Title III actions against Cuban instrumentalities can be

brought only in the District of Columbia. It is very

unlikely that any of the other venue options set forth

in Section 1391(f) will ever be available in a Title III

case. Absent truly unusual circumstances, there will

be no U.S. district where “a substantial part of the

events or omissions giving rise to the claim occurred”;

where “a substantial part of property that is the subject of the action is situated”; or where the defendant

“instrumentality is licensed to do business or is doing

business.” 28 U.S.C. § 1391(f)(1)-(3). The expropriations and trafficking took place in Cuba; the property

is in Cuba; and Cuban state entities like CIMEX generally cannot “do business” in the United States within the meaning of subsection (f)(3), given the embargo

and other sanctions. Thus, Title III claimants will

virtually always fall back on subsection (f)(4), which

establishes venue in the District Court for the District

of Columbia if the action “is brought against a foreign

state or political subdivision thereof.” Id. § 1391(f)(4).

As a result, there is no reasonable prospect that any

court of appeals other than the D.C. Circuit will have

the chance to opine on the question presented here.

This Court often grants review of issues arising

from the Federal Circuit that divide that court, and

over which that court has exclusive jurisdiction. E.g.,

Harrow v. Department of Def., 601 U.S. 480 (2024);

Rudisil v. McDonough, 601 U.S. 294 (2024). Indeed,

this Court often reviews decisions from that court

even where the panel was unanimous. E.g., Feliciano

v. Department of Transportation, No. 23-861 (argued

Dec. 9, 2024); Amgen v. Sanofi, 598 U.S. 594 (2023);

Arellano v. McDonough, 598 U.S. 1 (2023). Review is

warranted here for similar reasons. The question

presented will realistically not arise outside of the

D.C. Circuit, and the panel sharply divided on it.

That is as close to a split as the question can generate.

C. This Case Is An Excellent Vehicle

This case offers an excellent vehicle for addressing

the interaction of the Helms-Burton Act and the

FSIA. The question presented is a clean issue of

statutory interpretation. It was well ventilated below,

prompting thorough opinions from the panel majority

and dissent. The financial stakes of this case alone

are enormous: after pre-judgment interest and trebling, Exxon seeks nearly a billion dollars in damages.

And there are no other jurisdictional, threshold, or

prudential barriers to this Court’s review. Exxon

filed this action on the first possible day that President Trump allowed Title III to take effect, and the

Cuban defendants appeared to defend it. That is not

always assured in cases involving nations with which

the United States does not have normal diplomatic

relations.

Although the case is on interlocutory appeal, that

is no obstacle. This Court often decides FSIA immunity issues in that posture. See, e.g., Turkiye, 598 U.S.

264; Federal Republic of Germany v. Philipp,

592 U.S. 169 (2021); Bolivarian Republic of Venezuela

v. Helmerich & Payne Int’l Drilling Co., 581 U.S. 170

(2017). And the issues that remain to be decided have

no bearing on the Title III question.

If anything, the ongoing proceedings illustrate the

stakes here. The court of appeals sent the parties into

unnecessary and extensive jurisdictional discovery on

the “direct effect” prong of the FSIA’s commercialactivity exception. For example, the court tasked the

district court with determining whether, on the whole,

“Americans would still send the same amount of money [to Cuba] and Cuban recipients would still withdraw the same amount of money” if CIMEX did not

operate a remittance-processing business at “four to

ten” of its 66 service stations. App., infra, 35a. To

answer that question, the district court apparently

must determine whether there are “Western Union

sites in the immediate vicinity” of those “four to ten”

stations, and what “the conduct of the business at

those stations looks like.” Id. at 36a. None of this effort is relevant to the question presented here, and

Exxon should not be required to suffer even greater

delay and expense—precisely what Title III was designed to avoid. Sixty years is long enough.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

STEVEN K. DAVIDSON

SHANNEN W. COFFIN

MICHAEL J. BARATZ

MICHAEL G. SCAVELLI

STEPTOE LLP

1330 Connecticut Avenue NW

Washington, DC 20036

JEFFREY B. WALL

Counsel of Record

MORGAN L. RATNER

SULLIVAN & CROMWELL LLP

1700 New York Avenue NW

Suite 700

Washington, DC 20006

(202) 956-7660

wallj@sullcrom.com

MAXWELL F. GOTTSCHALL

SULLIVAN & CROMWELL LLP

125 Broad Street

New York, NY 10004

Counsel for Exxon Mobil Corporation

DECEMBER 27, 2024

APPENDIX

TABLE OF CONTENTS

Appendix A — Court of appeals opinion

(July 30, 2024).................................................................1a

Appendix B — District court opinion

(April 20, 2021).............................................................52a

Appendix C — Decision of the U.S. Foreign

Claims Settlement Commission (Sept. 3, 1969)......109a

Appendix D — Statutory provisions:

22 U.S.C. § 6023.........................................................126a

22 U.S.C. § 6081..........................................................132a

22 U.S.C. § 6082.........................................................134a

22 U.S.C. § 6083.........................................................144a

22 U.S.C. § 6085.........................................................146a

28 U.S.C. § 1604..........................................................149a

28 U.S.C. § 1605..........................................................149a

28 U.S.C. § 1610..........................................................158a

28 U.S.C. § 1611..........................................................164a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 21-7127

Consolidated with 22-7019, 22-7020

EXXON MOBIL CORPORATION,

Appellee,

CORPORACION CIMEX, S.A. (CUBA),

Appellant,

CORPORACION CIMEX, S.A. (PANAMA)

AND UNION CUBA-PETROLEO,

Appellees.

Decided July 30, 2024, Argued January 19, 2023

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 2 019, Ex xon sued three state- ow ned

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, 136 S.

Ct. 390, 193 L. Ed. 2d 269 (2015) (quoting Saudi Arabia

v. Nelson, 507 U.S. 349, 355, 113 S. Ct. 1471, 123 L. Ed.

2d 47 (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,

363 U.S. App. D.C. 87 (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. 19cv-1277, 2021 U.S. Dist. LEXIS 253582, 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, 116 S. Ct. 619, 133 L. Ed.

2d 578 (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, 109 S. Ct. 683, 102 L. Ed. 2d 818 (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, 124 S. Ct. 2240, 159 L. Ed.

2d 1 (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, 143 S.

Ct. 940, 215 L. Ed. 2d 242 (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 subjectmatter jurisdiction.” Wye Oak Tech., Inc. v. Republic

of Iraq, 24 F.4th 686, 690, 455 U.S. App. D.C. 373 (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, 448 U.S. App. D.C. 91 (D.C. Cir. 2020).

10a

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

11a

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,

114 S. Ct. 996, 127 L. Ed. 2d 308 (1994) (quoting United

States v. Mitchell, 463 U.S. 206, 218, 103 S. Ct. 2961, 77 L.

Ed. 2d 580 (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

12a

from suit through other statutes” like Title III “without

mentioning jurisdiction or their immunity expressly.” Does

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 FSIAcreated 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.

13a

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, 144 S. Ct. 457, 217 L. Ed. 2d 361

(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, 143 S. Ct. 1176, 215 L. Ed.

2d 321 (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, 123 S.

Ct. 1972, 155 L. Ed. 2d 953 (2003); Kimel v. Fla. Bd. of

Regents, 528 U.S. 62, 73–74, 120 S. Ct. 631, 145 L. Ed. 2d

522 (2000); Seminole Tribe of Fla. v. Florida, 517 U.S. 44,

56–57, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (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

14a

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, 142 S. Ct. 522, 211 L. Ed. 2d 316 (2021); Alden

v. Maine, 527 U.S. 706, 712–13, 119 S. Ct. 2240, 144 L.

Ed. 2d 636 (1999); Shuler v. United States, 531 F.3d 930,

932–33, 382 U.S. App. D.C. 201 (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, 103 S. Ct. 1962, 76 L. Ed. 2d 81 (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. Does 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

15a

and all “suits allowed [by the statute] against governments

would automatically have been dismissed” on sovereignimmunity 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, 138 S. Ct. 816, 200 L. Ed. 2d 58

(2018).

16a

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, 407 U.S. App. D.C. 133 (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 expropr iation 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 ct of expropriating

property, the only FSIA exception potentially in play is

the expropriation exception, such that the commercialactivity exception could not separately supply a basis for

jurisdiction.

17a

Nothing in the FSIA supports that kind of oneand-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, 429 U.S. App. D.C.

342 (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,

18a

905 F.2d 438, 450 n.15, 284 U.S. App. D.C. 333 (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, 141 S. Ct. 703, 208 L. Ed. 2d 589 (2021).

19a

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 Helmerich

& Payne Int’l Drilling Co. at 12–13, Bolivarian Republic

of Venez., 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

20a

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.

Petroleos Mexicanos Mexican Nat’l Oil Co. (Pemex), 15

Iran-U.S. Cl. Trib. Rep. 23 (1987), 767 F.2d 1140, 1987

WL 503885, at *8 n.9. Investorstate 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,

21a

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

Helmerich & Payne Int’l Drilling Co. at 12, Bolivarian

Republic of Venez., 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.

22a

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, 382 U.S. App. D.C. 287 (D.C. Cir. 2008); Abdullah

v. Obama, 753 F.3d 193, 199–200, 410 U.S. App. D.C. 80

(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

23a

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

24a

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, 112 S. Ct. 2160, 119 L. Ed. 2d 394 (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

25a

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

26a

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 financialservices 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 commercialactivity exception would enable an end-run around the

27a

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 commercialactivity 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

28a

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, 371 U.S. App. D.C. 507 (D.C.

Cir. 2006), and Ivanenko v. Yanukovich, 995 F.3d 232,

452 U.S. App. D.C. 76 (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.

29a

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.’”

30a

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

31a

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 nontrivial 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, 247 U.S. App. D.C. 208 (D.C. Cir. 1985). In another

case, the termination of a contract constituted a direct

32a

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, 390 U.S. App. D.C. 130 (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, 359 U.S. App. D.C. 40 (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, 307 U.S. App. D.C. 102

(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).

33a

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, 436 U.S. App. D.C. 397 (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 thirdparty 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

34a

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.

35a

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.

36a

Med. Ctr. v. Nassar, 570 U.S. 338, 346–47, 133 S. Ct. 2517,

186 L. Ed. 2d 503 (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

37a

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

38a

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 inf luence 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.

39a

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,

40a

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, 307 U.S. App. D.C. 79 (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.

41a

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 Banco Nacional de Cuba (1960), Cuba), rev’d, 376

U.S. 398, 84 S. Ct. 923, 11 L. Ed. 2d 804 (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:

42a

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

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.”

43a

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), 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,

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.

44a

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, 136 S. Ct. 390, 193 L. Ed. 2d 269 (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, 109 S. Ct. 683, 102 L.

Ed. 2d 818 (1989). Two, it was not in effect because the

President had suspended its cause of action. Sachs, 577

U.S. at 30; Republic of Austria v. Altmann, 541 U.S. 677,

699, 124 S. Ct. 2240, 159 L. Ed. 2d 1 (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, 143 S. Ct. 940, 215 L. Ed. 2d 242 (2023);

Does 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 U.S. LEXIS

2816, 2024 WL 3089537, at *1 (U.S. June 24, 2024); Wye

Oak Tech., Inc. v. Republic of Iraq, 24 F.4th 686, 690, 455

U.S. App. D.C. 373 (D.C. Cir. 2022); Valambhia v. United

Republic of Tanzania, 964 F.3d 1135, 1139, 448 U.S. App.

D.C. 91 (D.C. Cir. 2020).

45a

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, 94 S. Ct. 1372, 39

L. Ed. 2d 577 (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, 5 L. Ed. 257 (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, 131 S. Ct. 1436, 179 L. Ed. 2d 523 (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

46a

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, 144 S. Ct. 457, 217

L. Ed. 2d 361 (2024); see also Mowrer v. U.S. Dep’t of

Transp., 14 F.4th 723, 729, 454 U.S. App. D.C. 340 (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)

47a

(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

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.

48a

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 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, 94 S. Ct. 2474, 41 L. Ed. 2d

290 (1974); Guidry v. Sheet Metal Workers Nat’l Pension

Fund, 493 U.S. 365, 375, 110 S. Ct. 680, 107 L. Ed. 2d 782

(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)

49a

(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 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). 55

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

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, 141 S. Ct. 703, 208

L. Ed. 2d 589 (2021); Saudi Arabia v. Nelson, 507 U.S. 349, 354,

363, 113 S. Ct. 1471, 123 L. Ed. 2d 47 (1993).

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).

50a

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, 143 S. Ct.

713, 215 L. Ed. 2d 1 (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 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.

51a

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, 103

S. Ct. 1962, 76 L. Ed. 2d 81 (1983); Rubin v. Islamic

Republic of Iran, 583 U.S. 202, 205, 138 S. Ct. 816, 200 L.

Ed. 2d 58 (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, 354 U.S. App. D.C. 216

(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.

52a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Case No. 19-cv-01277 (APM)

EXXON MOBIL CORPORATION,

Plaintiff,

CORPORACIÓN CIMEX, S.A. et al.,

Defendants.

Filed April 20, 2021

MEMORANDUM OPINION AND ORDER

INTRODUCTION

In 1996, Congress enacted the Cuban Liberty and

Democratic Solidarity Act, 22 U.S.C. §§ 6021 et seq., also

known as the LIBERTAD, or Helms-Burton, Act. Title

III of the LIBERTAD Act creates for U.S. nationals a

private right of action against any “person” who traffics

in property expropriated by the government of Cuba

after January 1, 1959, and defines “person” to include

any agency or instrumentality of a foreign state. The Act,

however, contains a unique provision that authorizes the

President to suspend the private right of action. Every

presidential administration since the statute’s passage

had done just that. But then the Trump Administration

announced that it would lift the suspension in May 2019.

That action opened the door for this novel lawsuit.

53a

O ver si xty yea rs ago, Plainti ff Ex xon Mobil

Corporation (“Exxon”) held an interest in various oil and

gas assets located in Cuba that were owned and operated

by its wholly owned subsidiaries. The government of

Cuba expropriated those assets in 1960. Exxon now seeks

compensation under Title III of the LIBERTAD Act from

the Cuban state-owned entities that allegedly traffic

in its confiscated properties: Defendants Corporación

CIMEX S.A. (Cuba) (“CIMEX”), Corporación CIMEX

S.A. (Panama) (“CIMEX (Panama)”), and Unión CubaPetróleo (“CUPET”). Exxon seeks entry of an actual

damages award of over $71 million plus treble damages.

Defendants now move to dismiss Exxon’s complaint,

arguing that this court lacks subject matter jurisdiction

over the dispute. For the reasons that follow, the court

denies Defendants’ motion to dismiss as to CIMEX,

defers ruling as to CUPET and CIMEX (Panama), and

allows limited jurisdictional discovery as to CUPET and

CIMEX (Panama).

II. BACKGROUND

Factual Background

Exxon’s Operations in Cuba

Until 1960, Exxon, then known as Standard Oil, owned

several subsidiaries operating in Cuba. See Second Am.

Compl., ECF No. 33 [hereinafter SAC], ¶¶ 23–24. One

such subsidiary was Esso Standard Oil, S.A. (“Essosa”),

a wholly owned Panamanian corporation that operated in

the Caribbean Basin and had its headquarters in Havana,

Cuba. Id. ¶ 24. Exxon also operated Esso Standard (Cuba)

54a

Inc. and Esso (Cuba) Inc. (the “Exploration Companies”),

which explored for and produced crude oil in Cuba. Id.

In October 1959, following the rise of Fidel Castro, the

Cuban government arrived at the Exploration Companies’

Cuban office and “confiscated and copied all files, maps,

and other records of geological exploration.” See id. ¶ 27.

The Exploration Companies subsequently stopped all

exploration efforts in Cuba and closed their office on the

island. See id.

Some months later, in the summer of 1960, the

Cuban government issued a series of resolutions that

expropriated Essosa’s rights to its Cuban property. Id.

¶ 28. The resolutions prohibited Essosa “from operating

its expanded Belot Refinery,” forced the company to

“abandon its Cuban-based marketing operation,” and

resulted in the closure of Essosa’s gasoline service stations

in the country. Id. ¶ 29. All told, the Cuban government

confiscated Essosa’s Belot Refinery, multiple bulk

products terminals, and more than one hundred service

stations. See id. ¶ 31. According to Exxon, “Cuba has never

paid, and Plaintiff has never received, compensation for

the expropriation of” that property. Id. ¶ 33.

T h e Fo r e i g n C l a i m s S e t t l e m e n t

Commission

In response to Cuban expropriations, Congress in

1964 established a program pursuant to the International

Claims Settlement Act of 1949, 22 U.S.C. §§ 1621 et seq.,

to provide a way for “nationals of the United States” to

submit expropriation claims against Cuba to the U.S.

Foreign Claims Settlement Commission (“FCSC”). See

55a

Pub. L. No. 88-666, 78 Stat. 1110 (1964); Helmerich

& Payne Int’l Drilling Co. v. Bolivarian Republic of

Venezuela (Helmerich III), 743 F. App’x 442, 451 (D.C.

Cir. 2018). The FCSC was tasked with determining “the

amount and validity of claims against the Government of

Cuba . . . which have arisen since January 1, 1959, . . . out

of nationalization, expropriation, intervention, or other

takings of, or special measures directed against, property

of nationals of the United States . . . in order to obtain

information concerning the total amount of such claims

against the Government of Cuba . . . on behalf of nationals

of the United States.” 22 U.S.C. § 1643.

In 1969, Standard Oil, Exxon’s predecessor, submitted

a claim to the FCSC. SAC ¶ 34. The FCSC certified

that Standard Oil “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, a Panamanian

corporation wholly owned by claimant.” SAC, Ex. 1, ECF

No. 33-1 [hereinafter FCSC Claim], at 9. The award also

entitled Standard Oil to interest at a rate of 6% per annum

from July 1, 1960, to the date of settlement. Id. at 10.

Exxon “has never settled the outstanding certified claims

or received any payment from any entity with respect to

the principal or interest due on its certified claim.” SAC

¶ 43.

The LIBERTAD, or Helms-Burton, Act

In 1996, President Clinton signed into law the

LIBERTAD Act, also known as the Helms-Burton Act,

Pub. L. No. 104-114, 110 Stat. 785 (1996) (codified at 22

U.S.C. §§ 6021 et seq.). Title III of the Act creates for U.S.

nationals who owned property in Cuba a private right

56a

of action against any “person” that “traffics in property

which was confiscated by the Cuban Government on or

after January 1, 1959.” 22 U.S.C. § 6082(a)(1)(A). The Act

defines “person” to include “any agency or instrumentality

of a foreign state.” Id. § 6023(11).

A person engaged in trafficking confiscated property

shall be liable to the U.S. national “for money damages.”

Id. § 6082(a)(1)(A). The statute provides multiple ways for

computing money damages, one of which is “the amount

. . . certified to the claimant by the [FCSC], plus interest.”

Id. § 6082(a)(1)(A)(i)(I). A certified claim from the FCSC

creates a rebuttable presumption as to the amount of an

award. Id. § 6082(a)(2). It also entitles the claimant to

receive treble damages from the person trafficking the

confiscated property. Id. §§ 6082(a)(3)(A), (C)(ii).

Title III, however, contains an important condition on

the availability of its private cause of action. No doubt due

to the potential foreign policy implications of such claims,

Congress authorized the President to suspend Title III’s

private right of action for sequential periods of up to six

months upon notification to Congress 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)(2). Since the Act’s passage every administration

has issued a sequential six-month suspension of the right

of action. SAC ¶ 45.

That changed under President Trump. On April 17,

2019, Secretary of State Michael Pompeo announced that

the Trump Administration “would no longer suspend

the right to bring an action under Title III effective

May 2, 2019.” U.S. Dep’t of State, Cuba: Title III FAQs

57a

(LIBERTAD), https://www.state.gov/cuba-title-iii-faqslibertad/ (last visited Mar. 22, 2021). That announcement

opened the door for Exxon to file this action, which it did

on May 2, 2019. See Compl., ECF No. 1.

Defendants’ Alleged Trafficking Activities

Exxon contends that Defendants have “trafficked” in

Essosa’s confiscated property for commercial gain.

CIMEX. According to Exxon, CIMEX “engages in a

variety of foreign commerce across a variety of industries,”

and, as relevant to Exxon’s suit, “operates over 600 service

stations that sell gas and consumer goods across Cuba.”

SAC ¶¶ 105–106. CIMEX, along with CUPET, operates

over 300 such service stations under the name “ServiCupet.” Id. ¶ 106. Exxon explains that Servi-Cupets “are

the functional equivalent of a 7-Eleven convenience store.”

Id. ¶ 109. The stations sell “a variety of American products,

including poultry, cereal, rice, cleaning supplies, frozen

vegetables, and alcoholic beverages.” Id. Some of those

service stations are built and maintained on property that

formerly belonged to Essosa. Id. ¶ 107.

CIMEX also uses its service stations to process

remittances, or money transfers. Id. ¶ 111. When a

remittance is sent to Cuba from the United States, “U.S.

dollars are transferred by persons in the United States

using agent locations in the United States.” Id. ¶ 121.

Recipients can then collect their remittances at CIMEX’s

service stations, among other locations in Cuba, and

some of the service stations that process remittances

are maintained on Essosa’s former property. See id.

¶¶ 115–116.

58a

Exxon alleges that “Cuba received an estimated $3.6

billion U.S. dollars in 2018 from remittances, and it is

estimated that 90% of these remittances come from the

United States.” Id. ¶ 112. Remittances are “the only conduit

for persons residing in the United States to transfer U.S.

dollars to support family and friends in Cuba.” Id. ¶ 122.

Exxon maintains that the remittance business is crucial

to the Cuban economy because it provides U.S. dollars for

the Cuban government and financial system, which are

strained for hard currency. See id. ¶ 121. Cuba channels

remittances through FINCIMEX, which has “a license

to manage all remittance wire transfers from the United

States,” and “CIMEX facilitates remittance transactions

through its partnership with a U.S.-based remittance

provider.” Id. ¶ 113.

CIMEX (Panama). Exxon makes no direct trafficking

allegations against CIMEX (Panama). Instead, it claims

that CIMEX and CIMEX (Panama) “are alter egos of one

another.” Id. ¶ 3. The two entities, according to Exxon,

share “the ultimate same ownership, with the same

officers and directors, [and] work[] out of the same office

at the same address without any regard for corporate

formalities or respecting the separateness of either

entity.” Id.; see also id. ¶ 19.

CUPET. CUPET is Cuba’s state-owned oil company.

Id. ¶ 91. It operates Essosa’s former Belot Refinery, which,

following a merger with another refinery, is now known as

the Ñicó Lopez Refinery, one of four refineries owned by

CUPET. Id. ¶¶ 92–93. One of CUPET’s “main objectives

is to supply the domestic needs for petroleum products,

including gasoline, diesel, and fuel oil.” Id. ¶ 93.

59a

CUPET also allegedly uses Essosa’s confiscated

property—including its former refinery and “plants,

terminals, and infrastructure”—to import and refine

crude oil, as well as to explore for and extract oil. Id.

¶¶ 97–98. In support of these activities, CUPET engages

in business with foreign companies, “allow[ing] CUPET

to import crude oil to supply the domestic needs for

petroleum products and engage in joint oil exploration

projects in Cuba and the Gulf of Mexico.” Id. ¶ 99. CUPET

provides “offshore exploration opportunities for a range of

international companies” and “host[s] annual conferences

seeking foreign partners in oil and gas exploration and

production.” Id. ¶ 101(c).

Apart from CUPET’s commercial activities, Exxon

also contends that CUPET has negligently operated

the Ñicó Lopez Refinery and “cause[d] considerable

environmental damage to the Florida Straits.” Id. ¶ 103.

The Ñicó Lopez Refinery allegedly “dumps hydrocarbons

and industrial waste into Havana Bay,” and polluted water

has run “northeasterly 40–50 miles” from the refinery,

which Exxon contends “bring[s] the pollution at or near

the United States-Cuba maritime boundary.” Id.

B. Procedural Background

On May 2, 2019, Exxon filed its initial Complaint in

this matter. See Compl., ECF No. 1. Thereafter, it filed the

Second Amended Complaint, adding CIMEX (Panama) as

a defendant. See SAC. The Second Amended Complaint

is the operative pleading.

Defendants have moved to dismiss the Second

Amended Complaint for lack of subject matter and

60a

personal jurisdiction. See Defs.’ Mot. to Dismiss Action

with Prejudice, & for Other Relief, ECF No. 42 [hereinafter

Defs.’ Mot.]. As to subject matter jurisdiction, Defendants

assert that: (1) they are agencies or instrumentalities of

a foreign sovereign, Cuba, and thus are immune from

suit pursuant to the Foreign Sovereign Immunities Act

(“FSIA”), and (2) Exxon lacks Article III standing. See

Defs.’ Mot., Defs.’ Mem. of P. & A. in Supp. of Mot. to

Dismiss with Prejudice & for Other Relief, ECF No.

42-3 [hereinafter Defs.’ Br.]. As to personal jurisdiction,

Defendants contend that, as agents or instrumentalities of

a foreign sovereign, they enjoy protection under the Due

Process Clause and lack the requisite minimum contacts

with the United States to be subject to suit here. Id. at

47–60.

The court heard oral argument on March 10, 2021.

See Minute Entry, Mar. 10, 2021. Following the hearing,

the parties agreed to defer their dispute over personal

jurisdiction until after the question of subject matter

jurisdiction is resolved, including possible interlocutory

appellate review. See Stip. & Order, ECF No

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