Exxon Mobil Corporation v. Corporacion Cimex, S.a. (cuba)

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 19, 2023 Decided July 30, 2024
No. 21-7127
EXXON M OBIL CORPORATION,
APPELLEE
v.
CORPORACION CIMEX, S.A. (CUBA),
APPELLANT
CORPORACION CIMEX, S.A. (PANAMA) AND UNION
CUBA-PETROLEO,
APPELLEES
Consolidated with 22-7019, 22-7020
Appeals from the United States District Court
for the District of Columbia
(No. 1:19-cv-01277)
Michael R. Krinsky argued the cause for appellants/cross-
appellees. With him on the briefs were Lindsey Frank and
Nathan Yaffe.

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Steven K. Davidson argued the cause for appellee/cross-
appellant. With him on the briefs were Shannen W. Coffin,
Michael J. Baratz, and Michael G. Scavelli.
Marco B. Simons, Richard L. Herz, and Michelle C.
Harrison were on the brief for amicus curiae EarthRights
International in support of appellee/cross-appellant.
Before: S RINIVASAN , 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

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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.
I.
A.
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

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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.
B.
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

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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.

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C.
In May 2019, Exxon sued three state-owned defendants:
(i) Corporación CIMEX S.A. (Cuba), a conglomerate, whom
we will refer to as CIMEX; (ii) Corporación CIMEX S.A.
(Panama), whom Exxon alleges is the alter ego of CIMEX; and
(iii) Unión Cuba-Petróleo (CUPET), Cuba’s state-owned oil
company. Exxon alleges that the defendants traffic in
confiscated property by extracting, importing, and refining
crude oil, operating service stations, and engaging in
commercial activity involving the confiscated property. See
Second Am. Compl. ¶¶ 127–35, J.A. 47–48. Exxon seeks a
damages award equaling the amount certified by the
Commission, as well as pre-judgment interest and treble
damages. Id. ¶ 137, J.A. 48.
The defendants moved to dismiss Exxon’s complaint for
lack of jurisdiction based on foreign sovereign immunity. The
parties agree that all three defendants are wholly owned by
Cuba, rendering them agencies or instrumentalities of a foreign
state. As such, the defendants are “presumptively immune
from the jurisdiction of United States courts” under the Foreign
Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et seq.,
unless one of the FSIA’s exceptions applies. See OBB
Personenverkehr AG v. Sachs, 577 U.S. 27, 30–31 (2015)
(quoting Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993)).
At issue here are two FSIA exceptions: the expropriation
exception and the commercial-activity exception. See 28
U.S.C. § 1605(a)(2), (a)(3).
The district court denied the motion to dismiss as to
CIMEX, but deferred ruling and allowed limited jurisdictional
discovery as to the other two defendants. Exxon Mobil Corp.
v. Corporación CIMEX S.A., 534 F. Supp. 3d 1, 7 (D.D.C.
2021). The court began by rejecting Exxon’s argument that,

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regardless of the FSIA, Title III independently confers
jurisdiction over the defendants. Id. at 11. The court then
examined the relevant FSIA exceptions, concluding that the
commercial-activity exception is satisfied with respect to
CIMEX but that the expropriation exception is unsatisfied with
respect to any defendant. Id. at 15–22, 26–29. The court later
denied the defendants’ motion for reconsideration. Exxon
Mobil Corp. v. Corporación CIMEX S.A., 567 F. Supp. 3d 21
(D.D.C. 2021).
All three defendants now appeal the district court’s denial
of CIMEX’s motion to dismiss for lack of jurisdiction. Exxon
cross-appeals the district court’s holdings that the FSIA’s
expropriation exception is unsatisfied and that Title III does not
independently confer jurisdiction.
II.
While we generally lack jurisdiction to review the denial
of a motion to dismiss because such an order is interlocutory,
we have jurisdiction when the dismissal was sought on grounds
of sovereign immunity (including foreign sovereign
immunity). See Kilburn v. Socialist People’s Libyan Arab
Jamahiriya, 376 F.3d 1123, 1126 (D.C. Cir. 2004). We thus
possess jurisdiction over CIMEX’s appeal from the denial of
its motion for dismissal. As for the other two defendants, the
district court certified their appeals for interlocutory review as
a discretionary matter under 28 U.S.C. § 1292(b), see Exxon
Mobil Corp. v. Corporación CIMEX S.A., No. 19-cv-1277,
2021 WL 6805533 (D.D.C. Nov. 23, 2021), and we agree that
the statutory standards for interlocutory appeal are satisfied.
And when a district court certifies an order for interlocutory
appeal under that statute, we can decide “any issue fairly
included within the certified order,” Yamaha Motor Corp.,

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U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996), which here
includes the issues raised by Exxon in its cross-appeal.
We thus proceed to examine: (i) Exxon’s argument that,
regardless of the applicability of any FSIA exception, Title III
independently establishes jurisdiction over foreign sovereign
entities like the defendants; (ii) Exxon’s contention that the
FSIA’s expropriation exception applies in this case; and (iii)
the defendants’ submission that the FSIA’s commercial-
activity exception does not apply.
A.
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

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‘provides the sole basis for obtaining jurisdiction over a foreign
state in the courts of this country.’” Sachs, 577 U.S. at 30
(emphasis added) (quoting Argentine Republic v. Amerada
Hess Shipping Corp., 488 U.S. 428, 443 (1989)). Said
otherwise, “Congress established [in the FSIA] a
comprehensive framework for resolving any claim of [foreign]
sovereign immunity.” Republic of Austria v. Altmann, 541
U.S. 677, 699 (2004) (emphasis added). Accordingly, when
the Supreme Court recently held that the FSIA does not pertain
to criminal cases against foreign sovereigns, the Court
reiterated “the ‘comprehensiveness’ of the statutory scheme as
to civil matters” like this case. Turkiye Halk Bankasi A.S. v.
United States, 598 U.S. 264, 278 (2023) (quoting Amerada
Hess, 488 U.S. at 437).
In short, “[t]hrough the FSIA, Congress enacted a
comprehensive scheme governing claims of immunity in civil
actions against foreign states and their instrumentalities.” Id.
at 272–73. Consistent with that understanding, our court has
described the “FSIA exceptions [as] exhaustive; if none applies
to the circumstances presented in a case, the foreign state has
immunity and the court lacks subject-matter jurisdiction.” Wye
Oak Tech., Inc. v. Republic of Iraq, 24 F.4th 686, 690 (D.C.
Cir. 2022); see also Simon v. Republic of Hungary, 77 F.4th
1077, 1090 (D.C. Cir. 2023) (“Absent a pre-existing agreement
with the United States affecting the scope of sovereign
immunity, a foreign sovereign is generally immune, unless one
of the FSIA’s enumerated exceptions applies.”); Valambhia v.
United Republic of Tanzania, 964 F.3d 1135, 1139 (D.C. Cir.
2020).
Exxon nonetheless contends that the FSIA does not set out
the exclusive mechanism for securing jurisdiction over civil
suits against foreign sovereigns, and that courts have
jurisdiction in Title III actions against foreign sovereigns

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without regard to the FSIA. In support of that proposition,
Exxon observes that Title III creates liability for “any person
that . . . traffics in property which was confiscated by the
Cuban Government,” 22 U.S.C. § 6082(a)(1)(A), and defines a
“person” as “any person or entity, including any agency or
instrumentality of a foreign state,” id. § 6023(11) (emphasis
added).
It is true that Title III thereby contemplates that its cause
of action can encompass suits against a foreign state (and its
agencies or instrumentalities). But Title III nowhere says that
any Title III action against a foreign state automatically lies
within a district court’s jurisdiction. Rather, Title III
harmoniously coexists with the FSIA if it allows for actions
against foreign sovereign entities who traffic in expropriated
property in those circumstances in which the FSIA allows for
jurisdiction over the foreign sovereign—i.e., when an FSIA
exception applies.
After all, Title III speaks in terms of establishing
“liability” for persons (potentially including foreign states)
who “traffic[] in property which was confiscated by the Cuban
Government,” id. § 6082(a)(1)(A), without saying anything
about the existence of jurisdiction over a foreign sovereign.
The FSIA, by contrast, specifically addresses when a “foreign
state [is] immune from . . . jurisdiction.” 28 U.S.C. § 1604.
And “whether there has been a waiver of sovereign immunity”
and “whether the source of substantive law upon which the
claimant relies provides an avenue of relief” are “two
‘analytically distinct’ inquiries.” FDIC v. Meyer, 510 U.S.
471, 483–84 (1994) (quoting United States v. Mitchell, 463
U.S. 206, 218 (1983)). So, while Title III “provides an avenue
of relief” against persons (potentially including foreign states)
who traffic in property expropriated by Cuba, that does not tell
us “whether there has been a waiver of sovereign immunity”

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enabling the exercise of jurisdiction over a foreign sovereign
sued under Title III. See id.
Congress, moreover, was well aware of the FSIA when it
enacted Title III, so much so that it expressly referenced and
incorporated FSIA definitions, see 22 U.S.C. § 6023(1), (3),
and FSIA procedures for service of process, see id.
§ 6082(c)(2). Conversely, when Congress sought to render
FSIA provisions inapplicable to actions under Title III,
Congress specifically said so, as it did with respect to the
FSIA’s delineation of the scope of immunity from attachment
or execution. See Cuban Liberty and Democratic Solidarity
(LIBERTAD) Act of 1996, Pub. L. No. 104–114, § 302(e), 110
Stat. 785, 818 (codified at 28 U.S.C. § 1611(c)). Title III
contains no such language referencing—much less departing
from—the FSIA’s prescription that “a foreign state shall be
immune from the jurisdiction of the courts . . . except as
provided in” the FSIA’s enumerated exceptions. 28 U.S.C.
§ 1604. The absence of any such language in Title III is
significant: “Given the FSIA’s comprehensive and explicit
regulation of jurisdiction over foreign sovereigns, we cannot
assume that Congress abrogated these sovereigns’ immunity
from suit through other statutes” like Title III “without
mentioning jurisdiction or their immunity expressly.” Doe v.
Taliban, 101 F.4th 1, 10 (D.C. Cir. 2024). Indeed, even if Title
III were ambiguous on whether it abrogates foreign sovereign
immunity, “any statutory ambiguity concerning a waiver of
foreign immunity outside the FSIA must be resolved in favor
of its preservation.” Id. at 12.
Our dissenting colleague suggests that if Congress
understood the FSIA to apply to Title III, it would not have
needed to specify the applicability of various FSIA provisions
in Title III actions. Dissenting Op. 9. As alluded to above,
however, when enacting Title III, Congress amended the FSIA

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to provide that, “[n]otwithstanding” the FSIA’s exceptions to a
foreign sovereign’s immunity from attachment and execution,
in Title III actions “the property of a foreign state shall be
immune from attachment and from execution” in certain
conditions. 28 U.S.C. § 1611(c) (citing 28 U.S.C. § 1610).
Congress would expressly provide that an FSIA exception to
FSIA-created immunity is inapplicable in Title III actions only
if Congress understood foreign states to enjoy FSIA immunity
in Title III actions in the first place. True, that provision
specifically concerns FSIA execution immunity (as opposed to
FSIA jurisdictional immunity) in Title III cases. See
Dissenting Op. 9. But if Congress in fact wanted Title III
plaintiffs to secure judgments against foreign states without
needing to surmount FSIA jurisdictional immunity—as our
dissenting colleague supposes—then it is hard to see why
Congress still forced those same plaintiffs to overcome FSIA
execution immunity to collect on those same judgments.
Nor are we persuaded by our colleague’s reliance on the
Supreme Court’s decision in Department of Agriculture Rural
Development Rural Housing Service v. Kirtz, 601 U.S. 42
(2024), in support of the proposition that Title III’s conferral of
liability on foreign governments also effected an abrogation of
their otherwise-applicable jurisdictional immunity under the
FSIA. See Dissenting Op. 5–7. Kirtz held that the Fair Credit
Reporting Act (FCRA) waived the federal government’s
(domestic) sovereign immunity because the “‘statute creates a
cause of action’ and explicitly ‘authorizes suit against a
government on that claim.’” 601 U.S. at 49 (quoting Fin.
Oversight & Mgmt. Bd. for P.R. v. Centro De Periodismo
Investigativo, Inc. (FOMB), 598 U.S. 339, 347 (2023)). In
reaching that conclusion, the Court adopted the approach it has
long taken when considering the sovereign immunity of
domestic states. See, e.g., Nev. Dep’t of Hum. Res. v. Hibbs,
538 U.S. 721, 726 (2003); Kimel v. Fla. Bd. of Regents, 528

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U.S. 62, 73–74 (2000); Seminole Tribe of Fla. v. Florida, 517
U.S. 44, 56–57 (1996).
Our colleague observes that, like the FCRA, Title III also
imposes liability on any “person” and defines “person” to
include a government agency or similar entity. See Kirtz, 601
U.S. at 51; compare 22 U.S.C. § 6023(11) (“any agency or
instrumentality of a foreign state”), with 15 U.S.C. § 1681a(b)
(“any . . . governmental subdivision or agency, or other
entity”). But we believe it is mistaken to rely on that similarity
alone to conclude that Title III likewise both confers a cause of
action against foreign states and abrogates their sovereign
immunity.
To begin with, Kirtz and the line of cases preceding it
concerned either federal or state sovereign immunity, which
derive from different sources than does foreign sovereign
immunity. Whereas federal and state sovereign immunity stem
from the common law and the Constitution, respectively, see
Whole Woman’s Health v. Jackson, 595 U.S. 30, 39 (2021);
Alden v. Maine, 527 U.S. 706, 712–13 (1999); Shuler v. United
States, 531 F.3d 930, 932–33 (D.C. Cir. 2008), foreign
sovereign immunity is “a matter of grace and comity” extended
to foreign states by our political branches, Verlinden B.V. v.
Cent. Bank of Nigeria, 461 U.S. 480, 486–88 (1983); Altmann,
541 U.S. at 689, 696. So a host of “sensitive diplomatic and
national-security judgments . . . pervade waivers of foreign
sovereign immunity,” bolstering the need to respect Congress’s
balancing of those considerations in the provisions of the FSIA.
Doe v. Taliban, 101 F.4th at 12. Those sorts of foreign-
relations concerns do not arise in cases involving federal or
state sovereign immunity.
Additionally, when the Supreme Court has held that
Congress waived or abrogated immunity in cases involving

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federal or state sovereign immunity, it was not just because the
statute created a cause of action and authorized suit against a
government (as Title III also does). Instead, the Court deemed
immunity waived or abrogated because “recognizing immunity
would have negated” the conferral of a cause of action against
governments entirely, as any and all “suits allowed [by the
statute] against governments would automatically have been
dismissed” on sovereign-immunity grounds. FOMB, 598 U.S.
at 348; see Kirtz, 601 U.S. at 49–51. In other words, unless the
statute creating the cause of action were construed to waive
sovereign immunity, the conferral of a cause of action against
the government would have been completely pointless. That is
not the case here. Our holding that Title III does not
independently abrogate FSIA immunity does not entirely
“negate” the Title III cause of action against foreign
governments: Title III suits against those governments can
proceed if an FSIA exception applies.
The upshot is that plaintiffs bringing Title III actions
against foreign states must satisfy one of the FSIA’s
exceptions, which is the same condition any litigant seeking to
sue a foreign sovereign must meet. That approach, contrary to
Exxon’s submission, does not undermine Title III’s purposes.
It poses no obstacle to Title III suits against non-sovereign
parties who traffic in confiscated property. And with respect
to Title III actions against foreign sovereigns, insofar as
Congress intended for such suits to go forward only when the
FSIA allows for jurisdiction, as we believe to be the case, our
reading of course furthers—rather than frustrates—Congress’s
intentions. That conclusion respects Congress’s decision to
craft the FSIA as a “careful balance between respecting the
immunity historically afforded to foreign sovereigns and
holding them accountable, in certain circumstances, for their
actions.” See Rubin v. Islamic Republic of Iran, 583 U.S. 202,
208–09 (2018).

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B.
Because Exxon’s Title III action is subject to the FSIA’s
“baseline principle of immunity for foreign states and their
instrumentalities,” the action must fit within one of the FSIA’s
“exceptions to that principle.” Turkiye Halk Bankasi, 598 U.S.
at 272. Exxon “bears the initial burden to overcome” the
FSIA’s “presumption of immunity . . . by producing evidence
that an exception applies.” Bell Helicopter Textron, Inc. v.
Islamic Republic of Iran, 734 F.3d 1175, 1183 (D.C. Cir.
2013). The defendants then “bear[] the ultimate burden of
persuasion to show the exception does not apply.” Id.
Exxon submits that its suit satisfies two FSIA exceptions:
the expropriation exception and the commercial-activity
exception. We agree with the district court that the
expropriation exception is inapplicable. With respect to the
commercial-activity exception, while the district court
considered that exception to apply, we remand for further
assessment of whether CIMEX’s use of expropriated property
causes the requisite direct effect in the United States.
Before turning to an examination of each of the two
exceptions relied on by Exxon, we pause briefly to consider a
threshold theory advanced by the defendants: that because this
case arises out of Cuba’s act of expropriating property, the only
FSIA exception potentially in play is the expropriation
exception, such that the commercial-activity exception could
not separately supply a basis for jurisdiction.
Nothing in the FSIA supports that kind of one-and-only-
one-exception approach. The FSIA sets out a list of exceptions
enumerating various circumstances in which a “foreign state
shall not be immune from the jurisdiction of courts,” and those

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exceptions are framed as alternatives, separated by the word
“or.” See 28 U.S.C. § 1605(a). The most natural reading is
that, if any of those exceptions applies in a given case,
immunity is overcome. There is no textual (or other) indication
that a court must first somehow determine which exception is
the sole one possibly in play in any given case, and then should
limit itself to examining whether that—and only that—
exception applies. Indeed, it is unclear how a court would
evaluate which of two (or more) exceptions is most germane
without proceeding to assess whether each exception’s
requirements are satisfied—the very inquiry the defendants
suggest should not happen.
Our court accordingly has “never held that in order to
proceed against a foreign government, a claim must fall into
just one FSIA exception.” De Csepel v. Republic of Hungary,
859 F.3d 1094, 1103 (D.C. Cir. 2017). In fact, with specific
regard to the expropriation and commercial-activity
exceptions, we have explained that they involve “altogether
different questions.” Id. We thus rejected the idea that an
activity must fall under “either the expropriation exception or
the commercial activity exception, but not both.” Id. As long
as “a proper showing is made,” a plaintiff can rely on the
commercial-activity exception even if a case may involve “the
taking of property”—i.e., an expropriation. Foremost-
McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 450
n.15 (D.C. Cir. 1990) (internal quotation marks omitted).
1.
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

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of the foreign state and that agency or instrumentality is
engaged in a commercial activity in the United States.” 28
U.S.C. § 1605(a)(3). “Generally speaking, the exception has
two requirements: (1) the claim must put in issue ‘rights in
property taken in violation of international law,’ and (2) there
must be an adequate connection between the defendant and
both the expropriated property and some form of commercial
activity in the United States.” Simon, 77 F.4th at 1091 (quoting
28 U.S.C. § 1605(a)(3)).
The first of those requirements is dispositive here. In
determining whether a claim involves rights in property that are
recognized by and taken in violation of international law,
courts look to the “customary international law of
expropriation” (if the plaintiff “do[es] not rely on an express
international agreement”). Id. at 1097. Such a plaintiff thus
“must show that [its] legal theory ‘has in fact crystallized into
an international norm that bears the heft of customary law.’”
Id. (quoting Helmerich & Payne Int’l Drilling Co. v. Bolivarian
Republic of Venezuela, 743 F. App’x 442, 449 (D.C. Cir.
2018)); see Fed. Republic of Germany v. Philipp, 592 U.S. 169,
180–81 (2021).
We agree with the district court that Exxon has failed to
allege any “rights in property taken in violation of international
law.” 28 U.S.C. § 1605(a)(3). Exxon does not contend that it
directly owned any of the property seized by Cuba. The seized
property instead was owned by Exxon’s subsidiary, Essosa.
Exxon’s asserted property right, then, is its interest, as a
shareholder and parent of Essosa, in Essosa’s property. And
under the international law of expropriation, “not every state
action that has a detrimental impact on a shareholder’s interests
amounts to an indirect expropriation of the shareholder’s
ownership rights.” Helmerich, 743 F. App’x at 454. Because
a “shareholder’s direct rights generally are not implicated by

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state action that depreciates the value of a corporation’s shares,
even severely,” shareholders typically cannot establish a
violation of their rights on the basis of such state action unless
the action is aimed at the direct rights of the shareholders
themselves. See id. (quoting Br. for the United States as
Amicus Curiae at 12–13, Helmerich, 743 F. App’x 442 (No.
13-7169)).
Decisions by the International Court of Justice confirm
that international law generally does not recognize a
shareholder’s right in property owned by the corporation. As
that court has explained, there is “a firm distinction between
the separate entity of the company and that of the shareholder,”
and “[s]o long as the company is in existence[,] the shareholder
has no right to the corporate assets.” The Barcelona Traction,
Light & Power Co. (Belgium v. Spain), Judgment, 1970 I.C.J.
3, 35, ¶ 41 (Feb. 5). That understanding governs even in the
case of a shareholder who is the sole owner of the subsidiary.
See Ahmadou Sadio Diallo (Republic of Guinea v. Democratic
Republic of the Congo), Judgment, 2010 I.C.J. 640, 688, ¶ 151,
689–90, ¶¶ 155–56 (Nov. 30).
Exxon insists that other sources of international law
recognize its shareholder interest in Essosa’s assets as a
property right. The scattered authorities Exxon cites, however,
are secondary to the judgments of the International Court of
Justice, which are “accorded great weight” in understanding
the content of international law. See Restatement (Third) of the
Foreign Relations Law of the United States § 103 cmt. b (Am.
L. Inst. 1987) (Third Restatement). At any rate, even on their
own terms, the sources Exxon cites do not support its position.
Two of the sources—decisions by the Iran-United States
Claims Tribunal and investor-state arbitration decisions—tell
us little about the customary international law of expropriation.

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The Tribunal’s decisions involve “specific, bargained-for
agreements” subject to governing law distinct from customary
international law. See Helmerich, 743 F. App’x at 452 (citing
Third Restatement § 102(2)). One Tribunal decision, for
example, explains that the State Department had specifically
bargained with Iran for a broader definition of property that
extended to interests in property. See SEDCO, Inc. v. Nat’l
Iranian Oil Co. & Islamic Republic of Iran, 15 Iran-U.S. Cl.
Trib. Rep. 23 (1987), 1987 WL 503885, at *8 n.9. Investor-
state arbitration decisions likewise involve negotiated Bilateral
Investment Treaties whose terms do not necessarily reflect the
parameters of customary international law. See, e.g., Total S.A.
v. The Argentine Republic, ICSID Case No. ARB/04/01,
Decision on Objections to Jurisdiction, ¶ 78 (Aug. 25, 2006)
(distinguishing bilateral investment treaties from customary
international law). Exxon’s reliance on a third source—the
Commission’s certification of Exxon’s claim—falls short for
similar reasons: Congress authorized the Commission to
certify losses due to the expropriation of “property including
any rights or interests therein owned wholly or partially,
directly or indirectly,” see 22 U.S.C. § 1643b(a), a definition
of property that sweeps substantially broader than the one
recognized by our decision in Helmerich and by the
International Court of Justice’s decisions.
To be sure, there is an exception to the general rule under
customary international law that shareholders lack a property
right in the assets of entities in which they hold ownership
interests. As we recognized in Helmerich, if a state’s action
“‘is aimed at the direct rights of the shareholder as such,’ it can
form the basis for an international expropriation claim.” 743
F. App’x at 454 (quoting Barcelona Traction, 1970 I.C.J. at 36,
¶ 47). That can occur if the state action “completely destroy[s]
the beneficial and productive value of the shareholder’s
ownership of their company,” “leaving the shareholder with

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shares that have been rendered useless.” Id. (quoting Supp. Br.
for the United States as Amicus Curiae at 12, Helmerich, 743
F. App’x 442 (No. 13-7169)). In Helmerich, for example, we
concluded that a parent company had adequately alleged that a
foreign sovereign had taken its rights in property in violation
of international law because the takings, while aimed at the
subsidiary, had destroyed the entire value of the parent
company’s shares. Id. at 455.
That exception is inapplicable here. Unlike in Helmerich,
the district court here found undisputed evidence that Essosa
has continued its operations. The defendants produced
documents demonstrating that Essosa continued to hold annual
shareholder meetings and Board of Directors meetings,
operated fuel stations as of 2011, and began operating under a
different name in 2012 that is listed as in good standing with
the Public Registry of Panama. See Frank Decl. ¶¶ 2–19, J.A.
323–33. Exxon has not alleged any clear error in the district
court’s factual findings, and there is no evidence that Exxon’s
shares in Essosa were “rendered useless,” Helmerich, 743 F.
App’x at 454, by Cuba’s expropriation of Essosa’s property.
And while Exxon contends in its reply brief in our court that
Cuba in fact destroyed the entire value of Essosa’s operations,
we have no occasion to consider that argument: Exxon
forfeited the argument twice over by failing to raise it in the
district court or in our court in its opening brief. See Bryant v.
Gates, 532 F.3d 888, 898 (D.C. Cir. 2008); Abdullah v. Obama,
753 F.3d 193, 199–200 (D.C. Cir. 2014).
Finally, our dissenting colleague suggests that the
foregoing analysis is misplaced because the U.S. Foreign
Claims Settlement Commission long ago effectively settled
that Exxon itself has a legally cognizable interest in the
expropriated property. See Dissenting Op. 8. Title III requires
that if the Commission certifies “a claim to ownership of [an]

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interest” in property, courts “shall accept” that certification “as
conclusive proof of ownership of [that] interest.” 22 U.S.C.
§ 6083(a)(1). And because the Commission determined that
Cuba unlawfully took Exxon’s property rights, our colleague
reasons, we are bound to treat Exxon’s ownership of those
property rights as conclusive of Exxon’s property interests. We
do not see things the same way.
It is true that the statute establishing the Commission
charged it with determining “the amount and validity of
claims” “in accordance with applicable substantive law,
including international law.” 22 U.S.C. § 1643b(a). But the
statute also directs the Commission to determine claims “for
losses resulting from the . . . expropriation [of] . . . property
including any rights or interests therein owned wholly or
partially, directly or indirectly at the time by nationals of the
United States.” Id. (emphasis added). As the district court
observed, the Commission thus evaluated property interests
much broader than those recognized under customary
international law. See Exxon, 534 F. Supp. 3d at 29. And there
is no evidence that the Commission purported to evaluate
property claims based on customary international law. The
Commission’s certification, then, cannot resolve whether the
expropriation exception applies.
In sum, because Exxon does not assert a right recognized
by the international law of property, it cannot satisfy the
expropriation exception. Exxon submits that Cuba not only
expropriated property but intentionally discriminated against
U.S. nationals in doing so, thereby ostensibly running afoul of
international law’s prohibition on discriminatory takings. But
even if that were so, Exxon still could not meet the
expropriation exception’s requirements: a successful claim of
a discriminatory taking of property requires both
discrimination and a taking of property in violation of

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international law. The latter is absent here for the reasons
explained.
2.
The commercial-activity exception—the “most significant
of the FSIA’s exceptions”—strips sovereign immunity on the
basis of a foreign sovereign’s commercial activities. See
Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 611
(1992); 28 U.S.C. § 1605(a)(2). The exception abrogates
immunity in any case
in which the action is based upon a commercial
activity carried on in the United States by the
foreign state; or upon an act performed in the
United States in connection with a commercial
activity of the foreign state elsewhere; or upon
an act outside the territory of the United States
in connection with a commercial activity of the
foreign state elsewhere and that act causes a
direct effect in the United States.
28 U.S.C. § 1605(a)(2). At issue here is the third clause, which
withdraws immunity when a suit is “(1) ‘based . . . upon an act
outside the territory of the United States’; (2) that was taken ‘in
connection with a commercial activity’ of [the defendant]
outside this country; and (3) that ‘cause[d] a direct effect in the
United States.’” Weltover, 504 U.S. at 611 (first and third
alterations in original) (quoting id.).
There is no dispute that Exxon’s suit fulfills the first
requirement, as CIMEX’s alleged trafficking occurs in Cuba.
The parties dispute whether Exxon’s suit satisfies the second
and third requirements—namely, whether CIMEX’s actions
are taken in connection with a commercial activity and whether

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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.
a.
In applying the commercial-activity exception, “[w]e
begin our analysis by identifying the particular conduct on
which the [plaintiff’s] action is ‘based’ for purposes of the
Act.” Nelson, 507 U.S. at 356. We look to “the ‘basis’ or
‘foundation’ for a claim,” or the “gravamen of the complaint,”
which generally accounts for “those elements . . . that, if
proven, would entitle a plaintiff to relief.” Sachs, 577 U.S. at
33–34 (alteration in original) (quoting Nelson, 507 U.S. at
357).
The relevant clause of the commercial-activity exception
requires that the gravamen of the complaint bear a connection
to “commercial activity,” which the FSIA defines as “a regular
course of commercial conduct or a particular commercial
transaction or act.” 28 U.S.C. § 1603(d). The statute further
instructs that the “commercial character of an activity shall be
determined by reference to the nature of the course of conduct
or particular transaction or act, rather than by reference to its
purpose.” Id.; see also Weltover, 504 U.S. at 614. While the
statute’s definition “leaves the critical term ‘commercial’
largely undefined,” the following principle guides our inquiry:
“when a foreign government acts, not as regulator of a market,
but in the manner of a private player within it, the foreign
sovereign’s actions are ‘commercial’ within the meaning of the
FSIA.” Weltover, 504 U.S. at 612, 614. In Weltover, for

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example, the Supreme Court concluded that because sovereign
bonds are “garden-variety debt instruments” that could “be
held by private parties,” could “be traded on the international
market,” and “promise[d] a future stream of cash income,”
Argentina’s issuance of those bonds constituted commercial
activity under the FSIA. Id. at 615.
The gravamen of Exxon’s suit is plainly connected to
commercial activity. Exxon alleges that CIMEX processes
remittances (transfers of money) sent by U.S. residents to Cuba
and that it operates service stations that sell gas and consumer
goods. Running retail and financial-services operations is not
uniquely sovereign activity, as any private actor can also
engage in those functions. In performing those activities, then,
the Cuban government acts not as a “regulator of a market,”
but rather “in the manner of a private player.” See id. at 614.
The defendants resist that conclusion by contending that
the gravamen of Exxon’s suit is the original expropriation and
possession of the confiscated property rather than the
subsequent commercial activity of processing remittances and
selling goods. According to the defendants, allowing later
commercial use of confiscated property to meet the FSIA’s
commercial-activity exception would enable an end-run
around the expropriation exception by permitting plaintiffs to
shoehorn suits about sovereign expropriations into the
commercial-activity exception.
The fact that Cuba’s antecedent expropriation and the
defendants’ possession of Exxon’s property may have enabled
the challenged commercial activity, however, does not
diminish the applicability of the commercial-activity
exception. The Supreme Court has repeatedly distinguished
enabling conduct preceding a claim from activity forming the
basis of the claim.

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25
Nelson, for instance, involved tort claims for injuries a
person sustained from a foreign sovereign’s imprisonment and
torture of him. 507 U.S. at 353–54. He alleged that the
defendants had retaliated against him for reporting safety
violations at a state-owned hospital where he worked. Id. at
362. The Court explained that, even if the defendants had
engaged in commercial activity when they “recruited [the
plaintiff] for work at the hospital, signed an employment
contract with him, and subsequently employed him,” it was the
subsequent “torts, and not the arguably commercial activities
that preceded their commission,” that “form[ed] the basis” of
the suit. Id. at 358.
Similarly, in Sachs, a person bought a European rail pass
while in the United States and later suffered injuries when
attempting to board a train using that pass in Austria. 577 U.S.
at 29. The Court assessed whether, for purposes of the
commercial-activity exception, the claim was “based upon a
commercial activity carried on in the United States by [a]
foreign state.” Id. (alteration in original) (quoting 28 U.S.C.
§ 1605(a)(2)). In rejecting the plaintiff’s argument that the
rail’s sale of the pass to her in the United States satisfied the
exception, the Court again separated the antecedent
commercial activity from the subsequent, allegedly injurious
activity, concluding that the gravamen of the suit occurred in
Austria, not the United States. Id. at 35–36.
As those decisions instruct, the inquiry turns on the
specific conduct forming the basis of the plaintiff’s action. So
here, even if Cuba’s original expropriation and the defendants’
current possession were in some sense necessary to enable the
subsequent trafficking, the gravamen of Exxon’s action under
Title III—the trafficking—is commercial activity. A court
must “zero[] in on the core of [the plaintiff’s] suit,” that is, the

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“acts that actually injured” the plaintiff. Id. at 35. Here, then,
we focus on the core of the suit brought by Exxon: the
commercial use of confiscated property, which Congress has
deemed actionable under Title III.
Our decisions in Rong v. Liaoning Province Government,
452 F.3d 883 (D.C. Cir. 2006), and Ivanenko v. Yanukovich,
995 F.3d 232 (D.C. Cir. 2021), lend no support to the
defendants. While both decisions held that the plaintiffs’ suits
did not satisfy the commercial-activity exception’s
requirements, the core of the suit in those cases, unlike here,
was an antecedent act of expropriation, not subsequent
commercial activity. See Rong, 452 F.3d at 887; Ivanenko, 995
F.3d at 239. The defendants’ reliance on various decisions
from foreign tribunals fails for similar reasons: the claims in
those cases focused on the wrongful expropriation of property
rather than the unlawful commercial use of the property.
The defendants relatedly submit that the alleged
trafficking is inseparable from Cuba’s exercise of sovereign
authority to nationalize property, publicly control industry, and
establish a socialist economy, ostensibly rendering the
trafficking non-commercial in nature. The terms of the FSIA,
though, prescribe that the “commercial character of an activity
shall be determined by reference to the nature of the course of
conduct or particular transaction or act, rather than by reference
to its purpose.” 28 U.S.C. § 1603(d). It is therefore irrelevant
whether “the foreign government is acting . . . with the aim of
fulfilling uniquely sovereign objectives”; “[r]ather, the issue is
whether the particular actions that the foreign state performs
(whatever the motive behind them) are the type of actions by
which a private party engages in trade and traffic or
commerce.” Weltover, 504 U.S. at 614 (internal quotation
marks omitted); see also Nelson, 507 U.S. at 360 (“[W]hether
a state acts ‘in the manner of’ a private party is a question of

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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).
b.
To fit within the commercial-activity exception, CIMEX’s
trafficking activity not only must bear a “connection with a
commercial activity” in Cuba but must also “cause[] a direct
effect in the United States.” 28 U.S.C. § 1605(a)(2). “[A]n
effect is ‘direct’ if it follows ‘as an immediate consequence of
the defendant’s . . . activity.’” Weltover, 504 U.S. at 618
(second alteration in original) (citation omitted). Although
“jurisdiction may not be predicated on purely trivial effects in
the United States,” there is no “unexpressed requirement of
‘substantiality’ or ‘foreseeability.’” Id.
The district court concluded that CIMEX causes a direct
effect in the United States in two ways: first, by operating a
remittances business that enables transfers of money from the
United States to recipients in Cuba; and second, by selling
goods imported from the United States at its convenience
stores. We agree with Exxon and the district court that the
types of effects Exxon alleges—outflows of money from the
United States and purchases of U.S. goods—can constitute
direct effects in the United States. Still, we vacate and remand
for the district court to further assess whether CIMEX “causes”
those effects and whether the effects are sufficiently “direct.”
i.
We first consider CIMEX’s remittances business. A
remittance is initiated when a U.S. resident designates a

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recipient in Cuba and makes a payment to Western Union.
Valmaña Decl. ¶ 13(a)–(b), J.A. 195. The recipient in Cuba
can then collect the remittance at any of 502 Western Union
locations in the country. Id. ¶¶ 12, 13(d)–(e), J.A. 194, 196.
Exxon estimates that Cuba received $3.6 billion in remittances
in 2018, and that 90% of those remittances came from the
United States. Second Am. Compl. ¶ 112, J.A. 43. CIMEX
operates service stations that process remittance payments
from the United States through Western Union, and of the 502
Western Union locations in Cuba, 276 are operated by CIMEX
and 66 are specifically located at CIMEX’s service stations.
Valmaña Decl. ¶ 12, J.A. 194.
Exxon contends that CIMEX’s remittances business
causes a direct effect in the United States by creating a market
for remittances and drawing money from the United States to
Cuba. We agree that causing a non-trivial outflow of money
from the United States to Cuba would amount to a “direct
effect” under the FSIA. In Weltover, the Supreme Court
concluded that Argentina’s unilateral rescheduling of certain
bond payments caused a “direct effect” in the United States.
504 U.S. at 618–19. The bondholders had “designated their
accounts in New York as the place of payment” and Argentina
had already “made some interest payments into those accounts
before announcing that it was rescheduling the payments.” Id.
at 619. The Court held that Argentina’s “rescheduling of those
obligations necessarily had a ‘direct effect’ in the United
States” because “[m]oney that was supposed to have been
delivered to a New York bank for deposit was not
forthcoming.” Id. Weltover indicates that a change in the flow
of money in the United States constitutes a direct effect.
Our court has similarly found the existence of a direct
effect when a defendant alters the flow of money within, out
of, or into the United States. In one case, we found a direct

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effect in the United States when “an American corporation
transferr[ed] $28,000 from a New York bank to the Somali
government’s D.C. bank.” Transamerican S.S. Corp. v. Somali
Democratic Republic, 767 F.2d 998, 1004 (D.C. Cir. 1985). In
another case, the termination of a contract constituted a direct
effect because “revenues that would otherwise have been
generated in the United States were ‘not forthcoming.’” Cruise
Connections Charter Mgmt. 1, LP v. Att’y Gen. of Canada, 600
F.3d 661, 665 (D.C. Cir. 2010) (quoting Weltover, 504 U.S. at
619); see also I.T. Consultants, Inc. v. Republic of Pakistan,
351 F.3d 1184, 1188–90 (D.C. Cir. 2003) (finding direct effect
when defendants failed to make promised payment into
Virginia bank account). Here, Exxon claims that money that
otherwise would have remained in the United States was
transferred to Cuba in the form of remittances. Evidence that
CIMEX caused such transfers would demonstrate a direct
effect in the United States.
The defendants argue that the effect is indirect because it
rests on the intervening decisions of multiple third parties:
people in the United States must decide to send remittances to
Cuba through Western Union, and the intended recipients in
Cuba must decide to receive the remittances at stations
operated by CIMEX. We have explained that a direct effect is
one that “has no intervening element, but, rather, flows in a
straight line without deviation or interruption.” Princz v. Fed.
Republic of Germany, 26 F.3d 1166, 1172 (D.C. Cir. 1994)
(citation and internal quotation marks omitted). And in the
defendants’ view, the integral role of third-party transferors
and recipients means the effect of CIMEX’s remittances
business in the United States is not “an immediate consequence
of the defendant’s . . . activity.” Weltover, 504 U.S. at 618
(alteration in original) (citation and internal quotation marks
omitted).

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When the involvement of third parties is an entirely
foreseeable (and even intended) consequence of the
defendants’ relevant actions, however, it will not stand in the
way of concluding that the defendants’ activity causes a direct
effect in the United States. In EIG Energy Fund XIV, L.P. v.
Petroleo Brasileiro, S.A., 894 F.3d 339, 342–43 (D.C. Cir.
2018), a Brazilian state-owned oil company secured funding
for an oil exploration project from various U.S. investors
including EIG Management Company, LLC. After an
extensive bribery scheme came to light, “skittish lenders
withdrew their support,” rendering EIG’s shares in the project
worthless. Id. at 343. EIG brought fraud-related claims against
the state-owned oil company and other defendants, asserting
direct effects based on the concealment of fraud and
mismanagement of its money. Id. at 343, 345. We held that
the suit satisfied the commercial-activity exception, rejecting
the defendants’ argument that it was the third-party lenders’
decisions to withdraw their support, rather than the defendants’
fraud, that caused the direct effect in the United States. Id. at
346. We refused to adopt a “highly restrictive causation
requirement under which contributing factors readily and
predictably caused by the defendant’s same act would preclude
jurisdiction.” Id. (emphasis added).
As in EIG, third parties’ decisions to send and receive
remittances originating from the United States are “readily and
predictably caused by” CIMEX’s operation of a remittances
business. An entity that operates a remittances business knows
full well—and indeed, intends—that people in one location
will use the service to send money to recipients in another
location. And just as in EIG, CIMEX appears to have
“specifically targeted” parties in the United States. See id. at
342. In part due to U.S. regulations, the only remittances
“currently being paid out in Cuba” via Western Union are
remittances that originated in the United States. See Valmaña

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Decl. ¶ 14, J.A. 199. As such, “CIMEX’s entire remittance
business is aimed at bringing money from the United States
into Cuba.” Exxon, 534 F. Supp. 3d at 20. For the same
reasons, the presence of FINCIMEX, a third-party agent who
acts as an intermediary between CIMEX and Western Union,
does not preclude finding that CIMEX caused direct effects in
the United States: FINCIMEX and CIMEX contract with each
other for the very purpose of carrying out a remittances
business. See Valmaña Decl. ¶ 6, J.A. 193.
Contrary to the defendants’ suggestion, the relevant acts
can cause a direct effect in the United States regardless of
whether the “locus of the tort” or a “legally significant act”
occurred in the United States. A “foreign locus does not always
mean that a tort causes no ‘direct effect’ in the United States.”
EIG, 894 F.3d at 347. Nor must the alleged direct effect cause
an injury or a harm, as “[n]othing in the FSIA requires that the
‘direct effect in the United States’ harm the plaintiff.” Cruise
Connections, 600 F.3d at 666 (quoting 28 U.S.C. § 1605(a)(2)).
And although the defendants note that we have often found
direct effects when the parties had been engaged in commercial
dealings, a preexisting relationship of that kind is not a
prerequisite to finding a direct effect.
The defendants, though, do raise one point that precludes
us from deciding at this stage that CIMEX’s processing of
remittances causes a direct effect in the United States in the
form of outflows of money from the United States to Cuba.
The defendants have provided evidence that, of the 66 stations
CIMEX uses to process remittances, a maximum of four to ten
stations sit on confiscated property formerly owned by Essosa.
Valmaña Decl. ¶ 12, J.A. 195. Because Title III makes the
defendants liable only for trafficking in confiscated property,
the pertinent inquiry is whether CIMEX’s remittances
operations at the four to ten stations located on former Essosa

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property cause a direct effect in the United States—not whether
CIMEX’s entire remittances business does so.
For example, it is possible that precisely the same amount
of remittances would be sent from the United States to Cuba
even if those four to ten stations did not exist. There is no
evidence in the record about any of those individual stations,
where they are located, or how much they process in
remittances. Given that there are 502 Western Union locations
in Cuba, it is possible that, even without the four to ten stations
on former Essosa property, Americans would still send the
same amount of money and Cuban recipients would still
withdraw the same amount of money from other readily
accessible stations. If that were the case, one would be hard
pressed to conclude that CIMEX’s operation of a remittances
business at those stations “causes a direct effect in the United
States.” 28 U.S.C. § 1605(a)(2). The effect would be the same
regardless of those stations. Cf. Univ. of Tex. S.W. Med. Ctr. v.
Nassar, 570 U.S. 338, 346–47 (2013) (noting that an action
cannot be a but-for “cause of an event if the particular event
would have occurred without” the action (citation omitted)).
Exxon maintains that the limited number of stations is
irrelevant because the amount of remittances those stations
likely process exceeds the threshold of triviality under
Weltover. But whether an effect is too trivial to count as a
direct effect under the FSIA is a distinct question from whether
a defendant’s activity can be said to cause that effect, trivial or
not. If, as things currently stand, there are readily available
substitutes for the processing of remittances at those four to ten
stations—for instance, other Western Union sites in the
immediate vicinity—the conduct of the business at those
stations may not ultimately cause any outflow of money from
the United States that would not already occur. Without any
examination of that issue, we cannot say whether CIMEX’s

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conduct of a remittances business on confiscated property in
fact “causes a direct effect in the United States.” 28 U.S.C.
§ 1605(a)(2).
We vacate and remand for the district court to assess
whether CIMEX’s conduct of a remittances business at the four
to ten stations operated on former Essosa property, as opposed
to CIMEX’s remittances activity writ large, causes a direct
effect in the United States. We do not suggest that courts
invariably must splinter jurisdictional inquiries under the FSIA
and conduct them parcel-by-parcel. But here, the relevant
inquiry concerns only the four to ten stations on former Essosa
property because Title III makes it unlawful to traffic in
confiscated property, limiting the relevant jurisdictional
inquiry to those sites. Our decision should not be understood
to express any prediction in either direction on whether
CIMEX’s remittances business at the four to ten stations causes
a direct effect in the United States. Because the district court
has not examined that question, we remand for it to conduct the
inquiry and reach a conclusion in the first instance.
ii.
In addition to CIMEX’s remittances business, Exxon
submits that CIMEX’s sale of imported U.S. goods at its
stations satisfies the commercial-activity exception.
According to Exxon, CIMEX’s sale of those goods causes a
direct effect in the United States by stimulating demand for
U.S. goods and by moving capital into and goods out of the
United States.
We agree with Exxon that an inflow of capital and an
outflow of goods constitutes a direct effect in the United States.
The defendants respond, however, that the way in which
CIMEX obtains imported goods from the U.S. precludes

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concluding that CIMEX caused the effect in the United States.
Specifically, rather than directly importing goods from the
United States, CIMEX orders products through another Cuban
company, Alimport, which exercises sole discretion in
determining the source location of the goods it sends on to
CIMEX. In the defendants’ view, Alimport’s role as a third-
party intermediary presents an “intervening element” that
prevents any effect in the United States from “flow[ing] in a
straight line without deviation or interruption” from CIMEX’s
sales. Princz, 26 F.3d at 1172 (citation and internal quotation
marks omitted).
Alimport is the exclusive importer in Cuba of foodstuffs
from the United States, meaning that all U.S. goods on
CIMEX’s shelves are procured through Alimport. See Second
Valmaña Decl. ¶ 6, J.A. 2039–40. Alimport appears to make
entirely independent decisions about the source country of the
goods it imports. The defendants represent that CIMEX “does
not give any direction to Alimport about the country from
where the products should be sourced, the companies from
which the products should be purchased, or the brands of a
product,” and Alimport “decides all this on its own” and
“not . . . as an agent of CIMEX (Cuba).” Id., J.A. 2040. A
report submitted into the record indicates that Alimport “has
wide discretion to choose the foreign companies and countries
from which to make food purchases.” U.S. Int’l Trade
Comm’n, U.S. Agricultural Sales to Cuba: Certain Economic
Effects of U.S. Restrictions at 1-5 (2007), J.A. 1604.
Considerations that influence Alimport’s buying decisions
include economic factors, such as “the availability of bartering
and credit financing,” “[p]urchase price, transportation cost,
quality, and delivery considerations,” along with non-
economic factors such as “political motivations.” Id. at 2-13,
J.A. 1620. The report even suggests that Alimport may decline
to source from the United States altogether if U.S. “laws or

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35
regulations” make it “unavailable” as a supplier. See id. That
suggestion indicates that Alimport’s decision to import goods
for CIMEX from the United States is not a foregone
conclusion.
To be sure, CIMEX and Alimport agree on the specific
types and amounts of products that Alimport will procure for
CIMEX. See Exxon, 534 F. Supp. 3d at 21 (citing Second
Valmaña Decl. ¶ 6, J.A. 2040). But the record indicates that
CIMEX never specifies that Alimport must buy goods from the
United States, meaning Alimport’s decision to purchase U.S.
goods is unrelated to any direction from CIMEX. The
defendants’ declaration states that CIMEX does not specify
even the “brands of a product” when placing an order through
Alimport. Second Valmaña Decl. ¶ 6, J.A. 2040. On that
understanding, Alimport is the key player causing a “direct
effect in the United States,” 28 U.S.C. § 1605(a)(2), and the
purchase of U.S. goods at CIMEX stations is not an “immediate
consequence of” CIMEX’s “activity.” See Weltover, 504 U.S.
at 618 (citation omitted). Insofar as the sale of U.S. goods by
CIMEX occurs only because Alimport opts to purchase the
products from the United States without input or
encouragement from CIMEX, CIMEX would not cause the
direct effect in the United States.
CIMEX, however, might still be said to cause a direct
effect in the United States if it has sufficient and continuing
awareness that the goods it receives from Alimport originate
from the United States—in other words, if CIMEX knows it is
all but ordering U.S. goods when it places an order with
Alimport. Such knowledge would suggest that, by ordering
goods through Alimport, CIMEX causes a “direct effect” by
inducing the purchase of what it knows and anticipates would
be U.S. goods, even if CIMEX does not specifically request the
country of origin. The subsequent inflow of money, outflow of

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36
goods, and stimulation of demand in the United States would
then be fairly characterized an “immediate consequence” of
CIMEX’s decisions to continue procuring goods through
Alimport and to sell those goods on confiscated property. See
id.; cf. Goodman Holdings v. Rafidain Bank, 26 F.3d 1143,
1147 (D.C. Cir. 1994) (Wald, J., concurring) (suggesting that a
failure to make a payment could have a direct effect in the
United States if there were a “longstanding consistent
customary practice” of payments using New York bank
accounts). For example, if Alimport supplies CIMEX with
U.S. goods year after year, and if CIMEX knows and
continuously approves of that pattern, CIMEX would be unable
to insulate itself from the jurisdiction of our courts by invoking
Alimport’s role as an intermediary.
On remand, the district court may find evidence that
CIMEX has sufficient awareness that the goods it sells at its
stations originate from the United States such that Alimport’s
role as a third party does not preclude finding direct effects
caused by CIMEX. The district court did not engage in that
kind of analysis, though, and we again leave it to that court to
conduct the inquiry in the first instance.
* * * * *
For the foregoing reasons, we vacate the district court’s
denial of CIMEX’s motion to dismiss and remand for further
proceedings consistent with this opinion.
So ordered.

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RANDOLPH, Senior Circuit Judge, dissenting:
In February 1996, the Cuban military shot down two small
civilian planes on a humanitarian mission off the coast of Cuba.
Three U.S. citizens and one permanent U.S. resident from Cuba
were killed. Outraged, Congress passed and President Clinton
signed into law the Cuban Liberty and Democratic Solidarity
(LIBERTAD) Act of 1996. Pub. L. No. 104-114, 110 Stat. 785
(codified at 22 U.S.C. §§ 6021 et seq.).
Passage of this legislation established a specific,
independent, and exclusive cause of action for American
nationals whose property the Cuban government had confiscated
decades earlier. The liability of those trafficking in such
property does not depend on the Foreign Sovereign Immunities
Act, 28 U.S.C. §§ 1602 et seq. The majority holds otherwise. I
therefore dissent.
In 1960 the Cuban government, then under Fidel Castro,
issued an edict nationalizing all “property and enterprises . . .
owned by the juridical persons who are nationals of the United
States.” See Banco Nacional de Cuba v. Sabbatino, 307 F.2d
845, 849 (2d Cir. 1962) (quoting Exec. Power Resol. No. 1
(1960), Cuba), rev’d, 376 U.S. 398 (1964); see also 22 U.S.C.
§ 6081(3). At the time U.S. nationals “either owned or held
significant investments in Cuba’s electric company, its telephone
system, a wide variety of mining operations, the petroleum
sector, hotels, sugar and other agricultural products,” and more.
David Kaye, The Helms-Burton Act: Title III and International
Claims, 20 HASTINGS INT’L & COMP. L. REV. 729, 730 (1997).
Four years later, in 1964, Congress responded with the
Cuban Claims Act, authorizing the U.S. Foreign Claims
Settlement Commission to determine the amount and validity of
“claims by nationals of the United States against the Government
of Cuba . . . for losses resulting from the nationalization,
expropriation, intervention, or other taking of . . . property . . .

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2
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,” that Exxon (then called Standard Oil) had1
suffered a loss of $71,611,002.90 resulting from Cuba’s
confiscation of all property in Cuba held by Exxon’s wholly-
owned subsidiary. See Standard Oil Co., F.C.S.C. Decision No.
CU-0938, Claim No. CU-3838, at 9 (Sept. 3, 1969). The
Commission certified Exxon’s claim in that amount, plus annual
interest of 6 percent beginning on July 1, 1960, “to the date of
settlement.” Id. at 10.
But in the decades after Castro’s seizure of property, U.S.
claimants like Exxon had no effective means of obtaining
compensation. Title III of the LIBERTAD Act in 1996 filled
that gap. Title III created a cause of action; required courts to
accept the Commission’s certification of a claim as “conclusive
proof of ownership of an interest in property”; and provided
federal courts with a jurisdictional basis for such actions by
stripping Cuban instrumentalities of sovereign immunity. 22
U.S.C. §§ 6082, 6083(a)(1).
Title III’s civil remedy is against those who “traffic[]” in the
confiscated property. 22 U.S.C. § 6082(a)(1)(A). Its purpose
was not only “to provide protection against wrongful
confiscations” of the property of U.S. nationals, id. § 6081(10),
22 U.S.C. § 1643b(a). See also 22 U.S.C. § 1623(a)(2)(B),1
which requires the Commission to apply the “applicable principles of
international law, justice, and equity.”

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3
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. Exxon filed its lawsuit on the same day.2
The question raised in this appeal is framed as whether there
is subject-matter jurisdiction over Exxon’s suit. The majority
holds that the Foreign Sovereign Immunities Act (FSIA)—not
Title III—provides the answer. As a result, unless Exxon
satisfies one of the exceptions to foreign sovereign immunity in
the FSIA, the defendants, as instrumentalities of Cuba, are
“immune from the jurisdiction” of federal and state courts. 28
U.S.C. § 1604.
That mistaken conclusion rests in large measure on Supreme
Court opinions stating, in one way or another, that the FSIA is
“the sole basis for obtaining jurisdiction over a foreign state in
the courts of this country.” Majority Op. at 8–9 (quoting OBB
Personenverkehr AG v. Sachs, 577 U.S. 27, 30 (2015))
(emphasis omitted). It is true that the Supreme Court and this
court have repeatedly referred to the exclusive nature of the
FSIA. But in each case Title III did not apply for at least one of
three reasons. One, it did not exist at the time. Argentine
Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443
(1989). Two, it was not in effect because the President had
suspended its cause of action. Sachs, 577 U.S. at 30; Republic
Title III authorizes the President to suspend its provisions for 2
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.

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4
of Austria v. Altmann, 541 U.S. 677, 699 (2004). Or three, the
plaintiffs’ claims did not arise out of or relate to Cuba’s
confiscations. Turkiye Halk Bankasi A.S. v. United States, 598
U.S. 264, 278 (2023); Doe v. Taliban, 101 F.4th 1, 10 (D.C. Cir.
2024); Simon v. Republic of Hungary, 77 F.4th 1077, 1090 (D.C.
Cir. 2023), cert. granted, No. 23-867, __ S. Ct. ___, 2024 WL
3089537, at *1 (U.S. June 24, 2024); Wye Oak Tech., Inc. v.
Republic of Iraq, 24 F.4th 686, 690 (D.C. Cir. 2022); Valambhia
v. United Republic of Tanzania, 964 F.3d 1135, 1139 (D.C. Cir.
2020).
Not one of these opinions mentions Title III. When
“questions of jurisdiction” are “passed on in prior decisions sub
silentio,” a later court is not “bound when a subsequent case
finally brings the jurisdictional issue before [it].” Hagans v.
Lavine, 415 U.S. 528, 535 n.5 (1974). And in one of the leading
cases the majority invokes, the Supreme Court stated what
should be obvious—that “general language” in its opinions
should not be applied to “quite different circumstances that the
Court was not then considering.” Turkiye Halk Bankasi A.S.,
598 U.S. at 278 (citation omitted); see also Cohens v. Virginia,
19 U.S. (6 Wheat.) 264, 399 (1821) (Marshall, C.J.) (“If [general
expressions] go beyond the case, they may be respected, but
ought not to control the judgment in a subsequent suit when the
very point is presented for decision.”). Thus, decisions dealing
only with jurisdiction under the FSIA without considering Title
III cannot possibly control the issue posed in this case. See, e.g.,
Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 144
(2011).
As to that issue and contrary to the majority’s view, Title III
is an exclusive and independent remedy in no wise dependent
upon the FSIA.

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5
Title III, considered alone, deprives the Cuban defendants of
immunity from suit. Here are the words: “any person that . . .
traffics in property which was confiscated by the Cuban
government on or after January 1, 1959, shall be liable to any
United States national who owns the claim to such property for
money damages.” 22 U.S.C. § 6082(a)(1)(A). “[P]erson” is
defined to include “any agency or instrumentality of a foreign
state.” Id. § 6023(11).
The Supreme Court has held that nearly identical statutory
language waives the sovereign immunity of the U.S.
government. Dep’t of Agric. Rural Dev. Rural Hous. Serv. v.
Kirtz, 601 U.S. 42, 50 (2024); see also Mowrer v. U.S. Dep’t of
Transp., 14 F.4th 723, 729 (D.C. Cir. 2021) (same). In Kirtz, the
Court interpreted the Fair Credit Reporting Act (FCRA), a
consumer protection statute. 601 U.S. at 45. Two provisions
were relevant to its analysis. Id. at 50–51. First, the FCRA
imposes civil liability on “[a]ny person” who willfully or
negligently fails to comply with the statute’s provisions. 15
U.S.C. §§ 1681n(a), 1681o(a). Second, the FCRA defines
“person” to “mean[],” among other things, “any . . . government
or governmental subdivision or agency.” Id. § 1681a(b). With
those two provisions, the Court held, “Congress has explicitly
permitted consumer claims for damages against the
government.” 601 U.S. at 51. Dismissing such actions on
immunity grounds would “effectively negate suits Congress has
clearly authorized.” Id. (internal quotation marks and alteration
omitted).
Title III establishes that “any person,” including “any
agency or instrumentality of a foreign state,” that traffics in
expropriated property confiscated by the Cuban Government
“shall be liable” to U.S. nationals with claims to that property.
22 U.S.C. §§ 6023(11), 6082(a)(1)(A) (emphasis added).
Compare that language with the FCRA’s: “Any person,”

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6
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. The Supreme Court has ruled that legislation3
of the 1996 Congress—which enacted both the FCRA’s cause of
action and Title III—“explicitly” abrogated the sovereign
immunity of the United States. See Kirtz, 601 U.S. at 46–47, 51.
And yet, according to the majority opinion, the same Congress
in the same Session using the same language did not bring about
the same result with respect to Cuban agencies. See Majority
Op. at 13–14. Put aside for the moment the obvious
disconnect—that Cuban agencies enjoy more protection from
The majority characterizes Title III as exposing all “foreign 3
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.

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7
lawsuits than agencies of the United States, which would be a
shock. Rather, consider the legal principle underlying the
majority’s analysis—unheard of until now—that Congress must
make an ultra-clear statement to abrogate foreign sovereign
immunity. That principle has no support. Like statutes are to be
treated alike. Title III thus functions as both a cause of action
and an abrogation of immunity. Cf. 22 U.S.C. § 6082(d)
(specifically discussing the enforceability of Title III judgments
against Cuban instrumentalities).
Title III is also specific in comparison to the FSIA. The
majority decides that if Title III is inconsistent with the FSIA,
the FSIA controls. Majority Op. at 8–14. That has it upside-
down. The time-honored canon of statutory construction is that
when two statutes are at odds, the specific prevails over the
general. See, e.g., Morton v. Mancari, 417 U.S. 535, 550–51
(1974); Guidry v. Sheet Metal Workers Nat’l Pension Fund, 493
U.S. 365, 375 (1990); Antonin Scalia & Bryan A. Garner,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS 183–88
(2012).
Title III is specific, the FSIA is general. Title III applies
only to Cuba’s confiscations of property. The FSIA applies to all
nations. Compare 22 U.S.C. § 6082(a)(1)(A), with 28 U.S.C.
§§ 1330, 1604(a), 1605(a). Under Title III only U.S. nationals
may bring an action. Under the FSIA anyone may sue,4
including aliens. Compare 22 U.S.C. § 6082, with 28 U.S.C.
§§ 1330, 1605. Title III only authorizes actions in which the
A U.S. national “that brings an action under” Title III “may not 4
bring any other civil action” dealing with “the same subject matter”
under “Federal law.” 22 U.S.C. § 6082(f)(1)(A). FSIA suits are
necessarily “under” federal law. See, e.g., Federal Republic of
Germany v. Philipp, 592 U.S. 169, 185–86 (2021); Saudi Arabia v.
Nelson, 507 U.S. 349, 354, 363 (1993).

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8
amount in controversy exceeds $50,000, while FSIA claims have
no minimum. Compare 22 U.S.C. § 6082(b), with 28 U.S.C.
§ 1330(a).5
There is yet another stark conflict between Title III and the
majority’s application of the expropriation exception in the
FSIA. The majority concludes that the FSIA’s expropriation
exception does not apply because, under international law, the
property Cuba confiscated was owned not by Exxon but by its
subsidiary. Majority Op. at 16–22. But in Title III actions, “the
court shall accept” claims certified by the Foreign Claims
Settlement Commission “as conclusive proof” of violated
property rights. 22 U.S.C. § 6083(a)(1).
This is an action under Title III. See J.A. 18–20, 47–48.
The Commission, which considered international law,
determined that Cuba illegally took Exxon’s rights in property
worth more than $71 million. The statute instructs the courts to
treat Exxon’s ownership of an interest in that property as
“conclusive.” 22 U.S.C. § 6083(a)(1) (emphasis added). Yet in
defiance of that statutory mandate, the majority completely
disregards the Commission’s certification.
The majority also disregards the congressional findings and
statements of purpose in the LIBERTAD Act. Such legislative
pronouncements are important in determining a statute’s
meaning and scope. See, e.g., Bittner v. United States, 598 U.S.
85, 98 n.6 (2023); Scalia & Garner, supra, at 35, 217–20. In the
Act, Congress not only condemned Cuba’s confiscations, 22
U.S.C. § 6081(2)–(3); see also id. § 6021, but also declared that
the Act’s purpose was “to protect United States nationals against
Title III suits are brought under 28 U.S.C. § 1331 (federal 5
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).

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9
confiscatory takings and the wrongful trafficking in property
confiscated by the Castro regime.” Id. § 6022(6); see also id.
§ 6022(3). “To deter” that trafficking, Congress concluded that
“United States nationals who were the victims of these
confiscations should be endowed with a judicial remedy.” Id.
§ 6081(11). Yet “[t]he international judicial system, as currently
structured lacks fully effective remedies for the wrongful
confiscation of property and for unjust enrichment . . . at the
expense of the rightful owners of the property.” Id. § 6081(8).
The FSIA was part of that system. Congress expressly
determined that Cuba’s wrongful takings required a remedy
beyond what was then available. See 22 U.S.C. § 6081(2). That
remedy is Title III, unencumbered by the FSIA.
One thing more. As the majority points out, some FSIA
provisions do apply to Title III actions. Majority Op. at 11–12
(citing 22 U.S.C. §§ 6023(1), (3), 6082(c)(2) and 28 U.S.C. §
1611(c)). But they have no effect on the outcome of this case.
For example, Title III incorporates the FSIA’s procedures for
service of process. 22 U.S.C. § 6082(c)(2). There would be no
need for such a provision if Congress understood the FSIA to
apply to Title III in toto. For another example, the LIBERTAD
Act amended the FSIA (28 U.S.C. § 1611(c)) to provide that
Cuban “diplomatic” “property” will not be subject to attachment
and execution. The amendment dealt only with what property
may satisfy a judgment in a Title III action. Threshold immunity
for a defendant is a quite different matter. See, e.g., Verlinden
B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493–94 (1983);
Rubin v. Islamic Republic of Iran, 583 U.S. 202, 205 (2018).
The amendment to the FSIA’s execution provision therefore has
nothing to do with Title III’s separate provisions depriving
Cuban instrumentalities of a sovereign immunity defense.
Nor is it compelling that Congress could have stated more
clearly that jurisdiction under Title III does not depend on the

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10
FSIA. Contra Majority Op. at 11. Just because “Congress
knows how to say thus and so” does not mean it necessarily
“would have written thus and so if that is what it really
intended.” Doris Day Animal League v. Veneman, 315 F.3d 297,
299 (D.C. Cir. 2003). Congress “almost always” could write a
provision more clearly. Id.
Because Title III abrogates the defendants’ sovereign
immunity, I would not decide whether the Foreign Sovereign
Immunities Act does so as well.

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