Africa Growth Corporation v. Republic of Angola ( 2023 )

USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 1 of 36
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11136
____________________
AFRICA GROWTH CORPORATION,
Plaintiff-Appellant,
versus
REPUBLIC OF ANGOLA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-21995-KMW
____________________
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 2 of 36
2 Opinion of the Court 21-11136
Before WILSON and ROSENBAUM, Circuit Judges, and COVINGTON,∗
District Judge.
PER CURIAM:
Between 2016 and 2017, an Angolan Army general conspired
with Angolan officials to steal tens of millions of dollars of prop-
erty from Plaintiff-Appellant Africa Growth Corp (“AFGC”). 1 Af-
ter AFGC failed to recover its property using the Angolan legal sys-
tem, it began a global lobbying campaign against Angola. And it
sued Angola in the District of Columbia.
While that lawsuit was ongoing, the parties met in Lisbon to
discuss settling. At the meeting, Angola agreed to pay $47.5 million
dollars in exchange for AFGC’s release of its claims against Angola
and AFGC’s promise to stop lobbying against Angola. When An-
gola didn’t pay, AFGC sued again, this time in the Southern District
of Florida.
The parties dispute whether Angola has foreign sovereign
immunity. The answer turns on what the “gravamen” of the action
is. Under the Foreign Sovereign Immunities Act, if the “gravamen”
of the action is Angola’s expropriation of AFGC’s property, then
∗ Honorable Virginia M. Covington, United States District Judge for the Mid-
dle District of Florida, sitting by designation.
1 We accept AFGC’s well-pleaded facts as true for purposes of reviewing the
district court’s order granting Angola’s motion to dismiss. Am. Dental Ass’n v.
Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010). The actual facts may or may
not be as stated.
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 3 of 36
21-11136 Opinion of the Court 3
Angola has immunity. But if the “gravamen” of the action is the
breach of the settlement agreement—and if the breach of the set-
tlement agreement is commercial, not sovereign, in nature—then
the Foreign Sovereign Immunities Act’s exception for commercial
activity applies and Angola isn’t immune from suit.
So to resolve this appeal, we must determine what the gra-
vamen of the action is. While the case law nationwide is in some
tension with itself, ultimately our precedent provides the answer.
If a sovereign expropriates property and then breaches a contract
to provide compensation for the taking, the gravamen of the ac-
tion—what injured the plaintiff—is the taking, not the breach of
the contract.
After a thorough review of the record, and with the benefit
of oral argument, we conclude that Angola’s taking of AFGC’s
property was what injured AFGC here. For that reason, we affirm.
I. BACKGROUND
In 2015, AFGC, a Nevada corporation, bought four real-es-
tate and commercial properties—through subsidiaries—in the An-
golan capital, Luanda. The next year, the Angolan government
used “fraudulent documents, abuse of power, forgery, intimida-
tion[,] and force of arms” to take control of the subsidiary compa-
nies and thereby, the properties. Although AFGC obtained Ango-
lan court orders in its favor, the Angolan government “actively re-
fused to enforce [the] orders.”
So AFGC mounted a two-pronged attack. On the public-
relations side, AFGC began a “global lobbying effort” against
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 4 of 36
4 Opinion of the Court 21-11136
Angola. Meanwhile, on the legal side, AFGC sued Angola, in the
District of Columbia, for expropriation. Afr. Growth Corp. v. Republic
of Angl., 2019 WL 3253367 (D.D.C. July 19, 2019).
While the D.C. case was pending, AFGC offered to meet
with Angolan President João Lourenço to settle the dispute. Dr.
Eduarda Rodrigues Neto—Angola’s Deputy Attorney General—
responded that President Lourenço had directed her to meet with
AFGC instead.
The next month, the parties met in Lisbon. Dr. Rodrigues
Neto represented “that she was the specially authorized representa-
tive for the Office of the Angolan Attorney General and was attend-
ing the settlement meeting at the express direction of President
Lourenço.” The parties reached an agreement that Angola would
pay AFGC $47.5 million in exchange for AFGC relinquishing all
rights and claims to the properties and—upon payment in full—a
promise that AFGC would dismiss its D.C. lawsuit and end its lob-
bying efforts against Angola. The parties agreed to meet the next
week to sign a written settlement agreement. Dr. Rodrigues Neto
added that “the sole reason for creating the subsequent writing for
signature was to accommodate certain formalities required by the
National Bank of Angola for the payment of funds outside An-
gola.”
But the parties never reconvened. And when AFGC advised
Dr. Rodrigues Neto that it expected Angola to uphold its end of the
bargain, she denied agreeing to anything, explaining that she had
“clearly stated” that she had no power to bind the Angolan state.
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 5 of 36
21-11136 Opinion of the Court 5
When Angola failed to pay AFGC by the agreed-upon date,
AFGC sued again, this time in the Southern District of Florida. 2
AFGC asserted a cause of action for breach of contract, seeking the
$47.5 million owed for the expropriated property and “further con-
sequential damages, which collectively total in excess of USD 95
million.” 3 AFGC explained that the extra $95 million was com-
prised of $72 million in lost shareholder value and $23 million in
lost opportunities, lost profits, and costs. In the alternative, AFGC
asserted a claim against Angola for unjust enrichment.
Angola moved to dismiss, arguing that the district court
lacked subject matter jurisdiction because of the Foreign Sovereign
Immunities Act (“FSIA” or “the Act”), 28 U.S.C. § 1602, et seq. In
Angola’s view, the Act’s broad grant of immunity applied, and
AFGC’s pleading didn’t satisfy the commercial-activity exception.
See id. § 1605(a)(2). Angola said that AFGC’s suit was “based on”
the expropriation of AFGC’s property, not a breach of contract. So
2 The D.C. lawsuit was dismissed on sovereign-immunity grounds, and AFGC
voluntarily dismissed its appeal—both long after the events at issue in this
case. Afr. Growth Corp. v. Republic of Angl., 17-cv-02469 (D.D.C.), ECF Nos. 72–
73, 76-1.
3 We aren’t sure whether the “collectively” refers to both the expropriated
property and the consequential damages or just to the consequential damages.
If it refers to both, then AFGC is seeking collectively $95 million. If it refers to
only the consequential damages, then AFGC is seeking about $142.5 million
($47.5 million in expropriated property and $95 million in consequential dam-
ages). Either way, as we explain below, AFGC alleged that all its harm oc-
curred before Angola breached the contract.
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 6 of 36
6 Opinion of the Court 21-11136
because expropriation wasn’t commercial activity, Angola con-
cluded, the general FSIA immunity applied, not subject to a limited
exception.
The district court agreed and granted Angola’s motion to
dismiss. In explaining the basis for its decision, the district court
said that “the gravamen of this case is the expropriation of real
property,” so Angola retained its immunity. AFGC now appeals.
II. STANDARD OF REVIEW
We review de novo a district court’s determination of
whether it had jurisdiction under the FSIA. Devengoechea v. Bolivar-
ian Republic of Venez., 889 F.3d 1213, 1220 (11th Cir. 2018).
III. DISCUSSION
AFGC contends that the gravamen of its complaint is the
breach of contract and that the breach of contract was commercial,
not sovereign in nature. We disagree.
We proceed in three steps. First, we outline how the Foreign
Sovereign Immunities Act works and how its exceptions apply. Sec-
ond, we conclude that this lawsuit is “based on” Angola’s expropri-
ation of AFGC’s property. Third, we determine that Angola’s ex-
propriation isn’t commercial activity that satisfies the FSIA’s com-
mercial-activity exception.
A. The Foreign Sovereign Immunities Act in General
Under the Foreign Sovereign Immunities Act, “a foreign
state is presumptively immune from the jurisdiction of United
States courts; unless a specified exception applies, a federal court
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 7 of 36
21-11136 Opinion of the Court 7
lacks subject-matter jurisdiction over a claim against a foreign
state.” Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993); see 28 U.S.C.
§ 1605 (listing exceptions). Because AFGC argues only that the
commercial-activity exception applies, we limit our discussion to
that exception. See 28 U.S.C. § 1605(a)(2).
As relevant here, the third clause of the commercial-activity
exception provides jurisdiction over a foreign state when “the ac-
tion is based . . . 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.”
Id. § 1605(a)(2). 4
We’ve explained that, to invoke jurisdiction under this
clause, “(1) the lawsuit must be based upon an act that took place
outside the territory of the United States; (2) the act must have
been taken in connection with a commercial activity; and (3) the
act must have caused a direct effect in the United States.” Deven-
goechea, 889 F.3d at 1224 (quoting de Csepel v. Republic of Hung., 714
F.3d 591, 598 (D.C. Cir. 2013)) (cleaned up).
Only the second and third prongs are at issue. 5 The parties
dispute which act the lawsuit is “based on” and whether the act
4 The commercial-activity exception has other clauses, but because AFGC
doesn’t argue that those clauses supply jurisdiction, we don’t discuss them.
See 28 U.S.C. § 1605(a)(2).
5 Either way, the act took place outside the United States. If the act in question
was the expropriation, then it took place in Luanda, Angola. And if the act
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 8 of 36
8 Opinion of the Court 21-11136
(whatever it was) was taken in connection with a commercial ac-
tivity as well as whether that act (again, whatever it was) caused a
direct effect in the United States. We first must decide what act
this lawsuit is “based on.”
B. AFGC’s lawsuit is “based on” the expropriation of its property.
“[A]t the first step in a commercial-activity-exception case,
we must identify the conduct upon which the suit is based.” De-
vengoechea, 889 F.3d at 1222 (citing OBB Personenverkehr AG v. Sachs,
577 U.S. 27, 33 (2015)). Unfortunately, “[t]he Act itself does not
elaborate on the phrase ‘based upon,’” Sachs, 577 U.S. at 33, and
the Supreme Court has noted that “the relatively sparse legislative
history offers no assistance.” Nelson, 507 U.S. at 357.
When assessing what act a suit is “based upon,” we must
look at its “basis” or “foundation.” Id. (citations omitted). “That,
in turn, requires us to look at ‘the “particular conduct” that consti-
tutes the “gravamen” of the suit.’” Devengoechea, 889 F.3d at 1222(quoting Sachs, 577 U.S. at 33). “In other words, we focus on the
‘core’ of the suit—the foreign state’s ‘acts that actually injured’ the
plaintiff.” Id. (quoting Sachs, 577 U.S. at 33); see also Gravamen,
Black’s Law Dictionary (11th ed. 2019) (defining “gravamen” as
“[t]he substantial point or essence of a claim, grievance, or com-
plaint.”). We look to the “elements of a claim that, if proven,
was the breach of the settlement agreement, then it took place in Lisbon, Por-
tugal.
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 9 of 36
21-11136 Opinion of the Court 9
would entitle a plaintiff to relief.” Nelson, 507 U.S. at 357. 6 And we
compare the plaintiff’s “theory of the case” and the facts her “claims
turn on” with the act she claims lies at the basis of her suit. Sachs,
577 U.S. at 35.
To explain what this means, we consider two Supreme
Court decisions that flesh out this analysis. We concede, though,
that neither gets us all the way to an answer in this case.
First, in Sachs, the plaintiff bought a European train ticket in
California. Id. at 30. Unfortunately, she fell and injured herself in
Austria. Id. The Supreme Court determined that the “gravamen”
of her tort claim was the wrongful failure to warn and the danger-
ous conditions that resulted in her injury—both of which occurred
in Austria. Id. at 35–36 (explaining that there was nothing wrongful
about the sale of the ticket standing alone so, without the unsafe
boarding conditions, there would have been nothing to warn the
plaintiff about). So despite a commercial aspect (buying the train
ticket), the Supreme Court determined that the gravamen of the
suit was the slip-and-fall in Austria. Id.
Next, in Nelson, the plaintiff signed an employment agree-
ment to work at a government-run hospital in Saudi Arabia. 507
U.S. at 358. Regrettably, during the plaintiff’s stay in that country,
the Saudi government arrested and tortured the plaintiff. Id. at
6 We don’t engage in a “one-element approach.” Under that approach, if an
act establishes “a single element of a claim,” then a suit raising the claim is
“based upon” the act. Sachs, 577 U.S. at 395–96.
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 10 of 36
10 Opinion of the Court 21-11136
352–53. The plaintiff sued for tort claims in connection with his
employment agreement, but the Supreme Court again determined
that the “gravamen” of the plaintiff’s claims centered on Saudi Ara-
bia’s tortious conduct. Id. at 358.
These cases are helpful, but as we mentioned, they don’t
help us to fully resolve the case before us. That’s because in those
cases, only one wrongful act—the tortious act—occurred. See
Sachs, 577 U.S. at 35 (“[T]here is nothing wrongful about the sale
of the Eurail pass standing alone.”). Here, though, two wrongful
acts—the expropriation and the breach of the settlement agree-
ment—happened. Id. at 36 n.2 (“[W]e consider here only a case in
which the gravamen of each claim is found in the same place.”). So
a case with just a single wrongful act does not fully enlighten us as
to what the “gravamen” of a case is when two wrongful acts are
alleged.
As it turns out, though, our precedent does. Indeed, it com-
pels the outcome here. In Beg v. Islamic Republic of Pakistan, the Pa-
kistani government seized millions of dollars of property from the
plaintiff there. 353 F.3d 1323, 1324 (11th Cir. 2003). The Pakistani
government offered the plaintiff “an alternative parcel of land,”
which Beg accepted. Id. But the Supreme Court of Pakistan re-
fused to enforce the agreement because the Pakistani government
didn’t have title to the alternative parcel. Id. Though Beg sued, we
determined that the gravamen of his claim was the expropriation—
which was a sovereign taking, not a commercial activity. Id. We
rejected Beg’s argument that agreement between himself and the
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 11 of 36
21-11136 Opinion of the Court 11
government was enough to invoke the commercial-activity excep-
tion because “[d]etermining whether or how to compensate prop-
erty owners for takings is also a sovereign function, not a market
transaction.” Id. at 1327. In Beg, then, the government expropri-
ated the plaintiff’s land, agreed to compensate him, and then re-
neged.
This case is materially indistinguishable. So we must con-
clude that AFGC’s suit is “based upon” Angola’s expropriation.
That’s so for two reasons.
First, in both Beg and AFGC’s case, the government took
property and then reneged on its deal with the plaintiff to compen-
sate the plaintiff for having taken the property. So while AFGC’s
claims and its theory of the case partly turn on Angola’s breach of
the settlement agreement, the settlement agreement was the means
of compensating AFGC for the property Angola allegedly expropri-
ated. Id. (explaining that a contract offer was a method of deter-
mining whether or how to compensate a property owner for a tak-
ing). As AFGC’s complaint explains, the agreement was reached
to resolve the “dispute relating to Angola’s unlawful seizure and
expropriation of assets and real properly lawfully owned by AFGC
and its Angolan subsidiaries[.]” Doc. 50 ¶ 2. The settlement agree-
ment, according to AFGC, was designed to remedy the injury
caused by Angola’s expropriation. Id. ¶ 58. (“Angola agreed to pay
AFGC USD 47.5 million in exchange for and as compensation for the
AFGC Angolan Assets, in addition to other negotiated terms.”)
(emphasis added). We don’t see how this scenario is
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 12 of 36
12 Opinion of the Court 21-11136
distinguishable from the one in Beg—the government took prop-
erty and then reneged on a contract to compensate. AFGC’s at-
tempts to distinguish Beg are unpersuasive. For instance, while
AFGC argues that Beg didn’t make a contract claim in his com-
plaint, our precedent—which we must follow—makes clear that
the precise language Beg used didn’t matter. Beg, 353 F.3d at 1327(“Beg contends that the Punjabi regional government’s agreement
to compensate him is the equivalent of a contract and, therefore, is
commercial activity. This analogy is not persuasive.”).
Second, in both Beg and AFGC’s case, the plaintiff was “actu-
ally injured” by the expropriation—not the breach. See id. In both
cases, the agreement was the means of redressing an injury previ-
ously inflicted. When we determine what act a lawsuit is “based
upon,” we must “zero[] in on the . . . acts that actually injured [the
plaintiff].” Sachs, 577 U.S. at 35. Here, the breach of contract did
not injure AFGC; the expropriation did. Angola’s obligation under
the settlement agreement was to remedy the expropriation injury.
Cf. France.com, Inc. v. French Republic, 992 F.3d 248, 253 (4th Cir.
2021) (explaining that the conduct that “actually injured” the plain-
tiff was the seizure of France.com, not the later use of the website
for tourism).
Although AFGC characterizes the initial expropriation as ir-
relevant to its theory of the case, its complaint tells a different story.
AFGC doesn’t just seek $47.5 million in compensatory damages; it
seeks $142.5 million—triple the amount of its alleged settlement
agreement. To be sure, AFGC says in one paragraph that the extra
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 13 of 36
21-11136 Opinion of the Court 13
$95 million is an estimation of “further consequential damages . . .
resulting from the breach.”
But allegations earlier in the complaint belie that characteri-
zation. Paragraph 25 brings the reader back to the negotiating table
between AFGC and Angola:
25. AFGC explained at that point how it had arrived
at its compromise settlement offer of USD 55 million,
as stated in the February 1 Letter. As related to Dr.
Rodrigues Neto and her colleague, the foreseeable
and actual loss to AFGC arising from Angola’s seizure
of the AFGC Assets, if AFGC was not properly and
promptly compensated by Angola, was approxi-
mately USD 95 million. This USD 95 million amount
is comprised of a continuing loss of shareholder value
at USD 72 million (8 million issued shares valued at
the time of merger at USD 10/share, then trading at
USD 1/share), plus the loss of new and pending in-
vestment opportunities into AFGC, lost reve-
nue/profits, reputational damage and significant fees
and expenses incurred by AFGC in prosecuting its
claims against Angola.
Id. ¶ 25. AFGC, in other words, is seeking $95 million in conse-
quential damages resulting from the expropriation of its property.
Here’s how we know: AFGC and Angola hadn’t reached a deal
when AFGC says it suffered the $95 million loss. So Angola’s later
breach of the settlement agreement cannot be the source of the $95
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 14 of 36
14 Opinion of the Court 21-11136
million dollars in consequential damages because AFGC alleges
that those damages had already occurred when it was negotiating the
settlement agreement.
In sum, Beg controls this case.
We respectfully disagree with Judge Wilson’s thoughtful dis-
sent because we don’t read Beg the same way as he does. Judge
Wilson distinguishes Beg in two ways. He says first, that Beg didn’t
speak to the question at hand and second, that AFGC has alleged a
harm that the Beg plaintiff didn’t. Wilson Dissent at 8–9, and 11–
12.
On the first point, as we’ve explained, we think Beg is mate-
rially indistinguishable. Both in Beg and here, the sovereign coun-
try took property from the plaintiff. Beg, 353 F.3d at 1325. Simi-
larly, in both Beg and here, the plaintiff accepted compensation in
principle for the taking. Id. And in both Beg and here, the sovereign
country reneged on compensating the plaintiff. Id. The only dif-
ference, as we see it, is that Pakistan offered Beg land in exchange
and Angola offered AFGC money. But we think that is a meaning-
less distinction here and doesn’t alter the “gravamen” of the action.
To be sure, Judge Wilson (rightly) points out that Beg didn’t explic-
itly hold that the gravamen of the case was the expropriation. Wil-
son Dissent at 8. Rather in Beg, we held that expropriation was a
sovereign rather than commercial act. Id. But in so doing, we nec-
essarily decided that the gravamen of the case was the expropria-
tion rather than the breach of contract. Id. Indeed, Beg’s analysis
would have looked quite different if the Beg panel thought the
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 15 of 36
21-11136 Opinion of the Court 15
gravamen of the case was the breach of the contract with the plain-
tiff. If that were the case, the analysis would have resembled Judge
Wilson’s rather than the Beg panel’s analysis of expropriation. But
that’s not what happened, and so, in our view, Beg is materially in-
distinguishable from our case.
As to Judge Wilson’s second point—that AFGC was bargain-
ing for something different than the Beg plaintiff because AFGC dis-
missed its lawsuit and ended its lobbying efforts—we read AFGC’s
complaint differently. Wilson Dissent at 11. When we “zero[] in”
on the gravamen—the basis—of the suit, it is for expropriation.
Sachs, 577 U.S. at 35. AFGC’s harm stems from the expropriation,
not the breach, because AFGC admits that the harm occurred be-
fore the contract was formed—in other words, from the expropri-
ation, not from the breach of the contract. Nor does AFGC assert
that it forewent lobbying against Angola or dismissed its lawsuit
because of Dr. Neto’s alleged agreement (nor could it, given that
AFGC promised to do both only upon payment in full, which it
never received). So AFGC hasn’t explained how the alleged breach
of the contract was what “actually injured” it.
AFGC tries to parry this conclusion with five responses.
None is persuasive.
One, AFGC says that the reason that Angola entered the con-
tract isn’t relevant. The Supreme Court, AFGC continues, rejected
the proposition that a court should enquire into the “purpose” of a
transaction to determine whether the transaction is commercial.
That’s true, but it’s not relevant here.
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 16 of 36
16 Opinion of the Court 21-11136
Indeed, in Republic of Argentina v. Weltover, Inc., 504 U.S. 607(1992), the Supreme Court explained that the purpose—or the
why—of an act was irrelevant for the second-order question of
whether an act is commercial. Id. at 614. But that analysis doesn’t
answer our first-order question: whether an act is the basis of a law-
suit. And we don’t have to inquire into the purpose of the settle-
ment agreement to see that it amounts to an agreement to com-
pensate AFGC for the expropriation. That’s simply what the agree-
ment is: a promise to pay for property taken in exchange for a re-
lease of claims for the taking of the property.
Two, AFGC relies on Guevara v. Republic of Peru, which held
that Peru’s offer of compensation for information on a fugitive was
“commercial activity.” 468 F.3d 1289, 1294 (11th Cir. 2006). But
again, Guevara also dealt with only a single wrongful act: the
breach of contract. So it cannot help us determine which act is the
gravamen of AFGC’s complaint.
Three, AFGC points to our Devengoechea v. Bolivarian Republic
of Venezuela decision for the proposition that the conduct that actu-
ally injured AFGC is the breach of the contract. 889 F.3d at 1222.
But we think that Devengoechea is also distinguishable. There, the
plaintiff owned a collection of rare antiquities that had belonged to
Simon Bolívar. Id. at 1217. The plaintiff allowed Venezuela to bor-
row the collection to see if it would purchase the collection from
him. Id. Venezuela took the collection back to Venezuela and then
refused to return it. Id. Devengoechea is distinguishable because the
wrongful act in Devengoechea was breaking a bailment, not
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 17 of 36
21-11136 Opinion of the Court 17
expropriation. Id. at 1221. Indeed, Venezuela came into possession
of the collection only because the plaintiff gave Venezuela the col-
lection under a bailment arrangement. So “[e]ven Venezuela [had]
not characterized itself as having exercised sovereign powers to ob-
tain or retain the Collection.” Id.Four, the D.C. Circuit’s decision in de Csepel v. Republic of
Hungary is to similar effect. 714 F.3d 591 (D.C. Cir. 2013). There,
during the Second World War, the defendant confiscated the plain-
tiff’s valuable art. Id. at 595–96. But after the war, Hungarian mu-
seums and a university “arranged with representatives of the [plain-
tiff’s] Heirs to retain possession . . . so that the works could con-
tinue to be displayed in Hungary.” Id. Then, fifty years later, the
plaintiffs demanded possession back and Hungary refused. Id.The D.C. Circuit explained that “by entering into bailment
agreements to retain possession of the expropriated artwork and
later breaching those agreements by refusing to return the artwork,
Hungary took affirmative acts beyond the initial expropriation to
deprive the family of their property rights in the Collection.” Id. at
600. In other words, by entering the bailment arrangements, Hun-
gary’s expropriation of the art ended, and Hungary effectively rec-
ognized that the plaintiffs owned the property, even though the
property remained in Hungary’s possession at that time. Id. So
when Hungary refused to return the art, it wasn’t continuing an
expropriation, as that had already ended. Rather, it was breaching
the subsequent bailment agreement. As in in Devengoechea, then,
in de Csepel, the harm—the gravamen, the focus—was the breach
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 18 of 36
18 Opinion of the Court 21-11136
of the bailment, not the expropriation. Here, though, Angola’s fail-
ure to compensate AFGC did not go “beyond the initial expropria-
tion,” id.; it was part and parcel of it. Cf. Beg, 353 F.3d at 1327 (ex-
plaining that a government’s failure to compensate a party for a
taking and the taking itself are two sides of the same expropriation
coin, which happens to be a sovereign activity). Indeed, the expro-
priation never ended here.
Five, AFGC relies on Petersen Energía Inversora S.A.U. v. Argen-
tine Republic and YPF S.A., 895 F.3d 194 (2d Cir. 2018). In Petersen,
YPF was a company that was wholly owned by Argentina. Id. at
199. Argentina offered the public the opportunity to buy shares in
the company—an initial public offering. Id. To encourage invest-
ment, Argentina and YPF amended YPF’s bylaws to protect inves-
tors from “attempts by Argentina to renationalize the company.”
Id. For instance, if Argentina later reacquired 49% or more of YPF’s
shares, then Argentina was required to make a tender offer for the
remaining shares. Id. at 199–200. Put differently, if Argentina be-
came (close to) a majority shareholder of YPF, it was required to
give the remaining owners a chance to exit the company. Id. Later,
Argentina expropriated from a third party a controlling position in
YPF but refused to make a tender offer to the remaining sharehold-
ers, violating the bylaw. Id. at 202 (Argentina’s Deputy Economy
Minister describing as “fools . . . those who think that the State has
to be stupid and buy everyone according to YPF’s own law, re-
specting its by-law.”). One shareholder sued, arguing that Argen-
tina had breached its promise to comply with the bylaws. Id. at
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 19 of 36
21-11136 Opinion of the Court 19
203. Argentina, of course, countered that the suit was for expro-
priation. Id.
The Second Circuit concluded that the plaintiff’s harm was
the breach of the tender-offer provision, not the expropriation. Id.
at 207. This conclusion is unsurprising, given that none of the
plaintiff’s property was expropriated (only a third party’s property
was expropriated). So Petersen doesn’t change our conclusion be-
cause it involved only one harm to the plaintiff—the breach of the
bylaws.
***
To recap, if a sovereign power forms a contract with a pri-
vate party and then reneges on it, the sovereign power is engaging
in commercial activity—even if the way that the sovereign reneges
is through what may look like expropriation. So if a sovereign
power accepts performance by the private party and then refuses
to perform, perhaps it could be said to have expropriated the per-
formance, but the gravamen of the subsequent lawsuit is for breach
of contract, regardless. Cf. Devengoechea, 889 F.3d at 1222 (retaining
possession of artifacts); de Csepel, 714 F.3d at 600 (same).
On the other hand, when a sovereign power expropriates
property and promises to repay the property holder but then
breaches that promise, we think that Beg compels the conclusion
that the gravamen of the lawsuit is the expropriation. “But even if
we thought [Beg] wrong, the prior panel precedent rule is not de-
pendent upon a subsequent panel’s appraisal of the initial decision’s
correctness.” Smith v. GTE Corp., 236 F.3d 1292, 1301–02 (11th Cir.
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 20 of 36
20 Opinion of the Court 21-11136
2001) (cleaned up). Given that we must follow Beg, whether we
agree with it just isn’t relevant.
Having identified the gravamen of the suit, we next deter-
mine whether the expropriation satisfies the FSIA’s commercial-ac-
tivity exception. It does not.
C. Angola’s expropriation and failure to compensate AFGC were sover-
eign acts not taken “in connection with a commercial activity.”
Given our conclusion that AFGC’s suit is “based upon” An-
gola’s expropriation and failure to compensate, our prior precedent
compels the conclusion that these actions are sovereign. See Beg,
353 F.3d at 1326 (“The power of eminent domain is a sovereign
power.”) (citing United States v. Carmack, 329 U.S. 230, 236–37
(1946)); id. at 1327 (“Determining whether or how to compensate
property owners for takings is also a sovereign function, not a mar-
ket transaction.”).
Under the FSIA, an activity is “commercial activity” if it is
“either a regular course of commercial conduct or a particular com-
mercial transaction or act.” Devengoechea, 889 F.3d at 1220 (quoting
28 U.S.C. § 1603(d)). To decide whether an activity is commercial,
we look at “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 com-
merce.’” Weltover, 504 U.S. at 614 (quoting Black’s Law Dictionary
270 (6th ed. 1990)). Assessing the commercial character of an act
“is a question of behavior, not motivation.” Nelson, 507 U.S. at 360.
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 21 of 36
21-11136 Opinion of the Court 21
A country engages in commercial activity “only where it acts
in the manner of a private player within the market” or “where it
exercises only those powers that can also be exercised by private
citizens, as distinct from those powers peculiar to sovereigns.” Id.(internal quotation marks omitted). On the other side of the same
coin, “[p]ublic acts . . . require sovereign power and thus cannot be
performed by a private party.” Beg, 353 F.3d at 1325 (citing Wel-
tover, 504 U.S. at 614–16). Public acts “make use of the state’s sov-
ereign authority.” Id.Having decided the gravamen of the lawsuit is the expropri-
ation, the answer is straightforward under our precedent: Angola’s
acts are not commercial activity. Expropriations and compensa-
tion for expropriations are sovereign functions. Beg, 353 F.3d at
1326 (“The power of eminent domain is a sovereign power.”); id.
at 1327 (compensating for a taking is a “sovereign function”); Garb
v. Republic of Poland, 440 F.3d 579, 586 (2d Cir. 2006). (“[E]xpropria-
tions . . . do not fall within the ‘commercial activity’ exception of
the FSIA [because] [e]xpropriation is a decidedly sovereign—rather
than commercial—activity.”).
AFGC’s authorities are well-taken but misplaced because
not one of its slew of cases involves the use of a contract to com-
pensate a plaintiff for the injuries caused by a foreign country’s un-
questionably sovereign acts. More importantly, not one of its cases
involves the use of a contract where the contract itself amounts to
an execution of a sovereign function. See, e.g., Hond. Aircraft Regis-
try v. Gov’t of Hond., 129 F.3d 543, 548–49 (11th Cir. 1997) (breach
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 22 of 36
22 Opinion of the Court 21-11136
of contract to pay for “goods and services”—a “marketplace activ-
ity” available to “private persons”); Guevara, 468 F.3d at 1301(“[T]he oldest American decision recognizing a commercial activi-
ties exception to sovereign immunity involved a reward for cap-
ture.”); Weltover, 504 U.S. at 615 (explaining that “[t]he commercial
character” of the bonds was “confirmed by the fact that they [were]
in almost all respects garden-variety debt instruments[]”); Deven-
goechea, 889 F.3d at 1221–22 (“Nothing about [breaching a bailment
agreement] is uniquely or peculiarly sovereign in nature.”).
This is not a case that involves the use of a contract to
achieve a sovereign function. Cf. Weltover, 504 U.S. at 614–15 (“[A]
contract to buy army boots or even bullets is a ‘commercial’ activ-
ity, because private companies can similarly use sales contracts to
acquire goods.”). Rather, this is a case in which the formation and
breach of the contract is itself a sovereign function. See MOL, Inc.
v. Peoples Republic of Bangladesh, 736 F.2d 1326, 1329 (9th Cir. 1984)
(holding that when a country terminates “an agreement that only
a sovereign could have made,” that breach qualifies as the exercise
of a sovereign function).
Contrary to AFGC’s suggestion, rather than “look[ing]
through” the alleged settlement agreement to see whether a sover-
eign act underlies it, we need look at only the agreement. In its
complaint, AFGC characterized the agreement as a contract to
compensate it for the expropriation it suffered. That is a quintes-
sentially a sovereign act because private parties are generally not in
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 23 of 36
21-11136 Opinion of the Court 23
the business of providing compensation for expropriated property.
Beg, 353 F.3d at 1327. 7
As we’ve noted, we respectfully disagree with Judge Wilson
that Beg is distinguishable. Judge Wilson distinguishes Beg because
there, the plaintiff sought compensation for expropriated property,
while in this case, AFGC allegedly accepted compensation in ex-
change for dismissing its lawsuit, giving up its claims to land, and
ceasing its lobbying efforts. Wilson Dissent at 11. But that analysis
misplaces the gravamen of the lawsuit, which as we’ve explained,
is the failure to compensate for the expropriation, as evidenced by
the fact that all $95 million in damages to which Dr. Neto allegedly
agreed occurred before Angola ever breached the alleged contract.
In short, the gravamen of the lawsuit—as our precedent requires
us to view it—is the failure to compensate for expropriation, not
the settling of the lawsuit. And that is a sovereign act. Id.IV. CONCLUSION
For these reasons, we affirm the district court’s order dis-
missing AFGC’s complaint for lack of subject-matter jurisdiction.
AFFIRMED.
7 We do not deal with a situation in which a private party exercises the power
of eminent domain through a grant of delegated authority. See, e.g., Ga. Power
Co. v. Sanders, 617 F.2d 1112 (5th Cir. 1980) (en banc).
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 24 of 36
21-11136 WILSON, J., dissenting 1
WILSON, Circuit Judge, dissenting:
I respectfully dissent. In my view, plaintiff Africa Growth
Corporation’s (AFGC) case against the Republic of Angola is based
upon a breach of a contract, which in this case falls within the For-
eign Sovereign Immunity Act’s (FSIA) commercial activity excep-
tion to immunity from suit.
As the majority notes, under the FSIA, “a foreign state shall
be immune from the jurisdiction of the courts of the United States
and of the States” unless an identified exception applies. 28 U.S.C.
§ 1604. One such exception is a claim based on “commercial activ-
ity.” Id. § 1605(a)(2). Under that exception, foreign states are not
immune from the jurisdiction of federal or state courts if an action
is 1) “based . . . upon an act” that took place “outside the territory of
the United States,” 2) “in connection with a commercial activity of
the foreign state elsewhere,” and 3) caused “a direct effect in the
United States.” Id. (emphasis added); see also Devengoechea v. Boli-
varian Republic of Venezuela, 889 F.3d 1213, 1224 (11th Cir. 2018). 1 I
will address my views regarding how each of these elements apply
to this particular case in turn.
1 As the majority rightly notes, while the exception in 28 U.S.C. § 1605(a)(2)
describes other scenarios related to commercial activity that would bar im-
munity for foreign states, they are not invoked by AFGC. See Maj. Op., at 7
n.4.
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 25 of 36
2 WILSON, J., dissenting 21-11136
I. “Based Upon”
I diverge from the majority on the initial question: What act
is AFGC’s action based upon? The majority’s analysis comes to the
conclusion that AFGC’s action in the district court is “based upon”
the expropriation of its property by the Angolan government—a
decidedly sovereign activity that would be immune from suit un-
der the FSIA. My analysis reaches a different conclusion. In my
view, the action is “based upon” a breach of contract, which as I
will describe below, is a commercial activity subject to the jurisdic-
tion of our courts. 2
Three questions guide me to the conclusion that this case is
“based upon” a breach of contract. First, what does it mean to be
“based upon” in the context of 28 U.S.C. § 1605(a)(2)? Second,
what are the relevant facts of this particular dispute? And third,
how does the answer to the first question apply to that of the sec-
ond?
Regarding the first question, the Supreme Court has pro-
vided guidance as to the meaning of “based upon,” concluding that
“the phrase is read most naturally to mean those elements of a
claim that, if proven, would entitle a plaintiff to relief under his
2 The initial element in our FSIA commercial activity framework also requires
a determination that the act at issue took place “outside the territory of the
United States.” 28 U.S.C. § 1605(a)(2). I agree with the majority that regard-
less of whether the act is based on the expropriation of property or the breach
of a contract, the act took place outside of the territory of the United States.
Maj. Op., at 7 n. 5.
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 26 of 36
21-11136 WILSON, J., dissenting 3
theory of the case.” Saudi Arabia v. Nelson, 507 U.S. 349, 357 (1993).
Put another way, what forms the “basis,” “foundation,” and “gra-
vamen” of the complaint? OBB Personenverkehr AG v. Sachs, 577 U.S.
27, 33–34 (2015) (quoting Nelson, 507 U.S. at 356–57).
As an example, in Nelson, plaintiff Scott Nelson contracted to
work at a state-run hospital in Saudi Arabia. 507 U.S. at 351–52.
According to the complaint, agents of the Saudi Government later
arrested, imprisoned, and tortured him. Id. at 352–53. After his
release, he and his wife Vivian attempted to sue the Saudi Govern-
ment for various intentional torts, negligent failure to warn, and
derivative injuries. Id. at 353–54. In their argument to the Supreme
Court, the plaintiffs argued that their claims were based upon the
recruitment and hiring activity conducted by the Saudi Govern-
ment and that there was a “sufficient nexus between those com-
mercial activities and the wrongful acts that had allegedly injured
[them].” Id. at 355. The Court roundly rejected that argument and
found the Saudi Government was entitled to immunity under the
FSIA. The Court explained:
In this case, the Nelsons have alleged that petitioners
recruited Scott Nelson for work at the hospital, signed
an employment contract with him, and subsequently
employed him. While these activities led to the con-
duct that eventually injured the Nelsons, they are not
the basis for the Nelsons’ suit. Even taking each of
the Nelsons’ allegations about Scott Nelson’s recruit-
ment and employment as true, those facts alone enti-
tle the Nelsons to nothing under their theory of the
case. The Nelsons have not, after all, alleged breach
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 27 of 36
4 WILSON, J., dissenting 21-11136
of contract . . . but personal injuries caused by peti-
tioners’ intentional wrongs and by petitioners’ negli-
gent failure to warn Scott Nelson that they might
commit those wrongs. Those torts, and not the argu-
ably commercial activities that preceded their com-
mission, form the basis for the Nelsons’ suit.
Id. at 358.
With the meaning of “based upon” established, I move now
to the second question: What are the relevant facts of this particu-
lar dispute? The majority does a sound job of laying out these facts,
but I will repeat the relevant parts from AFGC’s amended com-
plaint for ease of reference.3
In 2015, AFGC (through its wholly-owned subsidiaries) ac-
quired various pieces of real estate and commercial property in Lu-
anda, Angola. A year later, the Angolan Government unlawfully
seized and expropriated AFGC’s assets in the country. AFGC sub-
sequently filed suit in the United States District Court of the Dis-
trict of Columbia seeking to recover 1) the fair market value of and
rents derived from the stolen properties, 2) lost profits from those
properties, 3) damages from investment opportunities that were
lost as a result of the expropriation, 4) damages from AFGC’s tar-
nished reputation, and 5) treble damages under civil RICO statutes.
3 As the majority rightly reminds us, Maj. Op., at 2 n.1, because this is an ap-
peal of the district court’s order granting Angola’s motion to dismiss, we are
required to accept all AFGC’s well-pleaded allegations as true. Kennedy v. Flo-
ridian Hotel, Inc., 998 F.3d 1221, 1230 (11th Cir. 2021).
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 28 of 36
21-11136 WILSON, J., dissenting 5
The parties eventually agreed to send representatives to Lis-
bon, Portugal for the purpose of settling the dispute. Negotiations
went back and forth as to the amount Angola would pay AFGC,
but (according to AFGC) the parties eventually came to an agree-
ment, which an AFGC representative reduced to writing. That
agreement provided that Angola would deposit 47.5 million dollars
into the Florida bank account of AFGC’s attorneys within 15 days
of the meeting. As consideration, AFGC would waive and relin-
quish its rights and claims to its properties in Angola, withdraw its
pending lawsuit in the District of Columbia, and end its global lob-
bying efforts against Angola.
AFGC asked the Angolan representative to sign the agree-
ment; however, while the representative assured AFGC that the
agreement was valid and had the approval of the Angolan Govern-
ment, she stated that her government would memorialize the
agreement in a more formal writing and reconvene in Lisbon the
following week to execute it. The subsequent meeting never hap-
pened, Angola never signed the formal agreement, and Angola
never paid AFGC.
AFGC then filed this new lawsuit in the United States Dis-
trict Court for the Southern District of Florida. Its claims are
straightforward: breach of contract (Count I) and unjust enrich-
ment (Count II)—both premised on the formation of a settlement
agreement that Angola subsequently breached.
The facts in place, I turn now to the third question: Applying
the meaning of “based upon” in 28 U.S.C. § 1605(a)(2) to the facts
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 29 of 36
6 WILSON, J., dissenting 21-11136
at hand, what forms the foundation of AFGC’s complaint? That is,
what are the “elements of [AFGC’s] claim that, if proven, would
entitle [it] to relief under [its] theory of the case”? Nelson, 507 U.S.
at 357; see also Devengoechea, 889 F.3d at 1222.
It seems to me that AFGC’s claims—breach of contract and
unjust enrichment—are based upon the alleged breach of a settle-
ment agreement, rather than the alleged expropriation that
brought the parties to the negotiation table. This becomes clearer
once we consider what AFGC would and would not have to prove
in order to obtain relief should it proceed to trial. Take AFGC’s
breach of contract claim: AFGC would have to prove that 1) the
parties formed a valid contract—whereby (according to the
amended complaint) Angola committed to pay 47.5 million dollars
in consideration for AFGC agreeing to waive all rights and claims
to its Angolan properties (regardless of how rightful those rights
and claims were), withdraw its pending lawsuit in the District of
Columbia, and end its lobbying efforts against the country; 2) that
Angola breached that contract; and 3) that AFGC suffered damages
as a result of Angola’s breach. AFGC would not have to prove that
Angola actually seized and expropriated its property unlawfully.
Indeed, whether or not Angola wrongfully took AFGC’s property
is irrelevant to AFGC’s claims. While AFGC was surely harmed by
Angola’s alleged expropriation, it was also separately harmed by
Angola’s breach of contract. Yet, AFGC only brings suit for the
latter harm, so it is the latter harm that its suit is based upon.
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 30 of 36
21-11136 WILSON, J., dissenting 7
To briefly parrot the Supreme Court, while Angola’s seizure
and expropriation “led to the conduct that eventually injured
[AFGC], they are not the basis for [AFGC’s] suit. Even taking each
of [AFGC’s] allegations about [Angola’s seizure and expropriation]
as true, those facts alone entitle [AFGC] to nothing under [its] the-
ory of the case.” Nelson, 507 U.S. at 358. Rather, what entitles
AFGC to relief—what it has alleged and what forms the basis of its
suit—is that a settlement agreement was created, Angola breached
that agreement, and AFGC was harmed as a result.
To reach the opposite conclusion that AFGC’s lawsuit is
based on the expropriation of its property, the majority relies heav-
ily on, and provides a thoughtful analysis of, our case in Beg v. Is-
lamic Republic of Pakistan, 353 F.3d 1323 (11th Cir. 2003). However,
Beg is distinguishable from the dispute before us today.
According to the allegations in Beg, the Government of Pa-
kistan expropriated the plaintiff’s land in the Punjab region of the
country. 353 F.3d at 1324. Later, the Pakistani Government sent
an official to the United States to offer the plaintiff an alternative
parcel of land, which the plaintiff accepted. Id. Unfortunately for
the plaintiff, the Supreme Court of Pakistan determined the Gov-
ernment of Punjab did not have good title to the new parcel and
rejected the plaintiff’s claims of title. Id. The plaintiff subsequently
sought compensation through litigation in United States federal
court. Id.Assessing the claims in Beg, we largely skipped over any anal-
ysis of what the plaintiff’s suit was “based upon,” focusing instead
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 31 of 36
8 WILSON, J., dissenting 21-11136
on the nature of the conduct at issue. See id. at 1325. In doing so,
we held that Pakistan did not engage in commercial activity be-
cause the lawsuit involved the Government’s power of eminent
domain, a uniquely sovereign power. Id. at 1326. We further held
that “[d]etermining whether or how to compensate property own-
ers for takings is also a sovereign function, not a market transac-
tion.” Id. at 1327. The plaintiff argued that the Pakistani Govern-
ment’s agreement to compensate him was “the equivalent of a con-
tract and, therefore, [was] a commercial activity.” Id. We found
this argument unpersuasive, emphasizing that “the dispositive is-
sue in determining whether an activity is commercial is whether
private actors could undertake this type of activity in a market.” Id.(citing Republic of Argentina v. Weltover, 504 U.S. 607, 614 (1992)).
At first glance, it might appear that Beg controls here. After
all, both involve a government’s exercise of eminent domain and
an eventual failure to pay the property’s owner. However, we
have to remind ourselves of where we are in the analysis. At this
stage, all we are asking is, “What is the action based upon?” For
this question, Beg offers little guidance. Indeed, Beg provides almost
no input on how to determine what an action is based upon when
a sovereign power breaks an agreement to compensate someone
for the use of its eminent domain power. Rather, Beg stands only
for the proposition that when a party is ultimately seeking compen-
sation for a foreign government’s takings abroad, its claims are
based upon an act (whatever that act might be) that is sovereign in
nature.
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 32 of 36
21-11136 WILSON, J., dissenting 9
So, while Beg might have much to say about whether the
conduct at issue is commercial or sovereign, it has little to say
about what the conduct at issue is. For that, we must look to cases
like Nelson and Sachs, which task us with determining what ele-
ments a plaintiff must prove to obtain relief. Nelson, 507 U.S. at
357; Sachs, 577 U.S. at 33–34. Here, AFGC must prove that an
agreement existed, Angola breached that agreement, and AFGC
was harmed by that breach. Thus, it is the breach of the settlement
agreement that AFGC’s action is “based upon.”
Of course, this still leaves the question of whether Angola’s
conduct in breaching the parties’ agreement was commercial or
sovereign.
II. Commercial or Sovereign?
As noted above, 28 U.S.C. § 1605(a)(2) excepts from immun-
ity cases “in which the action is based . . . upon an act . . . in con-
nection with a commercial activity of the foreign state elsewhere.”
(emphasis added). The FSIA provides that a commercial activity is
“either a regular course of commercial conduct or a particular com-
mercial transaction or act. The commercial character of an activity
shall be determined by reference to the nature of the course of con-
duct or particular transaction or act, rather than by reference to its
purpose.” 28 U.S.C. § 1603(d). Therefore, “the question is not
whether the foreign government is acting with a profit motive or
instead with the aim of fulfilling uniquely sovereign objectives.”
Weltover, 504 U.S. at 614. “Rather, the issue is whether the partic-
ular actions that the foreign state performs (whatever the motive
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 33 of 36
10 WILSON, J., dissenting 21-11136
behind them) are the type of actions by which a private party en-
gages in ‘trade and traffic or commerce.’” Id. Here, I believe An-
gola’s actions are “commercial” within the meaning of the FSIA.
As a starting point, we have previously held that a foreign
state’s breach of a contract with a private party can qualify as com-
mercial activity under the FSIA. In Guevara v. Republic of Peru, the
issue we faced was “whether a foreign state’s offer of a reward in
return for information enabling it to locate and capture a fugitive”
fell within the commercial activity exception. 468 F.3d 1289, 1292
(11th Cir. 2006). The district court found that “offering a reward
for capturing a fugitive involves uniquely sovereign objectives,”
and was not a commercial activity. Id. at 1295. On appeal, we re-
versed and reasoned that “[t]he location and capture of a fugi-
tive . . . may be a sovereign act, but that is not what this case is
about.” Id. at 1298. We noted that the plaintiff was not seeking to
compel Peru to capture the fugitive; he was only seeking to enforce
Peru’s promise that it would pay 5 million dollars for information
leading to his capture. Id. at 1298–99. We held that “[t]he under-
lying activity at issue—the exchange of money for information—is
‘commercial in nature and of the type negotiable among private
parties.’” Id. at 1299.
Similarly, here, while taking property and “[d]etermining
whether or how to compensate property owners” for that taking
may be a sovereign act, Beg, 353 F.3d at 1327, that is not what this
case is about. Rather, this case is about Angola entering into and
breaching a contract with AFGC, and this is precisely the type of
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 34 of 36
21-11136 WILSON, J., dissenting 11
action “by which a private party engages in ‘trade and traffic or
commerce.’” Weltover, 504 U.S. at 614.
Now, here is where Beg fits into the analysis and muddies the
waters. However, heeding 28 U.S.C. § 1603(d)’s directive that the
“commercial character of an activity shall be determined by refer-
ence to the nature of the . . . particular transaction or act, rather
than by reference to its purpose,” I believe there is an important
distinction between that case and the dispute before us. In Beg, the
plaintiff argued that the Government of Pakistan reneged on a deal
to compensate him directly for the land it expropriated. 353 F.3d
at 1327. That is, the Pakistani Government took the plaintiff’s land,
promised to give him an alternative parcel of land in exchange, and
then never did. Id. Here, however, the parties were bargaining for
something else. AFGC, after having its property taken away,
brought suit in the United States District Court for the District of
Columbia and apparently started a lobbying effort against Angola.
Angola then (allegedly) agreed to pay 47.5 million dollars in ex-
change for AFGC withdrawing its lawsuit, waiving any claims it
thought it had to the Angolan property, and ending its lobbying
efforts. So, while the nature of the act in Beg was a deal to pay the
plaintiff for the property that was taken, the nature of the act here
is a deal to pay the plaintiff for dropping its lawsuit, rights, and lob-
bying efforts. The former is an act of a sovereign; the latter is an
act that I can imagine any private entity undertaking. And, in my
view, digging any deeper into the purpose of Angola’s action runs
afoul of 28 U.S.C. § 1603(d).
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 35 of 36
12 WILSON, J., dissenting 21-11136
For these reasons, I believe that AFGC’s action is based upon
Angola’s breach of a settlement agreement, and I further believe
that Angola’s act was in connection with commercial activity.
This brings me to the final portion of this FSIA analysis,
which requires a court to determine whether the act of the sover-
eign defendant caused a direct effect in the United States.
III. “Direct Effect” in the United States
As mentioned just above, the commercial activity exception
only applies if the alleged act of the foreign sovereign “cause[d] a
direct effect in the United States.” 28 U.S.C. § 1605(a)(2); see also
Weltover, 504 U.S. at 617–19. Based on the allegations in AFGC’s
amended complaint, this element is clearly met. According to
AFGC, the contract it entered into with Angola required Angola to
deposit 47.5 million dollars into an attorney trust bank account in
the State of Florida, which would be held for the benefit of AFGC,
a business incorporated in the State of Nevada. This allegation is
sufficient to establish a direct effect in the United States. See Wel-
tover, 504 U.S. at 617 (“Because New York was thus the place of
performance for Argentina’s ultimate contractual obligations, the
rescheduling of those obligations necessarily had a ‘direct effect’ in
the United States: Money that was supposed to have been delivered
to a New York bank for deposit was not forthcoming.”).
USCA11 Case: 21-11136 Document: 45-1 Date Filed: 05/23/2023 Page: 36 of 36
21-11136 WILSON, J., dissenting 13
IV. Conclusion
For the above reasons, I would hold that the commercial ac-
tivities exception applies, and that the Republic of Angola is not
immune from this particular suit. Therefore, I respectfully dissent.