Chinyere Nwoke v. Consulate of Nigeria ( 2018 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 29, 2018 *
Decided July 2, 2018
Before
DIANE P. WOOD, Chief Judge
MICHAEL S. KANNE, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18-1622
CHINYERE U. NWOKE Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division.
v. No. 117 C 00140
CONSULATE OF NIGERIA, Edmond E. Chang,
Defendant-Appellee. Judge.
ORDER
Chinyere Nwoke sued the Consulate of Nigeria for breach of contract after it
allegedly failed to provide her and her son with passports for which she says she paid.
The district court dismissed Nwoke’s claims for lack of jurisdiction under the Foreign
Sovereign Immunities Act, 28 U.S.C. §§ 1602–1611. Because Nigeria’s immunity under
this Act deprived the court of subject-matter jurisdiction, we affirm the judgment.
*
We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 18-1622 Page 2
This suit was short-lived in the district court. In her complaint, Nwoke alleged
that in 2016 she paid nearly $500 to the Nigerian Consulate for passports for her and her
son. They provided fingerprints, photographs, and envelopes for the passports. When
Nwoke did not receive the passports, she sued the consulate for breach of contract. The
district court dismissed the suit for two reasons. First, Nwoke failed to effectuate proper
service under 28 U.S.C. § 1608(a). Second, Nigeria is “immune from the jurisdiction of
the courts of the United States,” id. § 1604, and no exception to that immunity under
§ 1605 applies.
Because there is no required “sequencing” among different non-merits grounds
for dismissal, we turn first to subject-matter jurisdiction. See Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 584–85 (1999). This suit against the Consulate is an action against a
“foreign state.” See 28 U.S.C. § 1603. Federal courts have subject-matter jurisdiction over
claims against a foreign state only if the foreign state “is not entitled to immunity”
under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605–1607, or an international
agreement. 28 U.S.C. § 1330(a). See Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993). The
Act, in turn, dictates that “a foreign state shall be immune from the jurisdiction of the
courts of the United States” except as provided in the Act itself or by international
agreement. 28 U.S.C. § 1604. Nwoke points to no international agreement, so the
Consulate is immune unless an exception within the Act applies. On appeal Nwoke
develops arguments that two exceptions apply, but neither does.
Nwoke first invokes the exception for acts “based upon a commercial activity” in
28 U.S.C. § 1605(a)(2), but that exception does not apply to the issuance of passports. A
foreign state is immune from federal jurisdiction for its “sovereign or public acts,” but
not its acts that are “private or commercial in character.” Saudi Arabia, 507 U.S. at 360.
Nwoke argues that the Consulate’s actions were commercial because it “was making a
profit from a fraudulent activity.” But we do not consider a foreign state’s profit
“motivation” in determining whether its activity is sovereign or commercial. Id.; see 28
U.S.C. § 1603(d). Instead, we look only to whether a private person could have engaged
in similar conduct. Saudi Arabia, 507 U.S. at 360. Private parties cannot issue national
passports, so the Consulate was engaged in sovereign activity.
Second, Nwoke invokes the exception for a foreign state’s “tortious acts” in 28
U.S.C. § 1605(a)(5), but that exception does not apply to contract claims. A foreign state
may be sued under this exception for personal injury, wrongful death, or property
damage occurring in the United States “caused by the tortious act or omission of that
No. 18-1622 Page 3
foreign state.” Id. But the Act excludes from “tortious acts” conduct based on
“interference with contract rights.” Id. § 1605(a)(5)(B); see also Tort, BLACK’S LAW
DICTIONARY (10th ed. 2014) (defining “tort” as “[a] civil wrong, other than breach of
contract, for which a remedy may be obtained (emphasis added)). Nwoke’s suit falls
within this exclusion because she accuses the Consulate only of breach of contract. So
§ 1605(a)(5)(B) shields the Consulate from the jurisdiction of federal courts.
This exception does not apply for another reason. The Act preserves immunity
for “tortious acts” based on “discretionary functions,” id. § 1605(a)(5)(A). Nwoke has
not met her burden to show that immunity does not apply here. See Alberti v. Empresa
Nicaraguense De La Carne, 705 F.2d 250, 256 (7th Cir. 1983). To decide whether conduct is
discretionary under the Act, courts use the same principles as used under the Federal
Tort Claims Act, 28 U.S.C. 2680(a). See Risk v. Halvorsen, 936 F.2d 393, 395 (9th Cir.
1991). An act is discretionary if it involves “an element of judgment or choice” and the
decision involves “considerations of public policy.” Lipsey v. United States, 879 F.3d 249,
254 (7th Cir. 2018). Nwoke makes no assertion that Nigeria’s issuance of passports is
mandatory or free from policy considerations, so the Consulate’s immunity is preserved
for this reason as well.
We have considered Nwoke’s other arguments, and none has merit. The
judgment of the district court is AFFIRMED.