# 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 Plaintiff

- Appellant

,

v

.

CONSULATE OF NIGERIA

, Defendant

- Appellee

. Appeal from the United States District
Court for the Northern District of Illinois, Eastern Division.

No. 1 17 C 00140

Edmond E. Chang

, Judge

.

O R D E R

Chinyere Nwoke sued the Consulate of Nigeria for breach of contract after it allegedly fail ed 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 Im munities Act, 28 U.S.C. §§ 1602

– 1611 . Because Nigeria ’s immunity under

th is Act depri ved the court of subject

- matter jurisdiction, we affirm the judgment.

* We have agreed to decide th is 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 F ED

. R. A PP

. P

. 34(a)(2)(C)

. NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 18

- 1622 Page 2

This suit was short

- lived in the district court. In her complaint, Nwoke allege d
that in 2016 she paid nearly $500 to the Nigerian C onsulate for passports for her and her son. They prov ided 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

- mer its grounds for dismissal, w e turn first to subject

- matter jurisdiction. See Ruhrgas AG v. Marathon Oil
Co. , 526 U.S. 574, 584

– 85 (1999). This suit against the C onsulate is an action against a

“ foreign state. ” See 28 U.S.C. § 1603. F ederal courts have subj ect

- matter jurisdiction over claims against a foreign state only if the foreign state “ is not entitled to immunity ” under the Foreign S overeign 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. § 16 04. N woke point s to no international agreement , so the
Consulate is immune unless an e xception within the Act applies. On appeal Nwoke develops arguments that two exceptions apply, but neither does.

Nwoke first invokes the exception for acts “based upo n a commercial activity” in 28 U.S.C. § 1605(a)(2), but th at exception does not appl y 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.

N woke argues that t he 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 activi ty 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. Pr ivate parties cannot issue national passports, so the Consulate was engag ed in sovereign activity

.

Second

, Nwoke invokes the exception for a foreign state’s “tortious act s ” 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 thatNo. 18

- 1622 Page 3

foreign state. ” Id. But t he Act excludes from “tortious acts” conduct based on “interference with contract rights.” I d

. § 1605(a)(5)(B) ; s ee also Tort

, B LACK ’ S L AW
D ICTIONARY (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 co ntract . S o § 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 f unctions,” 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 w hether 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 , 93 6 F.2d 393, 395 (9th Cir. 1991). A n 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.