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. 117 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 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).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
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.