Ricardo Devengoechea v. Bolivarian Republic of Venezuela, 889 F.3d 1213

Background

Plaintiff Ricardo Devengoechea (U.S. citizen, Florida) owned the “Bolívar Collection,” a valuable set of historic items he inherited.
In October 2007 Venezuelan government officials (including Delcy Rodríguez) traveled to Orlando, negotiated, and arranged for Devengoechea to travel to Venezuela with the Collection for further inspection; Venezuela paid travel and facilitated an expedited U.S. passport.
Devengoechea left the Collection with Venezuelan officials in Venezuela based on an understanding that Venezuela would either purchase the Collection or return it; Venezuela never paid or returned the items after repeated inquiries.
Devengoechea sued in the Southern District of Florida asserting breach of agreement and unjust enrichment and invoked all three clauses of the FSIA commercial-activity exception, among other claims.
The district court denied Venezuela’s motion to dismiss for sovereign immunity, finding jurisdiction under the FSIA commercial-activity exception; the Eleventh Circuit affirmed, focusing on the third clause (extraterritorial act causing a direct effect in the U.S.).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the FSIA commercial-activity exception applies (third clause)	Devengoechea: Venezuela’s refusal to pay/return (an act in Venezuela) was in connection with commercial negotiations and caused a direct effect in the U.S. because payment/return was due to him in Florida.	Venezuela: Sovereign immunity bars suit; actions are sovereign/expropriation or otherwise not covered.	Held: Yes. The third clause applies — an extraterritorial commercial act by Venezuela caused a direct effect in the U.S. where payment/return was due.
Whether Venezuela’s acts were “commercial activity” under the FSIA	Devengoechea: Venezuela negotiated and acted like a private buyer; these are commercial acts.	Venezuela: (conceded at district court) activity is commercial; otherwise argued sovereign character or expropriation.	Held: Activities were commercial in nature (market negotiations, travel, inspections).
Whether actions of Venezuelan officials are attributable to the State (authority required)	Devengoechea: Officials acted with apparent and, as pleaded, actual authority (government jet, official letter, named officials).	Venezuela: Contest attribution and sufficiency of authority of agents.	Held: Apparent authority suffices under Eleventh Circuit precedent (Aquamar); and, even if actual authority were required, complaint sufficiently alleged it at the motion-to-dismiss stage.
Whether claims are really expropriation claims (invoking FSIA expropriation exception instead)	Devengoechea: Claims are commercial (bailment/contract/unjust enrichment), not sovereign takings.	Venezuela: Argues plaintiff previously pleaded expropriation and cannot now rely on commercial-activity exception.	Held: Plaintiff may plead in the alternative; facts do not show sovereign expropriation. Commercial-activity exception governs.

Key Cases Cited

Aquamar S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279 (11th Cir.) (apparent authority of foreign representatives can suffice to waive immunity)
Saudi Arabia v. Nelson, 507 U.S. 349 (U.S. 1993) (distinguishing commercial acts from sovereign acts when determining FSIA exceptions)
OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390 (U.S. 2015) (interpretation of “based upon” and locating the gravamen of the suit)
Republic of Argentina v. Weltover, Inc., 504 U.S. 607 (U.S. 1992) (definition of “commercial” under FSIA and what constitutes a direct effect in the U.S.)
de Csepel v. Republic of Hungary, 714 F.3d 591 (D.C. Cir.) (third-clause jurisdiction where failure to return goods caused direct effect in the U.S.)
Samco Global Arms, Inc. v. Arita, 395 F.3d 1212 (11th Cir.) (a direct effect arises when goods or monies are due in the U.S.)
Beg v. Islamic Republic of Pakistan, 353 F.3d 1323 (11th Cir.) (expropriation is a sovereign act distinct from commercial activity)