The case of the day is Devengoechea v. Bolivarian Republic of Venezuela (11th Cir. 2018). Ricardo Devengoechea, a US citizen who lived in Florida, was the descendant of Joaquín de Mier, a friend of the illustrious Simón Bolívar. Bolívar spent his last days on the island of Santa Maria with de Mier, and de Mier had a collection of Bolívar’s papers and personal effects that passed to his heirs through the generations, and ultimately to Devengoechea.
High officials of the Venezuelan government came to Florida to negotiate with Devengoechea for the purchase of the collection. They persuaded Devengoechea to travel back to Venezuela with them and with the collection so that government experts could evaluate it. Devengoechea agreed. Can you guess what happened? Several years later, Devengoechea is back in the United States, but the collection is still in Venezuela, and the government has not paid for it or provided an explanation.
Venezuela conceded that its activity—approaching Devengoechea, negotiating for the purchase of the collection, etc.—was “commercial” activity, so as to bring the commercial activity exception to FSIA immunity potentially into play. On the one hand, this is a somewhat surprising concession, given a tendency among foreign sovereigns to point to the sovereign or public purposes of their activities notwithstanding the FSIA’s clear statement that it is the nature of the activity, not its purpose, that determines whether it is commercial. But on the other hand, the concession was probably wise, as the outcome of the issue is pretty clear.
But Venezuela deployed a second argument—the case was not “based upon” the failure to pay or to return the collection, which everyone agreed were commercial activities. The judge disagreed. Under the Supreme Court’s precedents, Sachs and Nelson, you look at the gravamen of the case, what the case is really about. You can do a lot of fancy analysis, but anyone looking at the case would have to say that it’s about taking the collection and not paying for it. Thus the commercial activity exception applied.