Exxon Mobil Corp. v. Corporación Cimex, S. A. (Cuba) · ¶95

To litigate a claim against a sovereign defendant— whether foreign (as here) or domestic—the plaintiff must establish two things: a cause of action, and an abrogation of sovereign immunity. The two are “analytically distinct.” FDIC v. Meyer, 510 U. S. 471, 484 (1994). A cause of action exists if “the source of substantive law upon which the claimant relies provides an avenue for relief.” Ibid. By contrast, the immunity inquiry turns on the state defendant’s amenability to suit—that is, whether Congress has made the defendant, even though sovereign, subject to the jurisdiction of the federal courts. The creation of a cause of action and the abrogation of immunity do not always travel together: Rather, Congress can do one without doing the other. For example, the FSIA’s exceptions generally abrogate immunity without supplying a cause of action; and conversely, most statutory causes of…

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