author: MORITZ, Circuit Judge.

text:
    Aarica ROMERO, Plaintiff-Appellant, v. TOP-TIER COLORADO LLC; Richard J. Warwick, Defendants-Appellees. Secretary of Labor, Amicus Curiae.
    No. 16-1057
    United States Court of Appeals, Tenth Circuit.
    FILED March 7, 2017

      Jamie G. Sypulski, Law Office of Jamie Golden Sypulski, Chicago, Illinois (Clifford P. Bendau, II, The Bendau Law Firm, Phoenix, Arizona, Douglas M. Werman, and Sarah J. Arendt, Werman, Salas P.C., with her on the briefs), for Plaintiff-Appellant.
    Gregory E. Givens, Gregory E. Givens Law Offices, Colorado Springs, Colorado, for Defendants-Appellees.
    M. Patricia Smith, Solicitor of Labor, Jennifer S. Brand, Associate Solicitor, Paul L. Frieden, Counsel for Appellate Litigation, and Sarah Kay Marcus, Senior Attorney, U.S. Department of Labor, Washington, D.C., filed a brief for Amicus Curiae.
    Before TYMKOVICH, Chief Judge, BACHARACH and MORITZ, Circuit Judges.
   MORITZ, Circuit Judge.

In dismissing Aarica Romero’s minimum-wage claim under Fed. R: Civ. P. 12(b)(6), the district court relied on a sin-' gle, undisputed fact: Romero has never alleged that she earned less than the federal minimum wage of $7.25 an hour — at least after taking into account both (1) the cash wage that her employer paid her and (2) all of the tips that she received each week.

But an employer doesn't comply with its federal minimum-wage obligations just because its employees receive at least $7.25 an hour in tips. Instead, an employer eom-plies with its minimum-wage obligations if it “pay[s]” its employees at least $7.25 an hour in “wages.” 29 U.S.C. § 206(a)(1)(C). And while an employer can treat tips as wages under certain circumstances, see id. § 203(m), Romero asserts that her employer impermissibly did so here.

The district court declined to address this argument. But without first resolving whether Romero’s employer was entitled to treat her tips as wages under § 203(m), the district court couldn’t have determined whether that employer “pa[id]” Romero “wages” of at least $7.25 an hour under § 206(a)(1)(C). Accordingly, we reverse and remand to the district court to make this threshold determination in the first instance.

Background

Romero worked as a server for defendant Top-Tier Colorado LLC (Top-Tier) at one of its restaurants. Rather than directly paying Romero the federal minimum wage of $7.25 an hour, see § 206(a)(1)(C), the defendants instead took advantage of what’s known colloquially as the “tip credit”: they paid Romero a “cash wage” of $4.98 an hour and then used some of the tips that Romero received to cover the gap between that cash wage and the federal minimum wage, see Fast v. Applebee’s Int’l, Inc., 638 F.3d 872, 876 (8th Cir. 2011) (explaining that tip credit “allows the employer to avoid a larger cash payment to the employee as long as the employee’s tips make up the difference between $2.13 per hour and the current minimum wage”) (citing § 203(m)).

But the tip credit only applies to “tipped employee[s].” § 203(m). And during some of the hour’s she worked, Romero performed what she describes as “non-tipped” tasks, e.g.,

brewing tea, brewing coffee, rolling silverware, cleaning soft drink dispensers, wiping down tables, setting tables, busing tables, cutting and stocking fruit, stocking ice, taking out trash, scrubbing walls, sweeping floors, restocking to-go supplies, cleaning booths, cleaning ramekins, sweeping, mopping, restocking all stations, washing dishes, and breaking down and cleaning the expo line.

App. 9.

Reasoning that she wasn’t a “tipped employee” under § 203(m) for at least some of the hours she spent performing these tasks, Romero asserts that the defendants should .have paid her a cash wage of at least $7.25 an hour — rather than a cash wage of $4.98 an hour — for those hours. And because they failed to do so, Romero alleges, they violated § 206(a)(1)(C).

More specifically, Romero divides the non-tipped tasks she performed into two categories: “related” tasks and “unrelated” ones. App. 9. She alleges that the defendants weren’t entitled to take the tip credit for any of the hours she spent performing unrelated non-tipped tasks — a rule that she derives primarily from 29 C.F.R. § 531.56(e). And she alleges that the 'defendants weren’t entitled to take the tip credit for those hours “in excess of [20 percent] of her regular workweek” that she spent performing related non-tipped tasks — a rule that she derives primarily from § 30d00(e) of applicable version of the Department of Labor’s' Field Operations Handbook. App. 10.

The defendants moved to dismiss Romero’s complaint under Rule 12(b)(6). In relevant part, they argued that Romero’s complaint doesn’t state a claim under § 206(a) because it doesn’t “allege that she failed to receive the minimum wage when including [all] the tips she received as a server.” App. 18. Relying on United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487 (2d Cir. 1960), the district court agreed.

In Klinghoffer, the Second Circuit held that an employer complies with § 206(a) “so long as the total weekly wage paid by an employer meets the minimum weekly requirements of the statute, such minimum weekly requirement being equal to the number of hours actually worked that week multiplied by the minimum hourly statutory requirement.” 285 F.2d at 490. Thus, the district court reasoned, “whether [an employee] is able to state [a] minimum wage violation depends on [the employee’s] total pay earned for the workweek divided by the total number of hours worked in that same week.” App. 77. And as the district court noted, Romero’s complaint doesn’t allege that, after (1) ádding up her cash wages and all the tips she received in any given week and (2) dividing that amount by the number of hours she worked, she didn’t “earn[]” at least “the minimum wage every week she worked at the restaurant.” Id. at 79. Accordingly, the district court dismissed Romero’s complaint for failure to state a claim. Romero appeals.

Discussion

The Fair Labor Standards Act (FLSA) of 1938 requires employers to “pay [their] employees ... wages [of] ... not less than ... $7.25 an hour.” § 206(a)(1)(C). But when it comes to “tipped employee[s],” an employer can take advantage of the FLSA’s tip-credit provision: it can pay those employees a cash wage of as little as $2.13 an hour, and then use a portion of the employees’ tips to make up the difference between that hourly cash wage and the federal minimum wage. Id. § 203(m); Fast, 638 F.3d at 876.

Yet § 203(m)’s tip-credit provision is not without its limits. As Romero points out, the Department of Labor (DOL) has “recognize[d] that an employee may hold more than one job for the same employer, one which generates tips and one which does not, and that the employee is entitled to the full minimum wage rate while performing the job that does not generate tips.” Fast, 638 F.3d at 875 (citing 29 C.F.R. § 531.56(e)). Moreover, § 30d00(e) of the applicable version of the DOL’s Field Operations Handbook (FOH) “provides that if a tipped employee spends a substantial amount of time (defined as more than 20 percent) performing related but nontipped work, ... then the employer may not take the tip credit for the amount of time the employee spends performing those duties.” Id.

Romero alleges that the defendants employed her in two occupations: one that generated tips and one that didn’t. She also alleges that she spent more than 20 percent of her workweek performing “related but nontipped work.” Id. Thus, citing 29 C.F.R. § 531.56(e) and § 30d00(e) of the applicable version of the FOH, she concludes that the defendants weren’t entitled to take the tip credit for (1) those hours she spent “performing the job that [didn’t] generate tips” and (2) those hours she spent “performing related but non-tipped work.” Id. Instead, she insists, she was “entitled ... to the overall minimum wage” for those hours. App. 11.

But the district court explicitly declined to address either of these arguments. Instead, the court adopted the defendants’ alternate theory: that Romero’s claim fails as a matter of law because she doesn’t allege “she was ... paid less than the federal minimum wage of $7.25 an hour when including [all] her tips and counting all her hours worked in any one workweek.” Id. at 76.

Citing Klinghoffer, the district court concluded that “whether [a plaintiff] is able to state an FLSA minimum wage violation depends on her total pay earned for the workweek divided by the total number of hours worked in that same week.” Id. at 77. See Klinghoffer, 285 F.2d at 490 (explaining that employer satisfies § 206(a) as long as “total wage paid to [employee] during any given week,” when “divided by the total time [employee] worked that week,” yields a “resulting average hourly wage” that meets or exceeds federal minimum). And because Romero doesn’t dispute that she “earn[ed] more than the minimum wage every week she worked at the restaurant,” the district court dismissed her claim. App. 79.

On appeal, Romero argues that the court’s reliance on Klinghoffer is misplaced. Reviewing the district court’s decision to dismiss de novo, see Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006), we agree.

The district court’s Klinghoffer analysis conflates two distinct concepts: (1) the tips that Romero “earn[ed],” see App. 79, and (2) the “wages” that the defendants “pa[id],” see § 206(a). True, the former is relevant to the minimum-wage inquiry to the extent that § 203(m) allows an employer to “us[e]” some of an employee’s tips as wages. Trejo v. Ryman Hosp. Props., Inc., 795 F.3d 442, 447 (4th Cir. 2015). But only the latter is actually dispositive of such a claim. See § 206(a)(1)(C) (requiring “[e]very employer [to] pay [its] employees ... wages [of] ... not less than ... $7.25 an hour” (emphases added)).

And this distinction between tips earned and wages paid simply wasn’t at issue in Klinghojfer; there, the plaintiff never disputed that every cent the employees earned for the work they performed constituted “wages” their employers “pa[id]” them for purposes of § 206(a). 285 F.2d at 490. Moreover, as Romero points out, this issue couldn’t have arisen in Klinghojfer; the Second Circuit decided that case years before Congress amended the FLSA to include § 203(m)’s tip-credit provision. See Or. Rest. & Lodging Ass’n v. Perez, 816 F.3d 1080, 1083 (9th Cir. 2016).

Here, on the other hand, the entire upshot of Romero’s argument is that the defendants impermissibly treated a portion of her tips as “wages” for purposes of § 206(a) by taking § 203(m)’s tip credit for hours that, according to Romero, weren’t tip-credit eligible under 29 C.F.R. § 531.56(e) and § 30d00(e) of the applicable FOH.

In other words, we can assume that the district court correctly derived from Kling-hojfer the general rule that an employer satisfies § 206(a) so long as, after “the total wage paid to each [employee] during any given week is divided by the total time [that employee] worked that week, the resulting average hourly wage” meets or exceeds $7.25 an hour. 285 F.2d at 490. But even then, the district court couldn’t apply that general rule to Romero’s claim without first determining what “total wage” the defendants actually “paid” her. Id. And the district court couldn’t make that determination without evaluating whether, as Romero alleges, the defendants took § 203(m)’s tip credit for hours that weren’t tip-credit eligible. Cf. Fast, 638 F.3d at 874-75, 876-81 (acknowledging that parties agreed “the plaintiffs received in employer cash payments and tips a sum at least equal to the required minimum wage per hour for all hours worked,” but nevertheless proceeding to analyze effect of 29 C.F.R. § 531.56(e) and § 30d00(e) of applicable FOH on plaintiffs’ minimum-wage claim).

The defendants suggest that by drawing a line between what an employer pays in wages and what an employee receives in tips, we miss the forest for the trees. After all, the purpose of the FLSA is to ensure that every covered worker receives “[a] fair day’s pay for a fair day’s work.” Barrentine v. Ark.-Best Freight Sys., Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981) (quoting Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 578, 62 S.Ct. 1216, 86 L.Ed. 1682 (1942)). And according to the defendants, that “purpose is filled” when “an employee like Romero receives pay ... above the minimum wage,” Aplee. Br. 14, even if that pay happens to take the form of tips rather than wages. So even assuming they wrongfully took the tip credit for one or more hours, the defendants insist, Romero’s complaint still doesn’t state a claim under § 206(a).

But if the defendants’ interpretation of § 206(a) is correct, then an employer can pay a tipped employee nothing at all, so long as that employee’s weekly tips — when divided by the number of hours he or she worked — average at least $7.25 an hour. We find this reading of § 206(a) impossible to square with § 203(m)’s plain language: the latter explicitly requires employers to pay their tipped employees something, regardless of how much those employees receive in tips. See § 203(m)(l) (“[T]he cash wage paid such employee ... shall be not less than [$2.13 an hour.]”); see also Schaefer v. Walker Bros. Enters., 829 F.3d 551, 553 (7th Cir. 2016) (noting that FLSA “require[s] some cash payment from the employer ... no matter how much a worker receives in tips”); cf. Doty v. Elias, 733 F.2d 720, 722, 724 (10th Cir. 1984) (rejecting, under, previous version of § 203(m), defendant’s argument that “an employer who allows employees to keep their tips complies with [§ 206(a)] so long as the employees make at least as much in tips as they would if they received only the minimum hourly wage”; such interpretation would “do[] violence to the language of § 203(m) and ... render much of that section superfluous”).

Accordingly, we reject the defendants’ argument — and the district court’s conclusion — that “if [a] tipped employee makes enough [in tips] to meet the minimum wage,” then the employer has necessarily complied with § 206(a). App. 79. Instead, we hold that to the extent an employee’s tips are relevant in determining whether an employer has satisfied its minimum-wage obligations under § 206(a), the threshold question is whether the employer can treat those tips as wages under § 203(m). And because the district court declined to answer that threshold question here, we reverse and remand to give the district court an opportunity to do so in the first instance. See Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1238 (10th Cir. 2005) (“Where an issue has been raised, but not ruled on, proper judicial administration generally favors remand for the district court to examine the issue initially.”); see also Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1181 (10th Cir. 2010) (“Because the district court wrongly concluded that [defendants] were not subordinate economic entities entitled to tribal sovereign immunity, and consequently did not reach the issue of whether [defendants] waived their immunity from suit ..., we remand for the district court to address that question in the first instance.”).

      . During the relevant time period, defendant Richard Warwick managed the restaurant where Romero worked. We refer to Top-Tier and Warwick collectively as "the defendants.”

      . We take the bulk of these facts from Rome- ' ro’s complaint. See Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) ("A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual allegations are true and construes them in the light most favorable to the plaintiff.”). The complaint doesn’t allege the precise cash wage the defendants paid Romero; instead, it asserts only that they paid her "the reduced tip[-]credit rate.” App. 11. But the defendants admit in their opening brief that they paid Romero a cash wage of $4.98 an hour.

      . Both Romero and the defendants treat the 1988 version of the FOH as the applicable version. See also Fast, 638 F.3d at 877-78 (relying on 1988 version of FOH).


source: Caselaw Access Project

author: TYMKOVICH, Chief Judge.

license: Public Domain

text:
    Paris LaPriest POWELL, Plaintiff-Appellee, v. Robert Bradley MILLER, Defendant-Appellant.
    No. 16-6026
    United States Court of Appeals, Tenth Circuit.
    FILED March 7, 2017

      Murray E. Abowitz, Doerner Saunders Daniel & Anderson, LLP, Oklahoma City, Oklahoma; Kayce L. Gisinger, Phillips Murrah P.C., Oklahoma City, Oklahomá; and Richard N. Mann, Assistant Attorney General, Oklahoma Attorney General’s Office, Litigation Section, Oklahoma City, Oklahoma, for Defendant-Appellant.
    Mark Barrett, Norman, Oklahoma, for Plaintiff-Appellee.
    Before TYMKOVICH, Chief Judge, HARTZ and PHILLIPS, Circuit Judges.
   TYMKOVICH, Chief Judge.

After his release from death row, Paris LaPriest Powell sued the prosecutor responsible for his overturned conviction, Robert Bradley Miller. Powell charged that Miller had suborned perjury from a key witness at his trial, Derrick Smith; had hidden from the defense evidence of Miller’s agreement to help Smith with his own criminal charges; and had failed to disclose the efforts Miller made on Smith’s behalf with regard to those charges. Miller filed a motion to dismiss. The district court granted the motion in part, but denied qualified immunity on certain claims. Miller did not appeal the ruling. Years later, Miller filed a motion to reconsider the denial of qualified immunity. The district court denied that motion as well. Miller now appeals from the. denial of his motion to reconsider.

Because we lack appellate jurisdiction over the district court’s order denying Miller’s motion to reconsider, we dismiss Miller’s appeal.

A summary of the procedural posture of the case provides context. In 2010, Powell filed this 42 U.S.C. § 1983 action against Miller and other defendants, alleging the defendants violated his constitutional rights in connection with Powell’s 1997 murder conviction. In this case and a companion case involving Powell’s co-defendant, Yancey Lyndell Douglas, Miller moved to dismiss the claims asserted against him in his individual capacity based on various defenses, including qualified immunity. The district court . denied Miller’s qualified immunity defense as to “Miller’s post-trial actions in which he did not act as an advocate for the State and was no longer employed as a prosecutor, including his alleged wrongful efforts on behalf of Derrick Smith.” App. Vol. 2 at 413.

Nearly three years later, on October 26, 2015, Miller filed his “Motion for Rehearing of Defendant Robert Bradley Miller in His Individual Capacity and Brief in Support.” App. Vol. 5 at 1206. In the motion, Miller sought reconsideration of the district court’s prior order denying him qualified immunity. The district court denied Miller’s motion because he had “presented no substantive basis for the Court to change its opinion.” Id. at 1227-28: Miller now appeals the district court’s order denying his motion to reconsider.

It is well established that a district court’s pretrial denial of a qualified immunity defense, to the extent it turns on an issue of law, is an appealable “final decision” within the meaning of 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). But Miller does not appeal from the district court’s order denying his qualified immunity defense — that decision was issued in 2013 without appeal. Rather, Miller appeals from the district court’s order denying reconsideration of that ruling almost three years later. Under these circumstances, we lack jurisdiction to consider the district court’s order denying Miller’s motion to’ reconsider.

Mitchell does not apply here. In Mitchell, the Supreme Court held that a decision denying qualified immunity, to the extent it turns on an issue of law, “falls within ‘that small class [of decisions] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.’ ” Id. at 524-25, 105 S.Ct. 2806 (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). The Court reasoned that interlocutory orders denying qualified immunity satisfy the three Cohen criteria for immediate appeal because they (1) conclusively determine the disputed question; (2) resolve an important issue separate and collateral to the merits of the underlying action; and (3) are effectively unreviewable from a final judgment. Id. at 525-30, 105 S.Ct. 2806.

An order denying reconsideration of the denial of qualified immunity does not, however, by itself satisfy the elements of the collateral order doctrine. As the Second Circuit explained in Lora v. O’Heaney, 602 F.3d 106 (2d Cir. 2010):

Unlike the substantive ruling on qualified immunity, the determination by the district court whether to reconsider that ruling does not raise important issues of the type allowing interlocutory appeal. The legal question before us on appeal from an order denying reconsideration is whether the district court abused its discretion when denying reconsideration .... Denial of reconsideration does not resolve an important issue, but merely resolves whether to revisit an important issue.

Id. at 111-12.

Accordingly, Miller cannot use his motion for reconsideration, filed almost three years after the fact, to resurrect his right to appeal the district court’s order denying him qualified immunity. And Miller has failed to make any showing that the order denying his motion to reconsider is otherwise immediately appealable. We note, however, that our conclusion does not affect Miller’s right to timely appeal an order denying summary judgment on the defense of qualified immunity. See Behrens v. Pelletier, 516 U.S. 299, 307, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (“Thus, Mitchell clearly establishes that an order rejecting the defense of qualified immunity at either the dismissal stage or the summary judgment stage is a ‘final’ judgment subject to immediate appeal.”); see also Weise v. Casper, 507 F.3d 1260, 1265 (10th Cir. 2007).

Based on the foregoing, we DISMISS Miller’s appeal because we lack jurisdiction. Appellant’s motion to supplement the appendix is DENIED.

      . We recently encountered a factual situation similar to that in this case: the unappealed denial of qualified immunity, followed by a later purported appeal from the denial of reconsideration. Williams v. Akers, 837 F.3d 1075 (10th Cir. 2016). In Williams, we dismissed the appeal because the appellants' notice of appeal was untimely to appeal the underlying denial of qualified immunity, and they had failed to designate the reconsideration order they belatedly claimed they were appealing from. See id. at 1078-80. Due to that jurisdictional defect, we did not have occasion to discuss the issue here: whether an interlocutory denial of reconsideration was even immediately appealable. Of relevance to this case, however, we emphasized the role of the appellants’ appeal from a particular order, rather than from a particular issue. See id. at 1079.

      . Other courts agree that such orders are not immediately appealable. See, e.g., Phillips v. Montgomery Cty., 24 F.3d 736, 738 (5th Cir. 1994) ("[W]e hold that the defendants in this case cannot fail to appeal and then restart the appellate clock by refiling substantially the same motion.”); Taylor v. Carter, 960 F.2d 763, 764 (8th Cir. 1992) (dismissing appeal for lack of jurisdiction); Fisichelli v. City Known as Town of Methuen, 884 F.2d 17 (1st Cir. 1989) (reasoning that if courts were required to consider appeals whenever a defendant unsuccessfully asked for reconsideration, "a dilatory defendant would receive not only his allotted bite at the apple, but an invitation to gnaw at will.”). Cf. Sinclair v. Schriber, 834 F.2d 103, 105 (6th Cir. 1987) ("[While] Mitchell v. Forsyth has permitted two bites of the appellate apple, at the pleading [stage] and at the discovery stage, it did not contemplate that the underlying finality requirement of Cohen and of section 1291 would be ignored. ...”).


author: MATHESON, Circuit Judge.

text:
    Roger GARLING; Sheryl Garling; R and D Enterprises, Inc., Plaintiffs-Appellants, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee.
    No. 16-8028
    United States Court of Appeals, Tenth Circuit.
    Filed March 7, 2017

      Christopher S. Pugsley (Anthony J. Thompson, ' with him on the briefs), Thompson & Pugsley, Washington, D.C., appearing for Appellants.
    C. Levi Martin, Assistant United States Attorney (Christopher A. Crofts, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Wyoming, Cheyenne, Wyoming, appearing for Appellee.
    Before MATHESON, McKAY, and MORITZ, Circuit Judges.
   MATHESON, Circuit Judge.

Roger Garling, Sheryl Garling, and their business, R and D Enterprises, Inc., (collectively, “the Garlings”) sued the United States for damages arising from an Environmental Protection Agency (“EPA”) raid and investigation of their laboratory. The district court held the Garlings’ action time-barred under the Federal Tort Claims Act (“FTCA”). The Garlings appeal, arguing the EPA’s conduct was a continuing tort or, alternatively, that they were entitled to equitable tolling.

Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that sovereign immunity barred the Garlings’ claims and the district court thus lacked subject matter jurisdiction. We therefore reverse the district court’s judgment and remand with directions to dismiss this action for lack of jurisdiction.

I. BACKGROUND

In reviewing a district court’s dismissal under Rule 12(b)(1) or 12(b)(6), “[w]e accept as true all well-pleaded factual allegations in the complaint and view them in the light most favorable to the [plaintiff].” SEC v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (quotations omitted) (Rule 12(b)(6)); see Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002), (Rule 12(b)(1)). We therefore recite the facts as alleged in the Garlings’ Second Amended Complaint, the operative complaint here.

A. Factual Background

Roger and Sheryl Garling owned and operated the Casper, Wyoming branch of Energy Laboratories, Inc. (“ELI”), a commercial laboratory business. The EPA initiated an investigation after an ELI employee told the EPA that ELI was submitting false water quality reports. On October 30, 2007, agents from the EPA’s Criminal Investigation Division (“EPA-CID”) and other federal officers executed an armed raid of the ELI facilities pursuant to a search warrant.

On February 25, 2008, as a result of the raid, ELI forced the Garlings to resign. In February 2009, the Garlings met with Jack Rychecky, the EPA officer in charge of implementing the Safe Drinking Water Act (“SDWA”) program in the region covering Wyoming. He informed them that he had advised EPA-CID, based on his belief that the agency lacked a sufficient factual basis, against conducting the raid. In September 2009, Assistant U.S. Attorney (“AUSA”) James Anderson confirmed to the Garlings’ attorney that they were the targets of the EPA’s investigation.

From June 2011 to March 2013, the Garlings filed several Freedom of Information Act (“FOIA”) requests with the EPA about the investigation. The EPA terminated its investigation on October 18, 2012, without filing charges.

B. Procedural History

On May 12, 2013, the Garlings filed an FTCA administrative claim with the EPA seeking damages “due to EPA’s 2007 raid and subsequent investigation.” Aplt. App. at 18. The EPA denied the claim. The Garlings requested reconsideration, which the EPA denied.

On March 9, 2015, the Garlings filed an FTCA action in the United States District Court for the District of Wyoming. Their Second Amended Complaint alleged injuries as a result of “EPA officials’ reckless and grossly negligent conduct.” Id. at 8. The Garlings attempted to assert seven claims: (1) “reckless and/or gross negligence in the form of criminal investigation” (“tortious investigation”), (2) false imprisonment, (3) false arrest, (4) abuse of process, (5) defamation, (6) intentional infliction of emotional distress, and (7) conspiracy. Id. at 23.

The United States moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing the Garlings failed to meet the FTCA’s two-year statute of limitations to file their administrative claim. See 28 U.S.C. § 2401(b). It also moved to dismiss the tortious investigation and defamation claims under Rule 12(b)(1) for lack of subject matter jurisdiction because the FTCA does not waive the United States’ sovereign immunity for those claims.

The district court dismissed the Gar-lings’ entire FTCA action as time-barred. It determined the Garlings’ claims accrued on the date of the EPA’s armed raid (October 30, 2007) or, at the latest, the date their ELI employment ended (February 25, 2008) — more than five years before they filed their administrative claim. The court did not address subject matter jurisdiction. The Garlings now appeal.

II. JURISDICTION

The district court’s ruling that the Garlings’ claims were time-barred was a non-jurisdictional basis for dismissal. See United States v. Kwai Fun Wong, — U.S. -, 135 S.Ct. 1625, 1638, 191 L.Ed.2d 533 (2015) (holding “the FTCA’s time bars are nonjurisdictional”). To reach the issue of timeliness, however, the district court needed to have had subject matter jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“Without jurisdiction the court cannot proceed at all in any cause.” (quotations omitted)). Thus, although the Garlings do not address this issue on appeal, we must first consider whether the district court had subject matter jurisdiction over their claims. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) (providing that federal appellate courts have an independent obligation to examine subject matter jurisdiction).

Because we resolve this issue based on the complaint, we must accept its factual allegations as true, see Ruiz, 299 F.3d at 1180, but not its legal conclusions, see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Mere “labels and conclusions” do not count. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

A. FTCA Waiver of Sovereign Immunity and Exceptions to Waiver

Sovereign immunity precludes federal court jurisdiction. FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). “[T]he United States can be sued only to the extent that it has waived its immunity.” United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976); see United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.”); Aviles v. Lutz, 887 F.2d 1046, 1048 (10th Cir. 1989) (stating that, where Congress had not authorized suit under the FTCA, the district court was “without subject matter jurisdiction”).

Through 28 U.S.C. § 1346(b)(1), the FTCA waives sovereign immunity for certain state law tort claims against the United States. This provision is subject to 28 U.S.C. § 2680(h), which lists exceptions to waiver for various intentional torts. But § 2680(h) also includes language that restores waiver for some of those torts. The ensuing overview attempts to make this clearer. We then apply this framework to this case.

1. Waiver of Sovereign Immunity— § 1346(b)(1)

The FTCA “is a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment.” Orleans, 425 U.S. at 814, 96 S.Ct. 1971. Subject to the exceptions listed in § 2680, the FTCA permits:

civil actions on claims against the United States, for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States,, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1). “State substantive law applies to suits brought against the United States, under the FTCA.” Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1117 (10th Cir. 2004).

2. Exceptions to Waiver — § 2680

Title 28 U.S.C. § 2680 lists exceptions to the FTCA’s waiver of sovereign immunity. Id. § 2680(a)-(n). When an exception applies, sovereign immunity remains, and federal courts lack jurisdiction. Aviles, 887 F.2d at 1048; see Franklin v. United States, 992 F.2d 1492, 1495 (10th Cir. 1993) (stating that whether the FTCA exception in § 2680(h) applies was a “question of subject matter jurisdiction”); see also Milligan v. United States, 670 F.3d 686, 692 (6th Cir. 2012) (“Because the FTCA is a jurisdictional statute, if a case falls within the statutory exceptions of 28 U.S.C. § 2680, the court lacks subject matter jurisdiction....” (brackets and quotations omitted)); Hydrogen Tech. Corp. v. United States, 831 F.2d 1155, 1161 (1st Cir. 1987) (“[Bjecause 28 U.S.C. § 1346(b) provides that federal courts shall have jurisdiction over FTCA claims ‘subject to’ ... section 2680 [and] the exceptions found in that section define the limits of federal subject matter jurisdiction in this area.”).

Two of the § 2680 exceptions are relevant here: (1) claims involving discretionary functions, § 2680(a), and' (2) claims involving intentional torts, including defamation, § 2680(h).

a. Discretionary function exception— § 2680(a)

Under § 2680(a), the United States is not hable for:

Any claim ...' based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

28 U.S.C. § 2680(a).

This discretionary function exception “marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” United States v. S.A. Empresa de Viacao Aerea Rio. Grandense, 467 U.S. 797, 808, 104 S.Ct. 2766, 81 L.Ed.2d 660 (1984).

Whether the exception applies depends on the nature of the agency’s conduct. See United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). To determine whether agency conduct falls within the exception, we apply a two-part test. See Garcia v. U.S. Air Force, 533 F.3d 1170, 1176 (10th Cir. 2008) (citing Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)). First, we determine whether the conduct was discretionary — whether it was “a matter of judgment or choice for the acting employee.” Id. (quotations omitted). “Conduct is not discretionary if a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive.” Id. (quotations omitted). Second, if the conduct was discretionary, we consider whether it required the “exercise of judgment based on considerations of public policy.” Id. If both elements are met, the governmental conduct is protected as a discretionary function, and sovereign immunity bars a claim that involves such conduct. Id.

b. Intentional tort exception— § 2680(h)

Sections 2680(b)-(n) list claims that are excluded from FTCA’s waiver of sovereign immunity in § 1346(b)(1). The first clause of § 2680(h) excludes:

Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rightsf.]

28 U.S.C. § 2680(h). This provision is known as the “intentional tort exception.” Millbrook v. United States, U.S. -, 133 S.Ct. 1441, 1442, 185 L.Ed.2d 531 (2013).

i. Exceptions to the intentional tort exception

Although § 2680(h)’s first clause preserves sovereign immunity for eleven enumerated torts, its second clause waives sovereign immunity for six of those torts when they arise from the “acts or omissions” of federal “law enforcement officers.” See 28 U.S.C. § 2680(h). This clause states:

Provided, [t]hat, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.

As the Supreme Court explained, Congress carved out an exception to § 2680(h)’s preservation of the United States’ sovereign immunity for intentional torts “by adding a proviso covering claims that arise out of the wrongful conduct of law enforcement officers.” Millbrook, 133 S.Ct. at 1443. “Known as the ‘law enforcement proviso,’ this provision extends the waiver of sovereign immunity to claims for six intentional torts” — assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution. Id.

B. Analysis

Sovereign immunity bars all of the Gar-lings’ seven claims and precludes federal court jurisdiction. First, the discretionary function exception in § 2680(a) bars the tortious investigation, intentional infliction, false arrest, false imprisonment, and abuse of process claims. Second, the intentional tort exception in § 2680(h) precludes the defamation claim. Third, § 1346(b)(1) does not waive sovereign immunity for the conspiracy claim because it would not be recognized under Wyoming law.

1. Discretionary Function Exception

The discretionary function exception under § 2680(a) bars the Garlings’ claims for tortious investigation, intentional infliction, false arrest, false imprisonment, and abuse of process.

a. Tortious investigation

Applying part one of the test described above to the tortious investigation claim, we conclude the EPA’s conduct was discretionary. If a “federal statute, regulation, or policy [had] specifically prescribe[d] a course of action” for EPA-CID employees to follow in conducting their SDWA investigation, the employees may have had “no rightful option but to adhere to the directive.” See Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. If there were “no discretion in the conduct for the discretionary function exception to protect,” the EPA-CID employees’ conduct here could possibly have opened the United States to an FTCA suit. See id. But that was not the case here.

Congress delegated broad authority to the EPA to implement and enforce the SDWA. See 42 U.S.G. §§ 300f, 300g-2, 300g — 3; 18 U.S.C. § 3063 (granting EPA officers law enforcement authority for the investigation of criminal violations); Hydro Res., Inc. v. EPA, 608 F.3d 1131, 1166 (10th Cir. 2010) (noting the EPA’s “considerable discretion under the SDWA”). We have not found statutes, regulations, or policies prescribing a specific course of action for EPA employees to follow in investigating potential SDWA violations that would foreclose the discretionary function exception and permit the Gar-lings’ tortious investigation claim.

The second part of the discretionary function test is satisfied because the EPA’s investigation required the exercise of judgment based on public policy considerations, such as ensuring safe drinking water.

The Garlings raised two arguments in district court attempting to show the tor-tious investigation claim falls outside the discretionary function exception. Both lack merit.

First, the Garlings argued a 1994 memorandum written by Earl E. Deva-ney, Director of the EPA Office of Criminal Enforcement, (the “Devaney Memo”) removed the EPA’s conduct from the protections of the discretionary function exception. In fact, it does the opposite. The Devaney Memo, titled “The Exercise of Investigative Discretion,” discusses the EPA’s significant discretion in identifying misconduct worthy of investigation and pursuing potential wrongdoers. See Aplt. App. at 110, 112. The Memo does not issue a specific directive that EPA employees must follow. Instead, it acknowledges the EPA’s “full range of enforcement tools,” id. at 115, and offers general recommendations on allocating EPA resources to focus on the most serious offenders, see id. at 112 (identifying “significant environmental harm and culpable conduct” as important factors in EPA’s discretionary case selection).

Second, the Garlings contended in district court that the EPA lacked discretion because the agency had delegated primary SDWA enforcement authority to Wyoming. But they provided' no source for this contention, and EPA regulations published on October 10, 2007, just before the EPA’s raid here, say the opposite: “EPA has [SDWA] primacy [in] .... Wyoming.” See National Primary Drinking Water Regulations for Lead and Copper, 72 Fed. Reg. 57,782-01, 57,797 (Oct. 10, 2007) (parenthesis omitted). The websites for the EPA and the Wyoming Department of Environmental Quality (“DEQ”) also state that the EPA — not Wyoming — has primary SDWA enforcement authority. And the Garlings cited nothing in support of their argument that agency policy requires that “the EPA, states, and local agencies work closely together” to share information and conduct investigations. See Aplt. App. at 20-21. Even if the Garlings’ contentions were correct, they still have not shown how the EPA’s discretion in conducting SDWA investigations is so limited as to bar application of the discretionary function exception.

The Garlings’ tortious investigation claim thus falls within the discretionary function exception to the FTCA. The district court lacked jurisdiction to consider this claim because the United States has not waived sovereign immunity.

b. Intentional infliction

The Garlings’ intentional infliction claim also falls under the discretionary function exception because it stems from the same conduct as the tortious investigation claim' — the EPA’s raid and investigation. See Sydnes v. United States, 523 F.3d 1179 (10th Cir. 2008) (holding intentional infliction claim barred under discretionary function exception when the conduct giving rise to the claim was discretionary). The district court therefore lacked jurisdiction over this claim.

c. False arrest, false imprisonment, and abuse of process

The district court also lacked jurisdiction over the Gariings’ claims for false arrest, false imprisonment, and abuse of process. As discussed above, § 2680(h) at first excludes these claims from § 1346(b)(l)’s waiver but then the law enforcement proviso in § 2680(h) waives sovereign immunity for these claims when they arise from alleged misconduct by federal law enforcement.

In determining whether the Gar-lings’ claims fall within the law enforcement proviso, we look to the substance of their claims and not how they labeled them in their complaint. The' Sixth Circuit put it well: a plaintiff may not “recast a negligence tort as an intentional tort to take advantage of the law enforcement exception to § 2680(h).” Milligan, 670 F.3d at 696; see also Lambertson v. United States, 528 F.2d 441, 443 (2d Cir. 1976) (“In determining the applicability of the [§ ] 2680(h) exception, a court must look, not to the theory upon which the plaintiff elects to proceed, but rather to the substance of the claim which he asserts.”); Johnson v. United States, 547 F.2d 688, 691-92 (D.C. Cir. 1976) (“[S]urely a litigant cannot circumvent the [FTCA] by the simple expedient of drafting in terms of negligence a complaint that in reality is a claim as to which the United States remains immunized.”).

The Gariings’ complaint attempts to bring intentional tort claims without- alleging intentional tort facts. As to the false arrest claim, the complaint never alleges the Gariings were arrested. Similarly, as to the false imprisonment claim, it never alleges the Gariings were detained. Finally, the complaint never alleges facts showing that EPA had the required “ulterior purpose” for an abuse of process claim in Wyoming. See Bosler v. Shuck, 714 P.2d 1231, 1234 (Wyo. 1986). Indeed, the complaint conflates abuse of process with its tortious investigation claim. See, e.g., Aplt. App. at 8 (complaint alleging that “EPA officials acted with reckless and grossly negligent disregard when conducting the armed raid and, but for this abuse of process, the plaintiffs” would not have been injured).

These three claims stem from the EPA’s raid and investigation, and the facts alleged at most amount to negligence or recklessness. As discussed above, the discretionary function exception precludes the claim for negligent or reckless investigation. The Gariings attempt to ascribe the labels of “false arrest,” “false imprisonment,” and “abuse of process” to these allegations to fit the law enforcement proviso in § 2680(h). But considering, as we must, the substance of the allegations and not the labels, we conclude the district court lacked jurisdiction over these claims.

2. Defamation

The district court lacked jurisdiction over the Gariings’ defamation claim because § 2680(h) excludes “libel” and “slander” from the FTCA’s waiver of sovereign immunity. See 28 U.S.C. § 2680(h); Aviles, 887 F.2d at 1047-48. Defamation claims are the “equivalent” of “libel” and “slander” and thus exempt from the waiver of sovereign immunity under the intentional tort exception. Cooper v. Am. Auto. Ins. Co., 978 F.2d 602, 613 (10th Cir. 1992).

3. Conspiracy

Finally, as to the Garlings’ conspiracy claim, an FTCA claim must be recognized as a tort under the “law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1); see Hill, 393 F.3d at 1117. The Wyoming Supreme Court has recognized tort claims for conspiracy provided there is an underlying cause of action in tort. See White v. Shane Edeburn Constr., LLC, 285 P.3d 949, 958 (Wyo. 2012). Because the Garlings have no underlying causes of action remaining that overcome sovereign immunity, the FTCA does not waive sovereign immunity for their conspiracy claim because it would fail under Wyoming law.

III. CONCLUSION

We reverse the district court’s judgment and remand with directions to dismiss this action for lack of jurisdiction.

      . Roger and Sheryl Garling own R and D Enterprises, Inc., which owned the properties ELI leased for its Casper, Wyoming business operations.

      . Although the EPA’s denial cited the Gar-lings’ "fail[ure] to state a claim ... for which relief is available,” see Aplt. App. at 18, an agency is not required to state a reason for denying an FTCA administrative claim, see 28 C.F.R. § 14.9(a) (stating the notice of denial “may include a statement of the reasons for the denial”).

      . Iqbal and Twombly addressed how a complaint should be analyzed in response to a Rule 12(b)(6) motion to dismiss for failure to state a claim, rather than a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. We agree with the Fourth Circuit, which said that "when a defendant asserts that the [FTCA] complaint fails to allege sufficient facts to support subject matter jurisdiction, the trial court must apply a standard patterned on Rule 12(b)(6) and assume the truthfulness of the facts alleged.” Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009).

      . The EPA website states, “Wyoming is the only State that has not applied to the [EPA] for authority to administer the public water supply program,” and thus EPA Region 8 "directly implements the [SDWA] ” in the state, including "[[laboratory certification” and "[fjormal enforcement.” EPA Region 8 Drinking Water Program, Wyoming Drinking Water Program, EPA, https://perma.cc/L7HG-UYBZ (last visited Feb. 24, 2017). Wyoming’s DEQ website states, "EPA Region 8 has primary enforcement authority ... for all [SDWA] regulatory programs,” except for several programs not relevant here. Wyo. Dep’t of Envtl. Quality, What is Primacy?, DEQ, https://perma.cc/73YH-ZT6Z (last visited Feb. 24, 2017).
      These sources permit judicial notice of the EPA’s primary SDWA enforcement authority in Wyoming. See Fed. R. Evid. 201(b); New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 702 & n.22 (10th Cir. 2009) (taking judicial notice of facts on government websites and observing, "It is not uncommon for courts to take judicial notice of factual information found on the world wide web” (quotations omitted)); see also United States v. Windsor, - U.S. -, 133 S.Ct. 2675, 2690, 186 L.Ed.2d 808 (2013.) (citing state government website for results of citizens’ initiatives concerning same-sex marriage); Denius v. Dunlap, 330 F.3d 919, 926-27 (7th Cir. 2003) (taking judicial notice of information from government website).

      . We recognize the disagreement among the circuits regarding the interaction between § 2680(a) and § 2680(h). Compare Nguyen v. United States, 556 F.3d 1244, 1257 (11th Cir. 2009) ("[I]f a claim is one of those listed in the proviso to subsection (h), there is no need to determine if the acts giving rise to it involve a discretionary function; sovereign immunity is waived in any event.”), with Medina v. United States, 259 F.3d 220, 224-26 (4th Cir. 2001) (holding that intentional tort claims under § 2680(h) must also clear the discretionary function hurdle under § 2680(a)). Because the Gariings fail to allege facts showing they were falsely arrested, falsely imprisoned, or subject to an intentional abuse of process, they cannot use § 2680(h) to avoid sovereign immunity, and we need not reach this issue.

      . Because this action must be dismissed for lack of subject matter jurisdiction, we do not address the Garlings’ arguments on appeal that their claims are not time-barred or that equitable tolling should apply.


author: MARCUS, Circuit Judge:

text:
    GDG ACQUISITIONS LLC, Plaintiff-Appellee, v. GOVERNMENT OF BELIZE, Defendant-Appellant.
    No. 16-12397
    United States Court of Appeals, Eleventh Circuit.
    (February 28, 2017)

      Martin J. Siegel, Law Offices of Martin J. Siegel, PC, Arthur S. Feldman, Berg Feldman Johnson, LLP, Andrew E. Ru-benstein, Tracey Law Firm, Houston, TX, Angela Valentina Arango-Chaffin, The Chaffin Law Firm, Miami Beach, FL, Douglas Hyde Reynolds, Jr., Annette M. Urena, Tripp Scott, PA, Fort Lauderdale, FL, for Plaintiff-Appellee.
    Juan C. Basombrio, Dorsey & Whitney, LLP, Costa Mesa, CA, John Bond Atkinson, Krystina Noelle Jirón, Atkinson & Brownell, PA, Miami, FL, for Defendant-Appellant.
    Before MARCUS, ANDERSON, and GINSBURG, Circuit Judges.

       Honorable Douglas H. Ginsburg, United States Circuit Judge for the District of Columbia Circuit, sitting by designation.

   MARCUS, Circuit Judge:

This is the second time a contract dispute arising out of the lease of telecommunications equipment by the plaintiff GDG Acquisitions, LLC (“GDG”), to the defendant Government of Belize (“Government”), has reached our Court. In Round One, the district court dismissed GDG’s complaint on the grounds of forum non conveniens and international comity; we vacated and remanded for the district court to consider the enforceability of the contract’s forum-selection clause and its significance to the forum non conveniens analysis. Now, in Round Two, the Government appeals the district court’s subsequent denial of its motion to dismiss.

After thorough review, we conclude that the Government waived its sovereign immunity. The Government of Belize claims that the express waiver of sovereign immunity contained in the contract was ineffectual because its Minister of Budget Management, who negotiated and signed the contract on its behalf, lacked the authority to waive sovereign immunity. But despite the Minister’s claimed lack of authority to bind Belize, the Government ratified Fonseca’s actions by fully performing its contract obligations during the lease term, and paying approximately $13.5 million in forty separate payments over a period of nearly six years and spanning two different administrations. This conduct can be explained only on the understanding that the Government intended to be bound to the contract. Accordingly, we affirm the district court’s denial of the Government’s motion to dismiss.

I.

A.

On February 10, 2012, GDG sued the Government of Belize in the United States District Court for the Southern District of Florida, seeking some $10 million in unpaid rent, with the amount growing each month. The complaint and the declarations submitted to the district court alleged these basic facts. As Minister of Budget Management, Investment, and Home Affairs, one of Ralph Fonseca’s tasks was to maximize the Government’s return on its expenditures of tax revenue funds. To do so, Fonseca entered into complex negotiations with a Belizean company, International Telecommunications, Ltd. (“Intel-co”), in order to reduce the Government’s expenditures for telecommunications equipment and services. Intelco was owned and operated by Glenn D. Godfrey, a former Attorney General of Belize. Fonseca and Godfrey met several times in Miami to negotiate a lease of telecommunications equipment from Intelco to the Government. They ultimately closed a deal in Miami on December 18, 2002. The deal was governed by a Master Lease Agreement (MLA), which was negotiated in Miami and signed in Washington, D.C., by Godfrey on behalf of Intelco and by Fonse-ca purportedly on behalf of the Government of Belize.

All rents due under the MLA were evidenced by promissory notes delivered by the Government to Intelco; the financing was supported by the International Bank of Miami. The same day they signed the MLA, the parties signed a first lease schedule and promissory note for $6,748,189.20, to be paid in twenty quarterly payments of $337,409.46 each. That five-year lease was scheduled to end on December 18, 2007, with the final payment being due on that date. On August 27, 2003, the parties agreed to a second lease of additional telecommunications equipment pursuant to a second lease schedule and promissory note, also in the amount of $6,748,189.20, again to be paid in twenty quarterly payments of $337,409.46 each. The second five-year lease was scheduled to end on August 27, 2008; the final payment was due on that date. After entering into the agreement, Intelco assigned the payments to the International Bank of Miami in exchange for a single upfront cash payment from the bank of $10 million for the two leases.

Three provisions in the MLA are essential to the resolution of this appeal. First, the Master Lease Agreement contained a provision stating that the Government waived its sovereign immunity:

Lessee acknowledges that the activities contemplated by this Master Lease and each Lease Schedule are commercial in nature rather than governmental or public, and therefore acknowledges and agrees that it is not entitled to any right of immunity or defense on the grounds of sovereignty or otherwise with respect to any such action or proceeding arising out of or relating to this Master Lease or any Lease Schedule. Lessee hereby expressly and irrevocably waives any such right of immunity or defense which now or hereafter may exist or claim thereto which may now or hereafter exist in respect of the Master Lease or any Lease Schedule and its obligations arising thereunder, and agrees not to assert any such right or claim in any such action or proceeding, whether in the United States of America or elsewhere. Lessee hereby expressly and irrevocably waives any defense or claim it may have to delay, hinder or stop the enforcement of this Master Lease or any Lease Schedule based directly or indirectly upon the Act of State Doctrine. Neither Lessee nor any of its property enjoys any right of immunity from suit, setoff, judgment, execution on a judgment or attachment prior to judgment or in aid of execution in respect of its obligations under this Master Lease or any Lease Schedule.

Second, the MLA included a forum-selection clause:

Lessee hereby waives any special rights or immunities which it may enjoy under the laws of Belize, and agrees and abides that its rights and obligations under this Master Lease or any Lease Schedule shall be determined exclusively in accordance with the governing laws of the State of Florida, irrespective of conflict of laws principles. Lessee irrevocably submits to the exclusive jurisdiction of any of the federal and state courts in the State of Florida in any action or proceeding arising out of or relating to the Master Lease or any Lease Schedule, and Lessee hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in any court of competent jurisdiction in the State of Florida.

Finally, the MLA contained a waiver of objections to venue or to claims of an inconvenient forum:

Lessee hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to the Master Lease or any Lease Schedule and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient' forum. Lessee specifically acknowledges that' Miami-Dade County, Florida is a proper venue for the Lessor to bring suit against Lessee pursuant to the Master Lease or any Lease Schedule.

Another provision in the MLA governed the termination or expiration of the leases. Early termination of the leases required 120 days’ written notice of the Government’s intent to return the equipment. The failure to give notice triggered an automatic extension of the applicable lease schedule on a month-to-month basis for a period not to exceed twelve months. At the end of the term, the Government was required to return the equipment to Intelco; if it did not do so, it was obliged to continue making payments in an amount equal to the average monthly rent during the lease term.

The Government of Belize made forty (quarterly) rental payments for the terms of the two leases, totaling nearly $13.5 million. The complaint alleged that Belize never evinced any intent to return the equipment during either the lease terms or the automatic renewal terms, but it continued to possess and use the equipment after the termination of the lease periods. The Government has not made any additional lease payments since 2008.

B.

On January 26, 2012, Godfrey created GDG Acquisitions, LLC, as a Florida limited liability company; its principal place of business was in Houston, Texas. Shortly thereafter, Intelco assigned all of its assets to GDG, including its interest in the Belize agreements. Soon after GDG’s complaint had been filed, the Government moved to dismiss, offering three reasons: the lack of subject matter jurisdiction because of foreign sovereign immunity; forum non con-veniens; and international comity. On March 28, 2013, the district court granted the Government’s motion citing forum non conveniens and international comity; it did not address the defense of foreign sovereign immunity.

On April 22, 2014, a panel of this Court vacated the dismissal and remanded the case. GDG Acquisitions, LLC v. Gov’t of Belize, 749 F.3d 1024 (11th Cir. 2014). We vacated the forum non conveniens determination in light of the Supreme Court’s decision in Atl. Marine Constr. Co., Inc. v. U.S. Dist. Court for the W. Dist. of Tex., — U.S. -, 134 S.Ct. 568, 187 L.Ed.2d 487 (2013), which instructed the district court to give “controlling weight” to a valid forum-selection clause when conducting a forum non conveniens analysis “in all but the most exceptional cases.” Id. at 581 (quotation omitted). Because “[a] binding forum-selection clause requires the court to find that the forum non conveniens private factors entirely favor the selected forum,” GDG Acquisitions, 749 F.3d at 1029, the panel remanded the case to the district court with instructions to “determine the enforceability of the forum-selection clause and its significance to the forum non con-veniens analysis.” Id. at 1034. The panel also vacated the district court’s dismissal because of international comity, concluding that retrospective international comity did not apply without a judgment from a foreign court and that this case did not fall within the narrow sphere of prospective international comity. Id.

On remand, after supplemental briefing and argument, the district court denied the Government’s motion to dismiss. The court determined that it first had to decide whether the forum-selection clause was binding and enforceable. This in turn required answering whether Fonseca had the authority to waive the Government’s sovereign immunity. As the district court framed the question: “If Minister Fonseca possessed the requisite authority to bind the Government of Belize, then both the sovereign immunity waiver and the forum selection clause are likely valid and enforceable. If he did not possess said authority, then they are not.”

To answer that question, the trial court turned to this Court’s precedent in Aquamar S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279 (11th Cir. 1999), which had held that courts should start with the assumption “that an ambassador possesses the authority to appear before them and waive sovereign immunity absent compelling evidence making it ‘obvious’ that he or she does not.” Id. at 1299. Over the Government’s objection, the district court applied this presumption to Minister Fonseca and, relying on declarations filed by both parties, concluded that “the Government of Belize ha[d] not met its burden and shown by a preponderance of the evidence that the FSIA’s waiver exception [did] not apply.” No extraordinary circumstances were found and no compelling evidence existed in the record suggesting that Fonseca lacked the authority to waive the Government’s sovereign immunity. Thus, the district court held that the waiver exception was satisfied and that Belize could be sued in a United States court. Turning to the forum-selection clause, the district court concluded that the clause was enforceable because Fonseca had the authority to bind the Government. The court observed that, after Atlantic Marine, it was compelled to find that the private factors of the forum non conveniens analysis favored adjudication in the preselected forum, and, therefore, it denied the Government’s motion to dismiss.

The Government now appeals from that decision.

II.

“It is well-settled that a court of appeals has jurisdiction over interlocutory orders denying claims of immunity under the FSIA.” Butler v. Sukhoi Co., 579 F.3d 1307, 1311 (11th Cir. 2009). We review de novo a district court’s determination of jurisdiction under the Foreign Sovereign Immunities Act of 1976 (FSIA), Pub. L. No. 94-583, 90 Stat. 2891, codified as amended in various sections of Title 28. Aguamar, 179 F.3d at 1289. “We may set aside the district court’s factual determinations, however, only if they are clearly erroneous.” Id. at 1290. “To determine whether subject-matter jurisdiction under the FSIA exists, a court looks at the plaintiffs allegations and any undisputed facts that the parties have put forward.” Architectural Ingenieria Siglo XXI, LLC v. Dominican Republic, 788 F.3d 1329, 1338 (11th Cir. 2015).

Like the district court, we are a court of limited jurisdiction; our power to act “is determined by Congress ‘in the exact degrees and character which to Congress may seem proper for the public good.’ ” Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 433, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) (quoting Cary v. Curtis, 44 U.S. (3 How.) 236, 245, 11 L.Ed. 576 (1845)). Through the FSIA, Congress has given the district courts original jurisdiction over “any non-jury civil action against a foreign state ... as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity.” 28 U.S.C. § 1330(a). Indeed, “Congress[] inten[ded] that the FSIA be the sole basis for obtaining jurisdiction over a foreign state in our courts.” Amerada Hess Shipping, 488 U.S. at 434, 109 S.Ct. 683; see also Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 610, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992) (“The [FSIA] establishes a comprehensive framework for determining whether a court in this country, state or federal, may exercise jurisdiction over a foreign state.”).

Under the FSIA, it is also well established that “a foreign state is presumptively immune from the jurisdiction of United States courts.” Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993). To overcome the presumption, the plaintiff must “produc[e] evidence that ‘the conduct which forms the basis of [the] complaint falls within one of the statutorily defined exceptions.’ ” Butler, 579 F.3d at 1312-13 (quoting S & Davis Int’l, Inc. v. Republic of Yemen, 218 F.3d 1292, 1300 (11th Cir. 2000)). “Whether the plaintiff has' satisfied his burden of production in this regard is determined by looking at ‘the allegations in the complaint [and] the undisputed facts, if any, placed before the court by the parties.’ ” Id, at 1313 (quoting In re Terrorist Attacks on Sept. 11, 2001, 538 F.3d 71, 80 (2d Cir. 2008)) (alteration in original). If the plaintiff “has asserted facts suggesting that an exception to foreign sovereign immunity exists, the party arguing for immunity ... bears the burden of proving by a preponderance of the evidence that the exception does not apply.” Aguamar, 179 F.3d at 1290.

In this case, therefore, the burden of production rested with GDG to establish that an exception to the FSIA existed. GDG satisfied its burden by asserting facts in its complaint suggesting that the waiver exception to the FSIA applied because the Government had waived sovereign immunity in the Master Lease Agreement. The statute’s waiver exception says that:

(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case—
(1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of.the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver.

28 U.S.C. § 1605(a)(1). “[A]s a general rule, explicit waivers of sovereign immunity are narrowly construed in favor of the sovereign and are not enlarged beyond what the language requires.” Architectural Ingenieria, 788 F.3d at 1338 (quotations omitted).

After GDG asserted facts establishing that an exception applied, the burden of going forward shifted to the Government of Belize to show, by a preponderance of the evidence, that the waiver exception did not apply. See Aguamar, 179 F.3d at 1290. The Government has not carried its burden because this record overwhelmingly demonstrates that it ratified the Master Lease Agreement and the waiver of sovereign .immunity.

A.

In determining whether there was a waiver, the district court applied the Aqua-mar presumption that ambassadors have the authority to waive sovereign immunity absent compelling evidence to the contrary. The court found “no evidence in the-record that makes it ‘obvious’ that Minister Fonseca lacked the authority to waive Belize’s sovereign immunity.” Thus, it concluded that “the Government of Belize authorized the sovereign immunity waiver contained within the Master Lease Agreement.” On appeal, both parties explicate Aguamar at considerable length. The Government claims that Aguamar applies only to cases involving ambassadors and that, if applied to cases involving governmental ministers other than ambassadors, it should require, at a minimum, a showing of actual authority as prescribed by the foreign state’s laws. GDG responds that Aguamar contains the correct standard and that the presumption of authority to waive immunity was properly applied.

We think the presumption created by the Court in Aguamar is inapplicable in this case. Aguamar addressed an ambassador’s authority to waive sovereign immunity in pending litigation. See Aguamar, 179 F.3d at 1293. Based on Congress’s “indication] that courts should look to international law when interpreting the FSIA’s terms,” the panel examined various sources of customary international law and concluded that “a sovereign’s chief diplomatic representative to a foreign nation possesses an extraordinary role and powers.” Id. at 1294-95. This conclusion was bolstered because “[i]nternational courts traditionally have assumed that an ambassador’s powers include the authority to present his or her country’s position before foreign tribunals.” Id at 1296. The panel also noted that many federal courts acknowledge the presumption. See id. at 1297 (citing cases). Thus, the Court held that, “under the FSIA, courts should assume that an ambassador possesses the authority to appear before them and waive sovereign immunity absent compelling evidence making it ‘obvious’ that he or she does not.” Id. at 1299.

Aguamar cannot provide the answer because this case does not involve the acts of an ambassador. In Aguamar, we emphasized the unique qualities and powers of an ambassador. An ambassador “performs several important functions on behalf of the state” he represents, including “ ‘representing the sending State in the receiving State[,] protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law,’ and ‘act[ing] as representative of the sending State to any international organization.’ ” Id. at 1295-96 (quoting Vienna Convention on Diplomatic Relations, arts. 3, 5(3), Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95) (citation omitted). But the province and function of an ambassador is profoundly different from the powers and responsibilities normally associated with a budget minister. Customary norms of international law do not as a general rule recognize a Minister of Budget Management as having such “broad powers to bind the countr[y] [he or she] represent[s]” or as being able to “speak for his or her country.” Id. at 1296-97. Thus, we have no occasion to apply the Aguamar presumption.

B.

“Just as federal courts apply a federal standard to determinations of the scope of an express waiver, and of the existence of an implied waiver, we apply federal law to the question of whether a waiver has been effected by one with the authority to do so.” Id. at 1294 (citations omitted). The FSIA does not specify what kind of authority — actual or apparent — is required to waive sovereign immunity. We need not answer that question because both parties agree that actual authority is the proper standard against which to measure the conduct of the Government of Belize and its ministers.

Whether Fonseca had the authority to act on behalf of the Government is a question of agency. In an agency relationship, “[t]he ‘principal’ is ‘[t]he one for whom action is to be taken,’ and the ‘agent’ is ‘[t]he one who is to act.’ ” United States v. Schaltenbrand, 930 F.2d 1554, 1560 (11th Cir. 1991) (quoting Restatement (Second) of Agency § l(2)-(3)) (citation omitted). In this case, the parties characterize Fonseca as the agent acting for the sovereign as the principal. The record establishes that Fonseca signed the MLA, the promissory notes, and the lease schedules on behalf of the Government of Belize. Those documents say that the agreement, notes, and lease schedules were entered into by “the Government of Belize, through the Ministry of Budget Management” and, after a change in title, by “the Government of Belize, through the Ministry of Finance and Home Affairs.”

We have already held that “[w]hen applying agency principles to federal statutes, ‘the Restatement [ ] of Agency ... is a useful beginning point for a discussion of general agency principles.’ ” Arriaga v. Fla. Pac. Farms, LLC, 305 F.3d 1228, 1245 (11th Cir. 2002) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 755, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). According to the Restatement (Third) of Agency, “[a]n agent acts with actual authority when, at the time of taking action that has legal consequences for the principal, the agent reasonably believes, in accordance with the principal’s manifestations to the agent, that the principal wishes the agent so to act.” Restatement (Third) of Agency § 2.01 (2006).

In this case, however, we need not decide whether Fonseca had actual authority to enter into the MLA because the Government subsequently ratified his actions and, therefore, agreed to be bound by them as if they were done with actual authority. While “[o]nly interactions that are within the scope of an agency relationship affect the principal’s legal position,” id. at § 1.01 cmt. c, the principal may also ratify his agent’s unauthorized actions, thus becoming bound by their legal consequences. See id. at § 4.01 & cmt. b. In this way, the principal subsequently places its imprimatur on the agent’s unauthorized acts, converting them into the acts of the principal.

The Restatement defines “ratification” as “the affirmance of a prior act done by another, whereby the act is given effect as if done by an agent acting with actual authority.” Id. at § 4.01(1). Generally, “[a] person may ratify an act if the actor acted or purported to act as an agent on the person’s behalf,” id. at § 4.03 — that is, if the ratifier was the principal for whom the agent acted or purported to act. The ratifier thus must have existed at the time of the act and must have had the capacity to have legal relations and to act as a principal at the time of ratification. See id. at §§ 4.01(3)(b), 4.04(1) & cmt. b. If the principal subsequently ratifies his agent’s act, “the legal consequence is that the [principal’s] legal relations are affected as they would have been had the actor been an agent acting with actual authority at the time of the act.” Id.- at § 4.01 cmt. b; see also id. (“A principal’s ratification confirms or validates an agent’s right to have acted as the agent did.”); id. at § 4.02(1) (“[R]ati-fication retroactively creates the effects of actual authority.”). Thus, if Fonseca’s acts were ratified by the Government, then his actions are given effect as if he had acted with actual authority.

Under the Restatement, “[a] person ratifies an act by (a) manifesting assent that the act shall affect the person’s legal relations, or (b) conduct that justifies a reasonable assumption that the person so consents.” Id. at § 4.01. For example, a “person may ratify [an] act through conduct justifiable only on the assumption that the person consents to be bound by the act’s legal consequences.” Id. at § 4.01 cmt. d. That is, if the principal engages in conduct that could be explained only by the principal’s agreement to be bound by the agent’s act, then the principal has ratified that act.

The undisputed and unambiguous facts found in the record indicate that the Government made forty payments of $337,409.46 each in accordance with the lease schedules for the entirety of the two concurrent five-year leases, which collectively spanned five years and eight months (from December 18, 2002, to August 27, 2008) and amounted to the sum of approximately $13.5 million. The payments continued even after a change of administration in the Government of Belize in February 2008. The Government’s conduct in making the payments as required by the MLA, the promissory notes, and the lease schedules can be understood only on the assumption that the Government repeatedly consented to be bound by the MLA — indeed, it is difficult to conceive of any other reason why the Government would have willingly made regular payments totaling nearly $13.5 million.

The Government does not deny that it made these payments. Throughout the district court proceedings, the Government and its declarants acknowledged that “[p]ayments were made to the International Bank of Miami,” that the Government’s obligations to the International Bank of Miami as required by the promissory notes were “fully paid,” that “it is undisputed that the bank has been paid off already,” and that “payments were made by [the Government] to the International Bank of Miami for services provided by Inteleo.” Those concessions were repeated in the Government’s opening brief on appeal, in which the Government acknowledged that the “amounts were paid through the end of the term in each Lease Schedule, totaling $6,748,189.20 under each.” And the fact of the payments was again acknowledged during oral argument:

Court: Did the Government of Belize appropriate the money each year to make payments to satisfy the terms of the MLA and were not the funds made by the Government? You can tell me yes, but it doesn’t matter, but I want to know an answer to that question. Government of Belize: The answer is yes.

As the record conclusively establishes, the payments were made.

Proof of payment was entered into the record in the form of four payment warrants filed as exhibits to GDG’s response to the Government’s motion, to dismiss. These payment warrants were on official Ministry of Finance letterhead and were sent from Hugh McSweaney, Financial Secretary, to Sydney Campbell, Governor of the Central Bank of Belize. Three of the sample payment warrants noted that “the Government of Belize agreed to pay all Rent Payments under the .lease to Intel-co’s account at the International Bank of Miami,” and all of the warrants specified that they were for rent payments due to Inteleo.

Still another form of conduct that may yield consent by ratification inheres in the retention of benefits generated by the agent’s act. See Restatement (Third) of Agency at § 4.01 cmt. g (“A person may ratify an act under subsection (2)(b) by receiving or retaining benefits it generates if the person has knowledge of material facts and no independent claim to the benefit.”) (citation omitted). Thus, a principal’s retention of benefits realized as a result of his agent’s unauthorized actions likewise suggests that although the agent might initially have acted without authority, the principal has approved the act and wishes to be bound by it. In this case, again, it is undisputed that the Government retained the telecommunications equipment for the duration of the two leases and, indeed, that the Government still has not returned the equipment to GDG. The Government retained its benefits under the MLA and, in doing so, consented to be bound to the legal consequences of the agreement. Again, neither the act of retaining the telecommunications equipment for nearly six years nor the act of making payments can be understood absent the assumption that the Government intended to be bound by the agreement. On this record, then, there is no need to inquire into Belizean law. Quite simply, the Government of Belize consented to and affirmed Fonseca’s actions by ratification; the explicit waiver of sovereign immunity contained within the Master Lease Agreement is, therefore, binding and enforceable.

C.

The Government of Belize nevertheless says that ratification fell short in this case. Belize argues that “an agreement that is void ab initio cannot be enforced against a sovereign under a ‘ratification’ theory” because subsequent payments cannot create actual authority that did not exist at the time of the actions. This argument misapprehends the nature of ratification. As we have noted, the doctrine of ratification starts with the assumption that the agent did not have actual authority at the time he acted. See McDonald v. Hamilton Elec., Inc. of Fla., 666 F.2d 509, 514 (11th Cir. 1982) (“A principal can ratify the unauthorized act of an agent purportedly done on behalf of the principal either expressly or by implication through conduct that is inconsistent with an intention to repudiate the unauthorized act.”) (emphasis added). It is precisely on account of the principal’s subsequent consent that the prior unauthorized act “is given effect as if done by an agent acting with actual authority.” Restatement (Third) of Agency § 4.01(1). Thus, it is of no moment that Fonseca may have acted without actual authority at the time he entered into the agreement.

Belize also claims that the payments under the MLA ratified only the MLA’s payment obligations and not its waiver of sovereign immunity. An application of the Restatement (Third) of Agency again squarely forecloses this argument. Section 4.01(3) of the Restatement says that ratification cannot occur unless “the ratification encompasses the act in its entirety as stated in § 4.07.” Section 4.07 in turn states that “[a] ratification is not effective unless it encompasses the entirety of an act, contract, or other single transaction.” Id. at § 4.07 (emphasis added). This does not mean that a principal must expressly state that he is ratifying the entire transaction for ratification to be effective, because “[a] person may not, by ratifying an act, obtain its economic benefits without bearing the legal consequences that accompany the act.” Id. at § 4.07 cmt. b.

Two illustrations inform our handling of this dispute:

8. Acting without actual or apparent authority, A purports to sell a yacht owned by P, the “Acis,” to T for $100,000. A then sells a second yacht, the “Galatea,” also owned by P, to T for $75,000. On hearing the facts, P faxes T: “You may keep Acis but Galatea went too cheaply.” P has ratified the sale of Acis but not Galatea.
4. Same facts as Illustration 3 except that, as P knows, A purported to sell Acis to T using a written contract form containing an arbitration clause. P’s ratification of A’s sale of Acis binds P to the arbitration clause.

Id. at § 4.07 cmt. c, illus. 3-4. In this case, the Government of Belize made payments pursuant to and retained the benefits of an agreement that also included a waiver of sovereign immunity and a forum-selection clause. The payment warrants themselves expressly noted that the payments were for rents due under the lease, indi-eating that the payments were made with knowledge of the contract. The Government accepted both the benefits (telecommunications equipment) and the burdens (payments) of the contract. The Government’s ratification of the payment obligation binds it to the rest of the contract, just as P’s acceptance of $100,000 for Acis also bound him to the arbitration clause in the example cited above.

Finally, the Government tries to avoid the consequences of the Master Lease Agreement by claiming that the payments made under the MLA were unauthorized. As support, the Government relies on a case drawn from the Caribbean Court of. Justice (Belize’s highest court), BCB Holdings Ltd. v. Attorney General of Belize, [2013] CCJ 5 (AJ). In that case, the Minister of Finance and the Attorney General of Belize apparently had entered into an agreement with two private companies to create an alternative corporate tax regime for those companies that contravened Beli-zean tax laws. After a change in administration, the Government disavowed the contract. Arbitration resulted in a judgment for the companies, but the Caribbean Court of Justice declined to enforce the award as being against public policy.

The Government’s argument fails for at least three reasons. First, as we’ve already detailed, foreign law does not provide the guiding principles for interpreting American laws. See Aguamar, 179 F.3d at 1294. This case requires us to interpret the waiver exception of the FSIA — an American statute. In determining whether Fonseca had the authority to waive sovereign immunity, we need only look to the Restatement and to American principles of agency. We need not consult a foreign case in applying American principles of ratification to the Government’s conduct.

In the second place, the Government’s argument that the payments themselves were unauthorized was raised only for the first time in oral argument and has thus been waived. This Court “will not address a claim that has been abandoned on appeal or one that is being raised for the first time on appeal, without any special conditions.” Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1335 (11th Cir. 2004). The Government referenced the BCB Holdings case in district court, but in support of three, different points: first, that “an agreement entered into by a governmental minister without actual authority is invalid and unenforceable in its entirety — including any and all provisions contained within the agreement”; second, that “an agreement that is void ab initio cannot be enforced against a foreign sovereign under a ‘ratification’ theory”; and finally, that the MLA is not enforceable under a theory of unjust enrichment. In district court, the Government never argued that the payments themselves were made without authorization; it cannot assert that argument for the first time here.

Finally, even - if we were to consider BCB Holdings, the outcome would not change. BCB Holdings examined a wholly different contract between wholly different parties in a wholly different setting. The opinion employed no discussion of ratification and we can discern no reason to rely on the Caribbean Court of Justice’s decision that the enforcement of one arbitration agreement was against public policy to invalidate an entirely different agreement.

The long and short of it is that the Government ratified Fonseca’s actions through its repeated payments of large sums of money over many years and by its retention of the telecommunications equipment. It thereby ratified the waiver of sovereign immunity contained in the same agreement.

III.

The Government of Belize also says that the district court should have dismissed the case for forum non conveniens. Again, we are unpersuaded. We review a district court’s forum non conveniens analysis for abuse of discretion. Aldana v. Del Monte Fresh Produce N.A., 578 F.3d 1283, 1288 (11th Cir. 2009). Under that standard, “we must affirm unless we find that the district court has made a clear error of judgment, or has applied the wrong legal standard.” Id. (quoting United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc)).

To obtain the dismissal of a case for forum non conveniens, the moving party must show that “(1) an adequate alternative forum is available, (2) the public and private factors weigh in favor of dismissal, and (3) the plaintiff can reinstate his suit in the alternative forum without undue inconvenience or prejudice.” Leon v. Millon Air, Inc., 251 F.3d 1305, 1311 (11th Cir. 2001). In considering these factors, the reviewing court “must evaluate both the convenience of the parties and various public-interest considerations,” and it must then “decide whether, on balance, a transfer would serve the convenience of the parties and witnesses and otherwise promote the interest of justice.” Atlantic Marine, 134 S.Ct. at 581 (quotation omitted).

“The calculus changes, however, when the parties’ contract contains a valid forum-selection clause, which represents the parties’ agreement as to the most proper forum.” Id. (quotation omitted). So long as the contract and the clause are binding and enforceable, “a district court should ordinarily transfer the case to the forum specified in that clause.” Id. This is because “[w]hen parties agree to a forum-selection clause, they waive the right to challenge the preselected forum as inconvenient or less convenient for themselves or them witnesses, or for their pursuit of the litigation.” Id. at 582. The reviewing court thus “must deem the private-interest factors to weigh entirely in favor of the preselected forum”; the court “should not consider arguments about the parties’ private interests.” Id. And “[b]e-cause [the public-interest] factors will rarely defeat a transfer motion, the practical result is that forum-selection clauses should control except in unusual eases.” Id. Thus, dismissal for forum non conve-niens would be permissible in this case only if “extraordinary circumstances unrelated to the convenience of the parties” were present. Id. at 581.

The Government does not challenge the merits of the district court’s forum non conveniens analysis, nor does it argue that extraordinary circumstances are present to support a forum non conveniens dismissal. It offers only that “[t]he District Court erred in allowing Aguamar to dictate whether Fonseca possessed authority to bind [the Government] to the forum seleetion clause,” and that local law should have been considered in the forum non conve-niens analysis. The Government is correct that the Aguamar presumption does not apply but, as we have explained, in this case the district court nevertheless properly concluded that Belize was bound by the MLA. Because Fonseca possessed the actual authority to act through the Government’s ratification of the MLA, the forum-selection clause was binding. The district court did not abuse its discretion.

We AFFIRM the denial of the Government’s motion to dismiss.

      . This title was later changed to Minister of Finance and Home Affairs.

      . The original complaint also alleged that the commercial-activity exception, found in 28 U.S.C. § 1605(a)(2), applied to this case, but the district court never addressed that issue and neither party argued it here. Thus, only the waiver exception is before us.

      . We offer no view on the wisdom or efficacy of using foreign law to illuminate the meaning of waiver because we need not use foreign law to arrive at an answer in this case. While Aguamar warns of the dangers of using foreign law, it does so only in dicta. See Aquamar, 179 F.3d at 1297-98. Indeed, none of the three out-of-circuit cases cited by the Government of Belize in support of foreign law requires the use of foreign law in making the authority determination. In Velasco v. Gov't of Indonesia, 370 F.3d 392, 400-02 (4th Cir. 2004), the Fourth Circuit looked to declarations and governmental decrees filed in the district court but nowhere said that it was required to look to foreign law. In both Dale v. Colagiovanni, 443 F.3d 425, 429-30 (5th Cir. 2006), and Phaneuf v. Republic of Indonesia, 106 F.3d 302, 308 (9th Cir. 1997), the courts remanded the cases for an authority analysis without mentioning the use of foreign law. However, in a second, unpublished decision, the Ninth Circuit did analyze foreign law but again did not say that it was required to do so. See Phaneuf v. Gov't of Indonesia, 18 Fed.Appx. 648, 650-51 (9th Cir. 2001).

      . Moreover, regardless of whether the Caribbean Court of Justice’s opinion supports these arguments, they lack merit in'this case. Again, ratification starts from the premise that the initial act was done without authorization. See Restatement (Third) of Agency § 4.01 & cmt. b. The principal’s acceptance of the benefits and burdens of the contract also binds the principal to the contract's other clauses. See id. at § 4.07 & cmt. g. And finally, GDG has never asserted that the MLA should be enforced under an unjust enrichment theory.

      . Moreover, we would have to weigh the Caribbean Court of Justice's decision against an unpublished decision from the D.C. Circuit enforcing that same arbitration agreement in federal court. See BCB Holdings Ltd. v. Gov't of Belize, 650 Fed.Appx. 17, 18 (D.C. Cir. 2016) ("Belize has failed to justify the use of the public policy exception in this case.”).