Nelson J. Mezerhane v. Republica Bolivariana De Venezuela , 785 F.3d 545 ( 2015 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14953
________________________
D.C. Docket No. 1:11-cv-23983-MGC
NELSON J. MEZERHANE,
Plaintiff - Appellant,
versus
REPÚBLICA BOLIVARIANA DE VENEZUELA,
a sovereign nation,
SUPERINTENDENCIA DE LAS INSTITUCIONES DEL SECTOR BANCARIO,
an agency or instrumentality of the Bolivarian Republic of Venezuela,
FONDO DE PROTECCIÓN SOCIAL DE LOS DEPÓSITOS BANCARIOS,
an agency or instrumentality of the Bolivarian Republic of Venezuela,
et al.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 7, 2015)
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Before HULL, JULIE CARNES, and WALKER, * Circuit Judges.
WALKER, Circuit Judge:
Plaintiff Nelson Mezerhane appeals the district court’s order dismissing his
international human rights law complaint for lack of subject matter jurisdiction. In
claims against Venezuela and two Venezuelan governmental entities, Mezerhane
alleges that the Venezuelan government committed various torts and statutory
violations against him. The district court held that the defendants were entitled to
sovereign immunity under the Foreign Sovereign Immunities Act (FSIA), but
Mezerhane argues that this was error because the FSIA’s exception for cases “in
which rights in property taken in violation of international law are in issue”
applies. 28 U.S.C. § 1605(a)(3). We agree with the district court and conclude that,
under the domestic takings rule, no violation of international law occurred for
FSIA purposes because the alleged takings affected a foreign country’s own
national and took place on that country’s soil. We also agree with the district court
that the act of state doctrine provides an additional basis to dismiss Mezerhane’s
claims. Accordingly, we affirm the district court’s decision.
*
The Honorable John M. Walker, Jr., United States Court of Appeals for the Second
Circuit, sitting by designation.
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BACKGROUND
On November 4, 2011, Mezerhane filed a seventeen-count complaint against
República Bolivariana de Venezuela (“Venezuela”), Superintendencia de las
Instituciones Del Sector Bancario (“SUDEBAN”), and Fondo de Protección Social
De Los Depósitos Bancarios (“FOGADE”), as well as a number of additional
Venezuelan agencies and instrumentalities. 1 SUDEBAN and FOGADE are both
Venezuelan government entities. Mezerhane alleges that the defendants engaged in
a pattern of persecution against him that included numerous violations of human
rights law, expropriation of his property in violation of international law, and other
tortious acts. He asserts common law tort claims and claims under the Alien Tort
Claims Act and the Torture Victim Protection Act of 1991. As we must at the
pleading stage, we take Mezerhane’s factual allegations to be the operative facts.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007) (“[A] judge ruling on a
defendant’s motion to dismiss a complaint must accept as true all of the factual
allegations contained in the complaint.” (internal quotation marks omitted)).
Mezerhane is a successful Venezuelan entrepreneur who ran a number of
businesses in that country, including the bank Banco Federal, C.A., the newspaper
Diario El Globo, and the television channel Globovisión Tele, C.A. His media
1
Only Venezuela, SUDEBAN, and FOGADE are parties to this appeal.
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outlets were “editorially independent entities, providing a counter-point to the
state-run networks.”
Beginning in 2004, during Hugo Chavez’s term as president of Venezuela,
the government targeted Mezerhane to gain control over his media companies.
President Chavez himself called Mezerhane to try to persuade him to relinquish his
interest in Globovisión to the government. When Mezerhane refused, President
Chavez retaliated against him first by attacking him in public speeches, and later
by expropriating his and his family’s assets through illegitimate judicial
proceedings. All of this caused Mezerhane to suffer damages in excess of $1
billion.
The Venezuelan government also accused Mezerhane of playing a role in
connection with the murder of a Venezuelan prosecutor. In 2005, after learning
that he was being sought and voluntarily surrendering to Venezuelan authorities,
Mezerhane was arrested and incarcerated for 37 days. In December 2005,
Mezerhane was released on bail and he filed an action with the Inter-American
Commission on Human Rights for false imprisonment and human rights abuses.
Mezerhane says he was “branded an outlaw,” and was the victim of “egregious”
defamation.
Mezerhane also states that he was stripped of “all indicia of citizenship,”
including the rights to travel in and outside of Venezuela, “to live in a non-
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incarcerated state in Venezuela,” to “earn a livelihood,” and to acquire, sell, and
convey property. As a result of these actions, Mezerhane claims that he is de facto
stateless. He is currently seeking asylum in the United States.
On October 23, 2012, Venezuela and SUDEBAN jointly moved to dismiss
Mezerhane’s complaint claiming sovereign immunity under the FSIA, 28 U.S.C.
§§ 1602-11. On October 26, 2013, FOGADE filed a separate motion to dismiss on
the same ground.
Mezerhane’s complaint treats Venezuela as a “foreign state” for purposes of
the FSIA and treats SUDEBAN and FOGADE as “agenc[ies] or instrumentalit[ies]
of a foreign state” under 28 U.S.C. § 1603(b). The complaint asserts that the
district court has personal jurisdiction over SUDEBAN and FOGADE based on
their commercial activities in the United States.
On December 30, 2013, the district court (Marcia G. Cooke, J.) issued an
opinion granting the motions to dismiss on the bases that the district court lacked
subject matter jurisdiction over Mezerhane’s claims because defendants are
entitled to immunity under the FSIA and that the claims are barred by the act of
state doctrine.
Mezerhane now appeals.
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DISCUSSION
I. Legal Standard
We review de novo a district court’s conclusion that a defendant is entitled
to sovereign immunity under the FSIA. Venus Lines Agency v. CVG Industria
Venezolana De Aluminio, C.A., 210 F.3d 1309, 1311 (11th Cir. 2000). “If
sovereign immunity exists, then the court lacks both personal and subject matter
jurisdiction to hear the case and must enter an order of dismissal.” de Sanchez v.
Banco Cent. De Nicaragua, 770 F.2d 1385, 1389 (5th Cir. 1985). We also review
de novo the applicability of the act of state doctrine to Mezerhane’s claims against
Venezuela. See Glen v. Club Méditerranée, S.A., 450 F.3d 1251, 1253 (11th Cir.
2006).
II. The Foreign Sovereign Immunities Act
Mezerhane asserted federal jurisdiction over Venezuela, and its
instrumentalities SUDEBAN and FOGADE, through the FSIA, §§ 1602-11. The
FSIA is “the sole basis for obtaining jurisdiction over a foreign state in our courts.”
Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989).
The Act provides that “a foreign state is immune from the jurisdiction of the
United States unless an FSIA statutory exemption is applicable.” Calzadilla v.
Banco Latino Internacional, 413 F.3d 1285, 1286 (11th Cir. 2005) (citation and
internal quotation marks omitted); accord 28 U.S.C. § 1604. Accordingly, if no
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statutory exception applies, the district court lacks subject matter jurisdiction.
Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 489 (1983); S & Davis
Int’l, Inc. v. The Republic of Yemen, 218 F.3d 1292, 1300 (11th Cir. 2000).
Mezerhane argues that defendants should be denied immunity here because
this case does fall within an exception to the FSIA’s general grant of immunity. He
relies on 28 U.S.C. § 1605(a)(3), which provides that immunity does not apply in
any case “in which rights in property taken in violation of international law are in
issue.” 2
Mezerhane argues that the alleged confiscations violated treaty-based
“human rights law” and thus violated international law under 28 U.S.C.
§ 1605(a)(3). He cites four treaties—the American Convention on Human Rights
(“the American Convention”); the U.N. Convention on the Status of Refugees; the
Treaty of Peace, Friendship, Navigation and Commerce between the United States
2
The entire subsection reads:
(a) A foreign state shall not be immune from the jurisdiction of courts of
the United States…in any case—
(3) in which rights in property taken in violation of international
law are in issue and that property or any property exchanged for such
property is present in the United States in connection with a commercial
activity carried on in the United States by the foreign state; or that
property or any property exchanged for such property is owned or
operated by an agency or instrumentality of the foreign state and that
agency or instrumentality is engaged in a commercial activity in the
United States….
28 U.S.C. § 1605(a)(3).
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and Venezuela; and the 1954 Convention Relating to the Status of Stateless
Persons—for his argument that taking his property violated international law. 3
Mezerhane relies primarily on Article 21 of the American Convention,
which provides that “[n]o one shall be deprived of his property except upon
payment of just compensation,” to argue that the Convention prohibits the takings
of his property. Organization of American States, American Convention on Human
Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123, art. 21. Mezerhane
conceded at argument, however, that the American Convention is not self-
executing. In fact, although the United States signed the American Convention in
1969, the Senate never ratified it. See Flores v. S. Peru Copper Corp., 414 F.3d
233, 258 (2d Cir. 2003) (“[T]he United States has declined to ratify the American
Convention for more than three decades. . . .”).
Mezerhane also cites Article 13 of the U.N. Convention on the Status of
Refugees as support for his argument that the taking violated international law.
U.N. Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S.
150, art. 13. Even if Mezerhane were a refugee, the Convention governs the
conduct of his host country, the United States, not of the country fled, Venezuela.
Mezerhane has made no allegation of mistreatment by the United States. Finally,
Mezerhane cites the Treaty of Peace, Friendship, Navigation and Commerce to
3
Mezerhane cites the 1954 Convention Relating to the Status of Stateless Persons in
connection with his statelessness argument, which we address in the next section.
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argue that it entitles him to the same treatment in court as a U.S. citizen would
receive, but this treaty requires that the two countries not violate the rights of “each
other[’s]” citizens; it does not address Venezuela’s actions against its own citizens.
Treaty of Peace, Friendship, Navigation and Commerce, U.S.-Venez., Jan. 20,
1836, 8 Stat. 466, art.13.
To date, the Eleventh Circuit has never held that the exception to sovereign
immunity set out in 28 U.S.C. § 1605(a)(3) is triggered by human rights treaty-
based allegations, and we decline to do so here. If successful, Mezerhane’s
argument would significantly extend the FSIA exception and open the courts of
this country to suits involving takings abroad by foreign governments that have
little or no nexus to the United States.
The Fifth Circuit previously ruled on the scope of 28 U.S.C. § 1605(a)(3) in
de Sanchez. 770 F.2d at 1395. The court held that no violation of international law
occurred where Nicaragua placed a stop-payment order on a check payable to a
Nicaraguan citizen because the order affected only a foreign country’s own
national. Id. In doing so, the Fifth Circuit applied a long-standing rule that closes
the doors of American courts to international-law claims based on a foreign
country’s domestic taking of property. See United States v. Belmont, 301 U.S. 324,
332 (1937) (“What another country has done in the way of taking over property of
its nationals, and especially of its corporations, is not a matter for judicial
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consideration here.”). De Sanchez reaffirmed the vitality of this so-called domestic
takings rule: “[w]ith a few limited exceptions, international law delineates
minimum standards for the protection only of aliens; it does not purport to interfere
with the relations between a nation and its own citizens.” de Sanchez, 770 F.2d at
1395.
More recently, in FOGADE v. ENB Revocable Trust, our own court cited de
Sanchez with approval in noting that “[a]s a rule, when a foreign nation confiscates
the property of its own nationals, it does not implicate principles of international
law.” 263 F.3d 1274, 1294 (11th Cir. 2001). At their core, such claims simply are
not international. See id; accord Beg v. Islamic Republic of Pakistan, 353 F.3d
1323, 1328 n.3 (11th Cir. 2003) (stating that “[i]nternational law prohibits
expropriation of alien property without compensation, but does not prohibit
governments from expropriating property from their own nationals without
compensation”).
Although de Sanchez did not address the specific treaties mentioned by
Mezerhane, the Fifth Circuit did discuss how the “violation of international law”
exception in the FSIA pertains to human rights law:
The international human rights movement is premised on the belief
that international law sets a minimum standard not only for the
treatment of aliens but also for the treatment of human beings
generally. Nevertheless, the standards of human rights that have been
generally accepted—and hence incorporated into the law of nations—
are still limited. They encompass only such basic rights as the right
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not to be murdered, tortured, or otherwise subjected to cruel, inhuman
or degrading punishment; the right not to be a slave; and the right not
to be arbitrarily detained. At present, the taking by a state of its
national’s property does not contravene the international law of
minimum human rights.
Id. at 1397 (citations omitted). Thus, de Sanchez adopted a limited view of the
rights protected under the 28 U.S.C. § 1605(a)(3) exception to FSIA immunity and
refused to apply the exception to a foreign state’s taking of the property of one of
its own nationals.
Mezerhane argues that in the thirty years since de Sanchez international
human rights law has developed such that international takings now fall within the
exception to sovereign immunity found in 28 U.S.C. § 1605(a)(3). As an initial
matter, we note that the four treaties cited by Mezerhane predate de Sanchez and
FOGADE and thus cannot qualify as new developments that undermine the
domestic takings rule articulated in those cases. 4 Moreover, as we explain below,
the trend in recent Supreme Court cases, if anything, tends to undercut his
argument: it signals the Supreme Court’s reluctance to allow international law
claims based on occurrences between foreign citizens on foreign soil to proceed in
U.S. courts. Allowing Mezerhane’s claim to proceed would move in the contrary
direction; it would broadly expand the availability of U.S. courts to resolve cases
4
The American Convention was signed by the United States in 1969 and by Venezuela in
1977. Nov. 22, 1969, 1144 U.N.T.S. 123. The U.N. Convention Relating to the Status of
Refugees was signed in 1951. U189 U.N.T.S. 150. The Treaty of Peace, Friendship, Navigation
and Commerce between the United States and Venezuela dates back to 1836. 8 Stat. 466.
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arising from events taking place exclusively on foreign soil and with a nexus to the
United States that is at best marginal.
In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court
emphasized that “[i]t is one thing for American courts to enforce constitutional
limits on our own State and Federal Governments’ power, but quite another to
consider suits under rules that would go so far as to claim a limit on the power of
foreign governments over their own citizens, and to hold that a foreign government
or its agent has transgressed those limits.” 542 U.S. at 727 (citing Banco Nacional
de Cuba v. Sabbatino, 376 U.S. 398 (1964)); see also Kiobel v. Royal Dutch
Petroleum Co., 133 S. Ct. 1659, 1664 (2013) (“Indeed, the danger of unwarranted
judicial interference in the conduct of foreign policy is magnified in the context of
the [Alien Tort Statute], because the question is not what Congress has done but
instead what courts may do.”).
In any event, under the domestic takings rule, Mezerhane’s allegations of
takings do not constitute a “violation of international law” for purposes of the
FSIA exception in 28 U.S.C. § 1605(a)(3) and thus Venezuela, SUDEBAN, and
FOGADE are entitled to sovereign immunity from suit under the FSIA.
III. Statelessness
In an attempt to avoid the domestic takings rule, Mezerhane argues that he
has effectively been stripped of his citizenship and that he is de facto stateless. He
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cites to the 1954 Convention Relating to the Status of Stateless Persons and relies
on cases arising from Nazi Germany’s treatment of Holocaust victims to argue that
Venezuela’s actions are international in character and thus subject to international
law.
Even if we were to accept that Mezerhane was de facto stateless, the FSIA
exception to sovereign immunity found in § 1605(a)(3) does not apply to his
claims because his claims do not implicate multiple states—they relate entirely to
Venezuela. We note with approval the Fifth Circuit’s statement in de Sanchez that
“[i]njuries to individuals have been cognizable only where they implicate two or
more different nations: if one state injures the national of another state, then this
can give rise to a violation of international law since the individual’s injury is
viewed as an injury to his state.” 770 F.2d. at 1396.
Attempting to sidestep the single-nation problem in this case, Mezerhane
cites cases in the aftermath of Nazi Germany to argue that courts have allowed
suits to proceed under § 1605(a)(3) where Jewish Holocaust victims brought
claims against their countries. These cases are distinguishable, however, because
they all involved the taking of property in the context of genocide. For example, in
the Holocaust claim case of Abelesz v. Magyar Nemzeti Bank, the Seventh Circuit
acknowledged that “[the rule] that a so-called ‘domestic taking’ cannot violate
international law, has been recognized and applied in many decisions in U.S.
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courts” and noted that “[i]f we were dealing with claims of only expropriation of
property, as was true in almost all of the cited cases, we would agree and would
apply the domestic takings [rule] here.” 692 F.3d 661, 674 (7th Cir. 2012). That
court, however, concluded that, because plaintiffs alleged that the expropriation of
property was “an integral part of the genocidal plan to depopulate Hungary of its
Jews,” id. at 675, the taking violated international norms against genocide, and
thus violated international law, id. at 676. Similarly, in de Csepel v. Republic of
Hungary, the D.C. district court noted the “extraordinary facts” of the case as it
described the conditions to which Jews were subjected in Hungary, including
“forced labor inside and outside Hungary, and ultimately genocide.” 808 F. Supp.
2d 113, 129-30 (D.D.C. 2011), rev’d in part on other grounds, 714 F.3d 591 (D.C.
Cir. 2013).
Mezerhane points to no “extraordinary facts” that make his case comparable
to those of Holocaust victims. The cases on which Mezerhane relies arose in the
unique context of a mass genocide perpetrated by Nazi Germany. They do not
apply to Mezerhane’s claims, which involve no such allegations, and therefore do
not provide a ground to exempt Mezerhane’s case from the domestic takings rule.
IV. The Act of State Doctrine
Even if defendants were not entitled to sovereign immunity under the FSIA,
the act of state doctrine also bars Mezerhane’s suit. The act of state doctrine, “is a
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judicially-created rule of decision that ‘precludes the courts of this country from
inquiring into the validity of the public acts a recognized foreign sovereign power
committed within its own territory.’” Glen, 450 F.3d at 1253 (quoting Banco
Nacional de Cuba v. Sabbatino, 376 U.S. 398, 401 (1964)). Adopted for reasons
of comity, it forbids U.S. courts from adjudicating the acts of a foreign sovereign
in its own territory. See Underhill v. Hernandez, 168 U.S. 250, 252 (1897). “Every
sovereign state is bound to respect the independence of every other sovereign state,
and the courts of one country will not sit in judgment on the acts of the government
of another, done within its own territory.” Id.Mezerhane argues that the Second Hickenlooper Amendment exempts his
takings case from the act of state doctrine. Enacted to overrule, in part, the
Sabbatino decision, Fogade, 263 F.3d at 1293, the Amendment states in relevant
part that:
no court in the United States shall decline on the ground of the federal
act of state doctrine to make a determination on the merits giving
effect to the principles of international law in a case in which a claim
of title or other right to property is asserted by any party . . . based
upon (or traced through) a confiscation or other taking . . . by an act of
that state in violation of the principles of international law . . . .
22 U.S.C. § 2370(e)(2) (emphasis added). Interpreting the Second Hickenlooper
Amendment in FOGADE, we held that the Amendment overruled Sabbatino only
to the extent that the latter held that the act of state doctrine would apply even
when a foreign state had violated international law. 263 F.3d at 1293. Yet, as noted
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supra, FOGADE concluded that a foreign nation’s confiscation of the property of
one of its own nationals does not, as a rule, constitute a violation of international
law, id. at 1294, and therefore “the Second Hickenlooper Amendment does not
preclude application of the act of state doctrine.” 263 F.3d at 1295. The same is
true here.
Mezerhane argues that the confiscation of his property violated international
treaties and therefore “violat[ed . . .] principles of international law” for purposes
of the Second Hickenlooper Amendment. 22 U.S.C. § 2370(e)(2). However, to
apply the act of state doctrine consistently with the FSIA—a reading supported by
the similarity of the language in 28 U.S.C. § 1605(a)(3) and 28 U.S.C. § 2370—a
“violation of the principles of international law” must be interpreted in the same
way in both provisions. In Part II of this opinion, we concluded that a violation of a
treaty is not a violation of international law for FSIA purposes and we reach the
same conclusion for the act of state doctrine.
In conclusion, notwithstanding the Second Hickenlooper Amendment,
because in this case a foreign plaintiff is protesting a taking by a foreign sovereign
that took place outside of the United States, the act of state doctrine bars a U.S.
court from questioning the sovereign’s act. Therefore, both that doctrine and the
inapplicability of the statutory exception to sovereign immunity found in 28 U.S.C.
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§ 1605(a)(3) preclude our review of plaintiff’s claim that the government of
Venezuela wrongfully expropriated his property.
CONCLUSION
For the reasons stated above, we affirm the district court’s dismissal of
Mezerhane’s complaint.
AFFIRMED.
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