Mezerhane v. República Bolivariana De Venezuela, 13–14953.

• Decision Date: 07 May 2015
• Docket Number: No. 13–14953.,13–14953.
• Citation: 785 F.3d 545
• Parties: Nelson J. MEZERHANE, Plaintiff–Appellant, v. 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.
• Court: U.S. Court of Appeals — Eleventh Circuit

785 F.3d 545

Nelson J. MEZERHANE, Plaintiff–Appellant

v.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.

No. 13–14953.

United States Court of Appeals, Eleventh Circuit.

May 7, 2015.

William Aaron Daniel, Kula & Samson, LLP, Aventura, FL, Elliot Burt Kula, Kula & Associates, PA, North Miami, FL, Pedro J. Martinez–Fraga, Clement Ryan Reetz, Bryan Cave, LLP, Miami, FL, for Plaintiff–Appellant.

Neil Harris Koslowe, Potomac Legal Group, PLLC, Silver Spring, MD, Jose Pertierra, The Law Office of Jose Pertierra, Thomas B. Wilner, Shearman & Sterling, LLP, Washington, DC, Helena Tetzeli, Steven Murray Weinger, Kurzban Kurzban Weinger Tetzeli & Pratt, PA, Carlos Fernando Gonzalez, Michael Diaz, Jr., Marta Colomar–Garcia, Gary Edward Davidson, Brant C. Hadaway, Diaz Reus & Targ, LLP, Miami, FL, Andrew Z. Schwartz, Richard Grant Baldwin, Foley Hoag, LLP, Boston, MA, Brian Mark Silverio, Silverio & Hall, PA, Naples, FL, for Defendants–Appellees.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:11–cv–23983–MGC.

Before HULL, JULIE CARNES, and WALKER,^* Circuit Judges.

Opinion

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.

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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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 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-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.

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, 109 S.Ct. 683, 102 L.Ed.2d 818 (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 statutory exception applies, the district court lacks subject matter jurisdiction. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 489, 103 S.Ct. 1962, 76 L.Ed.2d 81 (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 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...