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Mezerhane v. Venezuela

United States Court of Appeals, Eleventh Circuit

May 7, 2015

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 DEPROTECCIÓN 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. D.C. Docket No. 1:11-cv-23983-MGC.

For Nelson J. Mezerhane, Plaintiff - Appellant: 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 REPUBLICA BOLIVARIANA DE VENEZUELA, a sovereign nation, Defendant - Appellee: Neil Harris Koslowe, Potomac Legal Group, PLLC, Silver Spring, MD; Jose Pertierra, The Law Office of Jose Pertierra, Washington, DC; Helena Tetzeli, Steven Murray Weinger, Kurzban Kurzban Weinger Tetzeli & Pratt, PA, Miami, FL; Thomas B. Wilner, Shearman & Sterling, LLP, Washington, DC.

For SUPERINTENDENCIA DE LAS INSTITUCIONES DEL SECTOR BANCARIO, an agency or instrumentality of the Bolivarian Republic of Venezuela, Defendant - Appellee: Andrew Z. Schwartz, Richard Grant Baldwin, Foley Hoag, LLP, Boston, MA; Carlos Fernando Gonzalez, Diaz Reus & Targ, LLP, Miami, FL; Brian Mark Silverio, Silverio & Hall, PA, Naples, FL.

For FONDO DE PROTECCION SOCIAL DE LOS DEPOSITOS BANCARIOS, an agency or instrumentality of the Bolicarian Republic of Venezuela, Defendant - Appellee: Michael Diaz Jr., Marta Colomar-Garcia, Gary Edward Davidson, Carlos Fernando Gonzalez, Brant C. Hadaway, Diaz Reus & Targ, LLP, Miami, FL.

Before HULL, JULIE CARNES, and WALKER,[*] Circuit Judges.

OPINION

Page 546

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 Repú blica 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

Page 547

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 A. 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 ...


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