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1 No IN THE Supreme Court of the United States NELSON J. MEZERHANE, v. Petitioner, REPÚBLICA BOLIVARIANA DE VENEZUELA, FONDO DE PROTECCIÓN SOCIAL DE LOS DEPÓSSITOS BANCARIOS, AND SUPERINTENDENCIA DE LAS INSTITUCIONES DEL SECTOR BANCARIO, Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF OF REPÚBLICA BOLIVARIANA DE VENEZUELA IN OPPOSITION THOMAS B. WILNER Counsel of Record NEIL H. KOSLOWE SHEARMAN & STERLING LLP 801 Pennsylvania Avenue, N.W. Washington, D.C (202) thomas.wilner@shearman.com December 1, Attorneys for Respondent República Bolivariana De Venezuela A (800) (800)

2 i QUESTION PRESENTED Should this Court, where there is no conflict among the Circuits or with any decision of this Court, take certiorari to consider whether human rights treaties override the decades-old domestic taking rule, thereby creating a new exception to sovereign immunity under the Foreign Sovereign Immunities Act, 28 U.S.C. 1605(a)(3) and the Act of State doctrine that would open U.S. courts as a forum for the adjudication of compensation claims by foreign nationals against their governments over takings of property located entirely within the borders of those foreign governments?

3 ii TABLE OF CONTENTS Page QUESTION PRESENTED i TABLE OF CONTENTS ii TABLE OF CITED AUTHORITIES iii INTRODUCTION AND SUMMARY STATEMENT OF THE CASE I. The Facts II. The District Court s Decision III. The Eleventh Circuit s Decision REASONS FOR DENYING THE PETITION I. The Lower Courts Have Applied the Domestic Takings Rule Uniformly II. The Eleventh Circuit s Decision is Manifestly Correct CONCLUSION

4 iii TABLE OF CITED AUTHORITIES CASES Page Abelesz v. Magyar, 692 F.3d 661 (7th Cir. 2012) Anderman v. Federal Republic of Austria, Civ. A. No FMC (AIJx) (C.D. Cal. Jan. 7, 2002) de Sanchez v. Banco Cent. de Nicaragua, 770 F.2d 1385 (5th Cir. 1985) , 15, 16, 17 Helmerich & Payne Int l Drilling Co. v. Bolivarian Republic of Venezuela, 784 F.3d 804 (D.C. Cir. 2015) Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct (2013) , 13 Permanent Mission of India to the United States v. City of New York, 551 U.S. 193 (2007) Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) passim United States v. Belmont, 301 U.S. 324 (1937)

5 iv Cited Authorities STATUTES AND OTHER AUTHORITIES Page 28 U.S.C et seq passim 28 U.S.C , 12, U.S.C. 1605(a)(3) passim 22 U.S.C. 2370(e)(2) Sup Ct. R , 10 Bolivarian Républic of Venezuela Constitution A rticle Bolivarian Républic of Venezuela Constitution A rticle Bolivarian Républic of Venezuela C onstitution Article , 17 Bolivarian Républic of Venezuela Constitution Article , 17

6 1 INTRODUCTION AND SUMMARY The petition for a writ of certiorari should be denied because petitioner has failed to present any compelling reasons for its grant. See Supreme Court Rule 10. Petitioner does not contend that the decision below of the Eleventh Circuit creates a conflict with decisions of this Court or any other court. Nor does petitioner contend that the Eleventh Circuit decided an important federal question that has not been settled by this Court. At most, petitioner submits that [t]his case raises a question of statutory construction (Pet. 13). That is not a sufficient basis for further review by this Court. Petitioner claims that the lower courts need guidance from this Court as to whether they should abandon the domestic taking rule as applied by the Eleventh Circuit in this case (Pet. 14). Under that rule, the lower courts repeatedly have held, as did the district court and the Eleventh Circuit below, that the taking by a foreign government of property of its own nationals located within its own territory does not violate international law within the meaning of the Foreign Sovereign Immunities Act (the FSIA ), 28 U.S.C. 1605(a)(3), or the Act of State doctrine. Specifically, petitioner argues that this case is the ideal vehicle for the Court to embark on a radical departure from existing case law and consider whether U.S. courts should exercise jurisdiction over suits challenging the power of foreign governments to expropriate the property of their own nationals in their own territory when they allegedly have engaged in human rights violations contrary to universally accepted principles (Pet. 18, 21).

7 2 However, this Court in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) gave the lower courts all the guidance they need against such an undertaking. It held that that the Alien Tort Statute, 28 U.S.C ( ATS ), which confers jurisdiction over claims of a tort committed in violation of the law of nations or a treaty of the United States, did not confer jurisdiction over a claim of arbitrary detention, even though the International Covenant on Civil and Political Rights, a treaty that was signed by and is binding on the United States, proscribes arbitrary detention. The Court narrowly construed the phrase law of nations or a treaty of the United States to mean the very few definable, universal and obligatory international norms, of which it concluded arbitrary detention was not one. Sosa, 542 U.S. at The Court issued a stern warning against attempts by federal courts to craft remedies for the violation of new norms of international law would raise risks of foreign policy consequences and should be undertaken, if at all, with great caution. Id. at Accord, Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1664 (2013). Moreover, this case is not an appropriate vehicle for review. First, petitioner s question is not cleanly presented because there are disputed predicate issues which the Eleventh Circuit resolved against petitioner, such as the scope of the protections (if any) provided by the human rights treaties upon which he relied and the status of his nationality at the time of the alleged confiscation. Those issues pretermit consideration of the question petitioner presents. Second, petitioner s question is incredibly broad. It calls upon the Court to examine not only whether the domestic taking rule may be overridden by the violation of a human rights treaty but also whether it may overridden by the violation of a norm of customary international law and as part of a campaign to undermine freedom

8 3 of expression and of the press (Pet. 13, 18). Those issues were not even addressed, much less decided, by the Eleventh Circuit. At the very least, those issues warrant further percolation in the lower courts so they may be refined before this Court considers them. Finally, no court has expressed any interest in, much less support for, petitioner s contention that this Court should overrule the domestic taking rule. Such a step would reverse decades of consistent precedent and open U.S. courts to a flood of litigation by foreign nationals challenging not only takings by foreign governments in their own territories of property owned by their own nationals but also a limitless number of alleged human rights abuses. There is no reason for the Court to consider such an extreme step. I. The Facts STATEMENT OF THE CASE Petitioner describes himself as an emblematic entrepreneur in Venezuela s financial community with significant holdings in the real estate and banking sectors and ownership interests in a national newspaper and a television channel with a national viewership. 1 Petitioner was named Businessman of [the] Year in Venezuela in The facts recited in this Statement are drawn from the complaint, which was assigned Docket Entry number 1 ( DE 1 ) in the district court and is followed by the page number(s) of that document. The first cited facts are found at DE 1: Id.

9 4 Petitioner alleges that, between June 14, 2010, and September 23, 2010, his Venezuelan property was confiscated without compensation in Venezuela by the República Bolivariana de Venezuela ( Venezuela ), and that the confiscations were implemented by respondents Superintendencia de las Instituciones del Sector Bancario ( SUDEBAN ) and Fondo de Proteccíon Social de los Depósitors Bancarios ( FOGADE ). 3 Petitioner alleges that the reason for the alleged confiscations was his political opposition to the administration of the late President of Venezuela, Hugo Rafael Chávez. 4 Petitioner claims he suffered damages in excess of $1 billion as a result of these confiscations. 5 According to petitioner, his citizenship status was substantively denied by Venezuela prior to any of the expropriations here detailed. 6 Petitioner alleges that he is stateless. 7 However, petitioner does not allege that he was a national or citizen of a state other than Venezuela at the time of the alleged confiscations of his property. 3. DE 1:22-29, Id. at 16, Id. at Id. at 22. In his Statement of the Case, petitioner asserts that he fled Venezuela to Miami before the expropriations occurred in Pet. 3. However, nothing in the complaint supports this assertion. In his opening brief in the court of appeals, petitioner s counsel said petitioner was granted political asylum status by the United States on November 25, 2013 (Opening Brief for Appellant at 14). 7. Id. at 5.

10 5 Furthermore, petitioner does not allege that he renounced his Venezuelan nationality or that his exercise of citizenship was suspended by any judicial decision in Venezuela. Under Article 35 of the Constitution of the Bolivarian Républic of Venezuela, Venezuelans by birth cannot be deprived of their nationality, and under Article 42, [t]he exercise of citizenship or any political rights can be suspended only by final judicial decision in the cases provided by law. Under Articles 36 and 42 of the V enezuelan Constitution, the only way a Venezuelan can lose Venezuelan nationality or citizenship is by renouncing his or her Venezuelan nationality. Article 34 o f the Venezuelan Constitution provides that Venezuelan nationality is not lost even if a person elects or acquires nationality in another country. II. The District Court s Decision On respondents motions, the district court dismissed petitioner s complaint on two grounds. First, the district court held that it lacked subject matter jurisdiction under the Foreign Sovereign Immunities Act ( the FSIA ), 28 U.S.C et seq. Pet. App. 27a-33a. Second, it held that, for prudential reasons under the Act of State doctrine, it should not inquire into Venezuela s alleged confiscations. Id. 33a-34a. With regard to the jurisdictional question, the district court observed that, under the FSIA, a foreign state shall be immune from the jurisdiction of U.S. courts over all claims unless they fall within one of the FSIA s enumerated exceptions. Pet. App. 28a-29a. Petitioner contended that his claims fell within the FSIA exception codified at 28 U.S.C. 1605(a)(3), which provides that a

11 6 foreign state is not immune from the jurisdiction of U.S. courts in any case in which, among other things, rights in property taken in violation of international law are in issue. Id. 30a. The district court held that petitioner s property was not taken in violation of international law because, under the domestic taking rule, international law does not prohibit governments from taking the property of their own nationals without compensation. Id. 31a. The district court considered but rejected petitioner s argument that the domestic taking rule should not apply to him because he was stateless. Pet. App. 32a. It reasoned that 28 U.S.C. 1605(a)(3) requires a plaintiff to have held a specific foreign nationality at the time of the alleged taking, and that petitioner did not allege that he was a national of any state other than Venezuela at the time of the confiscations by Venezuela. Id. Therefore, the district court concluded that the confiscations were a purely domestic affair, to be resolved within the confines of the nation itself. Id. Although the district court was aware of cases holding that the exception in 28 U.S.C. 1605(a)(3) applied to confiscations of property owned by Jewish victims of the Holocaust, it noted that the citizenship of those victims had been revoked or formally seized by the victims own governments as part of a campaign of genocide, and that no such thing had happened to petitioner. Id. 33a. Turning to the Act of State doctrine, the district court observed that the doctrine cautions U.S. courts from interfering with the sovereign acts of foreign states commenced within their own borders and requires that the acts of foreign sovereigns taken within their

12 7 own jurisdictions shall be deemed valid. Pet. App. 33a, 34a. The district court held that the Act of State doctrine applied in this case because the confiscation was not done in violation of international law given that when a foreign nation confiscates the property of its own nationals, it does not implicate principles of international law. Id. 34a. The district court concluded that, [i]t is not within this Court s domain to question the legal validity and prudence of the Venezuelan Government s judicial proceedings however illegitimate to Plaintiff in the expropriation of Mezerhane s property. Id. III. The Eleventh Circuit s Decision On appeal, a unanimous panel of the Eleventh Circuit affirmed. Pet. App. 1a-16a. The Eleventh Circuit agreed with the district court that petitioner s claims were barred for lack of subject matter jurisdiction under the FSIA and for prudential reasons under the Act of State doctrine. Id. 6a-16a. The Eleventh Circuit initially addressed petitioner s argument that his claims were not barred by the FSIA because the alleged confiscations violated treaty-based human rights law and thus violated international law under 28 U.S.C. 1605(a)(3). Pet. App. 7a. The Eleventh Circuit analyzed each of the treaties upon which petitioner relied and found they did not provide legal protection to petitioner. Id. 8a. Thus, the Eleventh Circuit pointed out that Article 21 of the American Convention on Human Rights, which provides that [n]o one shall be deprived of his property except upon payment of just compensation, is not self-

13 8 executing and the Senate never ratified it. Pet. App. 8a. Next, the Eleventh Circuit noted that Article 13 of the U.N. Convention on the Status of Refugees did not govern the conduct of Venezuela, from which petitioner fled, but of the United States, his new host country whose conduct he did not challenge. Id. Finally, the Eleventh Circuit observed that the Treaty of Peace, Friendship, Navigation and Commerce does not address Venezuela s actions against its own citizens. Id. Beyond the inapplicability of these three treaties, the Eleventh Circuit added that it had never held that the FSIA exception in 28 U.S.C. 1605(a)(3) is triggered by human rights treaty-based allegations, and we decline to do so here. Pet. App. 9a. It said: [i]f 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. Id. The Eleventh Circuit then agreed with the district court that petitioner s claims were barred by the domestic taking rule, which it described as the long-standing rule that closes the doors of American courts to internationallaw claims based on a foreign country s domestic taking of property. Pet. App. 9a. At their core, said the Eleventh Circuit, such claims simply are not international. Id. 10a. The Eleventh Circuit was not persuaded by petitioner s contention that the domestic taking rule should be abandoned in light of alleged developments in international human rights law. Pet. 11a. It noted that the human rights treaties upon which petitioner relied pre-dated courts of appeals decisions upholding the domestic taking rule,

14 9 so they could not be considered new developments. Id. Moreover, the Eleventh Circuit cited the trend in recent Supreme Court cases, which 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. Id. 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 arising from events taking place exclusively on foreign soil and with a nexus to the United States that is a best marginal. Id. The Eleventh Circuit rejected petitioner s effort to avoid the domestic taking rule on the ground that he has effectively been stripped of his citizenship and that he is de facto stateless and entitled to the protections of the 1954 Convention Relating to the Status of Stateless Persons. Pet. App. 12a. It reasoned that, [e]ven 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. Id. 13a. Like the district court, the Eleventh Circuit also rejected petitioner s attempt to sidestep the single-nation problem in this case by relying on cases involving Jewish victims of the Holocaust. Id. It distinguished those cases because they arose in the unique context of a mass genocide perpetrated by Nazi Germany, and they do not apply to Mezerhane s claims, which involve no such allegations. Id. 14a. Finally, the Eleventh Circuit agreed with the district court that the act of state doctrine also bars Mezerhane s suit. Pet. App. 14a. The Eleventh

15 10 Circuit acknowledged that, under the so-called Second Hickenlooper Amendment, 22 U.S.C. 2370(e)(2), the Act of State doctrine does not bar consideration by U.S. courts of a claim that a foreign government confiscated property in violation of international law. Id. 15a. However, interpreting the Second Hickenlooper Amendment s reference to a violation of international law as it had interpreted 28 U.S.C. 1605(a)(3) s reference to such a violation, the Eleventh Circuit held that Venezuela s alleged domestic confiscation of petitioner s property did not constitute a violation of international law within the meaning of either and, therefore, should not be adjudicated by U.S. courts. Id. 16a. REASONS FOR DENYING THE PETITION The Eleventh Circuit s decision is a routine application of the venerable domestic taking rule and the Act of State doctrine to the particular facts of this case. It does not conflict with any decision of this Court or the courts of appeals, and it does not implicate an important federal question that has not been decided by this Court. It is also manifestly correct. Therefore, petitioner has not carried his burden of demonstrating any compelling reasons for the petition to be granted. See Supreme Court Rule 10. I. The Lower Courts Have Applied the Domestic Takings Rule Uniformly Far from applying the domestic taking rule haphazardly and unevenly, as petitioner erroneously contends (Pet. 14), the lower courts have applied it properly and uniformly. Petitioner does not cite a single district court decision or court of appeals opinion expressing

16 11 difficulty or frustration with the domestic taking rule, questioning its application by other courts, or calling for guidance from this Court. To be sure, the courts have recognized that the domestic taking rule does not bar the exercise of federal jurisdiction under 28 U.S.C. 1605(a)(3) in all cases involving confiscations of property. For example, as petitioner notes (Pet. 15), the Seventh Circuit held in Abelesz v. Magyar, 692 F.3d 661 (7 th Cir. 2012) that the domestic taking rule did not bar the exercise of federal jurisdiction over a suit brought by Jewish victims of the Holocaust whose property was expropriated. But that was not because the Seventh Circuit questioned the rule or sought to change it. Rather, it was because the Holocaust victims alleged that the expropriation of their property was an integral part of the genocidal plan to depopulate Hungary of its Jews. Abelesz, 692 F.3d at 674. Genocide indisputably is a violation of international law. Therefore the domestic taking rule was a subordinate point in that case. 8 Petitioner s argument that this Court should grant his petition because the courts generally have applied the domestic taking rule in a commercial context, and this is the only case in which the rule has been applied in the context of an alleged violation of an individual s 8. In contrast, a divided panel of the D.C. Circuit held in Helmerich & Payne Int l Drilling Co. v. Bolivarian Republic of Venezuela, 784 F.3d 804 (D.C. Cir. 2015) that discriminatory takings are excepted from the domestic taking rule. Because that holding creates an exception to the rule itself and conflicts with decisions of other courts of appeals, Venezuela has petitioned for a writ of certiorari in that case.

17 12 rights (Pet ), is groundless. First, as the Eleventh Circuit pointed out (Pet. App. 10a), the Fifth Circuit in de Sanchez v. Banco Cent. de Nicaragua, 770 F.2d 1385, 1397 (5 th Cir. 1985) rejected the proposition that the taking by a foreign government of property owned by an individual who was a national of that government contravened the international law of minimum human rights. Second, petitioner has not offered any persuasive reason why the domestic taking rule should be applied differently with respect to individual property owners than with respect to commercial property owners. Petitioner also is wrong in contending that the Court should grant its petition because the Eleventh Circuit s holding, that a foreign government does not violate international law within the meaning of 28 U.S.C. 1605(a) (3) by domestic actions that affect only its own nationals, is anachronistic and flatly inconsistent with universally accepted developments in human rights law. Pet. 21. This Court saw nothing anachronistic about such a viewpoint in Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004). In Sosa, this Court rejected plaintiff s argument that his claim of arbitrary detention was cognizable in federal court under the Alien Tort Statute, 28 U.S.C ( ATS ). The ATS confers jurisdiction over claims of a tort committed in violation of the law of nations or a treaty of the United States, and plaintiff alleged that his arbitrary detention violated the International Covenant on Civil and Political Rights. Although the Court acknowledged that this treaty was signed by and binding upon the United States, it concluded that this did not establish the relevant and applicable rule of international law for purposes of jurisdiction under the ATS. 542 U.S. at 735. Rather, the

18 13 Court held that only violations of definable, universal and obligatory international norms are cognizable under the ATS, and that arbitrary detention was not one of those. Id Moreover, the Court in Sosa cautioned 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. Sosa, 542 U.S. at 727. Well aware that proponents of expanding international law to encompass an undefined variety of human rights protections might call for the vindication of such protections in federal court under the ATS, the Court admonished that attempts by federal courts to craft remedies for the violation of new norms of international law would raise risks of foreign policy consequences and should be undertaken, if at all, with great caution. Id. at The implications of a broader approach would be breathtaking. Id. at 736. See also Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1664 (2013). Finally, this case is not the ideal vehicle to address the question presented, as petitioner contends (Pet. 21). First, the petitioner s question is not cleanly presented because the Eleventh Circuit held that the human rights treaties upon whose provisions he relies do not give him any legal protection against confi scations of property without compensation. If the Eleventh Circuit s holding is correct, the question presented by petitioner need not be reached at all.

19 14 Second, petitioner s question broadly calls upon the Court to examine whether the domestic taking rule may be overridden by the violation of a norm of customary international law and as part of a campaign to undermine freedom of expression and of the press (Pet. 13, 18). Those issues were not addressed or decided by the Eleventh Circuit. At the very least, those issues warrant analysis in the lower courts so they may be refined before this Court is asked to consider them. Third, the decisions below have limited impact because they affect the rights of only one, very wealthy entrepreneur. That makes this case a poor candidate for review by this Court. II. The Eleventh Circuit s Decision is Manifestly Correct Further review is unwarranted for the additional reason that the Eleventh Circuit s decision is manifestly correct. In Permanent Mission of India to the United States v. City of New York, 551 U.S. 193, 199 (2007), this Court pointed out that there are two well-recognized and related purposes of the FSIA: adoption of the restrictive view of sovereign immunity and codification of international law at the time of the FSIA s enactment. The Eleventh Circuit s decision is consistent with both those purposes. First, the restrictive view of sovereign immunity protects the absolute immunity of foreign nations with regard to sovereign or public acts. Permanent Mission, 551 U.S. at 199. Venezuela s alleged confiscation of petitioner s property was a sovereign or public act.

20 15 Therefore, the Eleventh Circuit s decision, sustaining Venezuela s immunity against petitioner s confiscation claims, furthers an important purpose of the FSIA. Second, at the time of the FSIA s enactment in 1976, the taking by a foreign nation in its own territory of property owned by its own nationals was not a violation of international law. In the words of the Fifth Circuit in de Sanchez, which was decided in 1985, nearly ten years after the enactment of the FSIA: 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 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. It may be foreign to our way of life and thought, but the fact is that governmental expropriation is not so universally abhorred that its prohibition commands the general assent of civilized nations, a prerequisite to incorporation in the law of nations. We cannot elevate our American-centered view of governmental

21 16 taking of property without compensation into a rule that binds all civilized nations. 770 F.2d at 1397 (emphasis added). Although petitioner believes that [t]he Fifth Circuit s decision in de Sanchez was incorrect at the time and remains so today (Pet. 30), not one court has disagreed with it. On the contrary, the Fifth Circuit s decision in de Sanchez, and the Eleventh Circuit s decision below agreeing with it, are consistent with this Court s pre- FSIA observation in United States v. Belmont, 301 U.S. 324, 332 (1937) that, [w]hat 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 consideration here. Moreover, although the Fifth Circuit in de Sanchez included the right not to be arbitrarily detained as one of the few human rights protected by international law, this Court s contrary holding in Sosa demonstrates that the trend since de Sanchez is to limit, and not expand, those human rights that are protected by international law. Consequently, the confiscation by a foreign nation within its own territory of property owned by a national of that nation is no more a violation of international law under the FSIA today than it was when de Sanchez was decided in Petitioner s alleged status as a stateless person changes nothing. 9 The Eleventh Circuit correctly agreed 9. As respondent pointed out on appeal and notes above, petitioner never alleged that he renounced his Venezuelan

22 17 with the Fifth Circuit s observation in de Sanchez that, under the FSIA, injuries to individuals are 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. de Sanchez, 770 F.2d at That is also the considered view of the United States. See Statement of Interest of the United States of America, Anderman v. Federal Republic of Austria, Civ. A. No FMC (AIJx), at 38 (C.D. Cal. Jan. 7, 2002) ( 1605(a)(3) requires a plaintiff to have held a specific foreign nationality at the relevant time, otherwise there could be no state-to-state dispute ). Thus, petitioner s alleged statelessness is self-defeating under 28 U.S.C. 1605(a)(3). For the same reasons the Eleventh Circuit was right about the Act of State doctrine. Petitioner offers no reason why the term international law in the Second Hickenlooper Amendment should be interpreted differently from that term in 28 U.S.C. 1605(a)(3). It follows that, just as the Eleventh Circuit correctly invoked the domestic taking rule to hold that Venezuela s confiscation of petitioner s property did not constitute a violation of international law within the meaning of 28 U.S.C. 1605(a)(3), it correctly held that it did not constitute a violation of international law within the meaning of the Second Hickenlooper Amendment. citizenship or that he was deprived of it by final judicial decision. Those are the only two ways a Venezuelan citizen can lose his or her citizenship under Articles 36 and 42 of the Venezuelan Constitution.

23 18 Finally, the Eleventh Circuit correctly observed that allowing petitioner s suit to go forward would broadly expand the availability of U.S. courts to resolve cases arising from events taking place exclusively on foreign soil and with a nexus to the United States that is at best marginal. Pet. App. 11a. Such a flood of litigation by foreigners seeking to have U.S. courts determine the lawfulness of actions taken by foreign governments in their own territory against their own nationals, and to award compensation for such unlawful actions, is precisely the type of breathtaking development this Court emphatically warned against in Sosa. 542 U.S. at 736. The Eleventh Circuit correctly declined to allow this. CONCLUSION The Court should deny the petition for a writ of certiorari. Respectfully submitted, THOMAS B. WILNER Counsel of Record NEIL H. KOSLOWE SHEARMAN & STERLING LLP 801 Pennsylvania Avenue, N.W. Washington, D.C (202) thomas.wilner@shearman.com Attorneys for Respondent República Bolivariana De Venezuela