Helmerich & Payne International Drilling Co. v. Petroleos De Venezuela, S.A.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 1, 2025 Decided October 3, 2025

No. 24-7161

HELMERICH & PAYNE INTERNATIONAL DRILLING CO.,

APPELLEE

v.

PETROLEOS DE VENEZUELA, S.A. AND PDVSA PETROLEO,

S.A.,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-01735)

Juan O. Perla argued the cause for appellants. With him

on the briefs were David V. Holmes, Joseph D. Pizzurro, and

Kevin A. Meehan.

Matthew S. Rozen argued the cause for appellee. With him

on the brief were Miguel A. Estrada, Jeffrey Liu, and Aaron

Hauptman.

Before: MILLETT, KATSAS, and PAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge Katsas.

2

KATSAS, Circuit Judge: In 2010, Venezuela expropriated

assets of the Venezuelan subsidiary of a United States energy

company. The assets are now operated by a state-owned

Venezuelan energy company. The American company sued in

the United States and invoked the expropriation exception to

foreign sovereign immunity. The Venezuelan company moved

to dismiss based on immunity, lack of personal jurisdiction,

and the act-of-state doctrine. The district court rejected all of

these defenses and denied the motion to dismiss. We affirm

across the board.

I

A

Historically, the United States granted foreign sovereigns

“complete immunity” in its courts as “a matter of grace and

comity.” Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S.

480, 486 (1983). But as foreign governments became more

involved in commercial activity, the immunity became more

limited. In 1952, the State Department adopted a “restrictive”

view under which foreign sovereigns are generally immune for

their public, sovereign acts but not for private, commercial acts.

See id. at 486–87; Republic of Hungary v. Simon, 604 U.S. 115,

119 (2025).

The restrictive theory spawned questions about state

responsibility for taking property owned by foreign nationals.

That question was presented in Banco Nacional de Cuba v.

Sabbatino, 376 U.S. 398 (1964), which arose when Cuba

expropriated sugar belonging to a Cuban company owned by

Americans. Applying the act-of-state doctrine, the Supreme

Court refused to “examine the validity of a taking of property

within its own territory by a foreign sovereign government ...

in the absence of a treaty or other unambiguous agreement

regarding controlling legal principles, even if the complaint

3

alleges that the taking violates customary international law.”

Id. at 428. The act-of-state doctrine, which applies to the

“public acts” of foreign sovereigns “within their own borders,”

gives foreign sovereigns a “substantive defense on the merits”

rather than a jurisdictional immunity from suit. Republic of

Austria v. Altmann, 541 U.S. 677, 700 (2004); see Restatement

(Fourth) of Foreign Relations Law § 441 (2018) (Fourth

Restatement).

In response to Sabbatino, Congress enacted the Second

Hickenlooper Amendment, which prohibits courts from

applying the act-of-state doctrine “in a case in which a claim of

title or other rights to property is asserted by any party … based

upon (or traced through) a confiscation or other taking” by a

state in violation of international law. 22 U.S.C. § 2370(e)(2).

Courts and commentators broadly understood the Amendment

“to permit adjudication of claims the Sabbatino decision had

avoided—claims against foreign nations for expropriation of

American-owned property.” Federal Republic of Germany v.

Philipp, 592 U.S. 169, 179 (2021). But the Amendment did

not purport to alter what is known as the domestic-takings rule,

under which a foreign sovereign does not violate international

law by taking the property of its own nationals within its own

borders. See id. at 179–80.

Despite the Second Hickenlooper Amendment, courts

continued to struggle in applying the restrictive theory of

immunity. Many asked the Department of State to file

suggestions of immunity. See Restatement (Second) of the

Foreign Relations Law of the United States § 71(1)–(2) &

cmt. a (1965). But that proved burdensome for the Department

and produced inconsistent rulings in cases where it was not

involved. See Restatement (Third) of the Foreign Relations

Law of the United States Part IV.5.A intro. note (1987).

4

Against this backdrop, Congress enacted the Foreign

Sovereign Immunities Act (FSIA) to standardize the courts’

immunity determinations. Turkiye Halk Bankasi A.S. v. United

States, 598 U.S. 264, 272 (2023). The FSIA makes foreign

states “immune from the jurisdiction” of American courts

unless an enumerated exception applies. 28 U.S.C. § 1604.

This appeal turns on the FSIA’s expropriation exception.

B

The expropriation exception abrogates foreign sovereign

immunity in any case

in which rights in property taken in violation of

international law are in issue and [1] 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 [2] 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). The elements of the exception thus

vary depending on whether the foreign state itself, or one of its

agencies or instrumentalities, owns the unlawfully

expropriated property. When the foreign state owns it, the

property (or other property exchanged for it) must be present

in the United States in connection with commercial activity by

the foreign state. See id. (prong 1). When an agency or

instrumentality owns the expropriated property (or other

property exchanged for it), the agency or instrumentality must

be engaged in commercial activity in the United States. See id.

(prong 2). Under prong 2, it suffices to overcome immunity if

(1) the foreign state takes property in violation of international

5

law, (2) one if its agencies owns or operates the property, and

(3) that agency engages in commercial activity in the United

States.

The FSIA defines a “foreign state” to include “an agency

or instrumentality of a foreign state.” 28 U.S.C. § 1603(a). It

then defines the latter term as any entity that is a separate legal

person, is owned by the foreign state, and is neither a United

States citizen nor created under the laws of any third country.

Id. § 1603(b). Like the expropriation exception, many FSIA

provisions afford greater protection to foreign states than they

do to agencies or instrumentalities of foreign states. See, e.g.,

id. § 1606 (immunity from punitive damages); id. § 1610(b)

(attachment immunity).

II

A

Helmerich & Payne International Drilling Co., which we

call Helmerich, is a United States energy company. Helmerich

wholly owns Helmerich & Payne de Venezuela, C.A, a

Venezuelan company that we call Helmerich (Venezuela). For

decades, Helmerich (Venezuela) provided services to Petróleos

de Venezuela, S.A. (PDVSA), a Venezuelan energy company

wholly owned by the Bolivarian Republic of Venezuela.

Helmerich (Venezuela) owned various property in Venezuela,

including large rigs suitable for drilling oil and gas wells there.

In the early 2000s, the relationship between Helmerich

(Venezuela) and PDVSA soured. PDVSA began defaulting on

its contractual obligations to Helmerich (Venezuela), racking

up some $90 million in unpaid invoices for drilling services. In

2009, Helmerich announced that it would wind down its

Venezuelan operations, and Helmerich (Venezuela) began to

disassemble its rigs.

6

Conditions further deteriorated in 2010. PDVSA

employees and the Venezuelan National Guard blockaded the

drilling operations of Helmerich (Venezuela) to prevent

removal of the rigs. PDVSA issued press releases claiming to

have “nationalized 11 drilling rigs” belonging to Helmerich

(Venezuela), which it said would henceforth be “operated by

PDVSA as a company of all Venezuelans.” J.A. at 50, 54. A

PDVSA official confirmed that “[t]he workers are guarding the

drills.” Id. at 51. The Venezuelan National Assembly issued

an official declaration recommending that the property be

expropriated for the “public benefit and good.” Id. at 51, 91.

And President Hugo Chávez issued a “Decree of

Expropriation” ordering Helmerich (Venezuela) to transfer the

rigs to PDVSA under a Venezuelan “Law of Expropriation.”

Id. at 51, 100. PDVSA then began using Helmerich

(Venezuela)’s rigs and other assets to drill.

B

Helmerich and its Venezuelan subsidiary sued Venezuela

and PDVSA in our district court. They alleged that Venezuela

had unlawfully expropriated their property.

Venezuela and PDVSA moved to dismiss. The district

court denied the motion in relevant part, Helmerich & Payne

Int’l Drilling Co. v. Bolivarian Republic of Venezuela, 971 F.

Supp. 2d 49 (D.D.C. 2013) (Helmerich I), and we affirmed,

Helmerich & Payne Int’l Drilling Co. v. Bolivarian Republic

of Venezuela, 784 F.3d 804 (D.C. Cir. 2015) (Helmerich II).

We reiterated our view that the plaintiff, to trigger the FSIA’s

expropriation exception, need only state a “non-frivolous”

claim of an unlawful international expropriation. Id. at 812.

The Supreme Court rejected that standard, vacated our

decision, and remanded. Bolivarian Republic of Venezuela v.

Helmerich & Payne Int’l Drilling Co., 581 U.S. 170 (2017)

7

(Helmerich III). The Court held that the expropriation

exception applies only if a court finds “that the property in

which the party claims to hold rights was indeed property taken

in violation of international law.” Id. at 174 (cleaned up).

Applying that standard on remand, we held that Helmerich

alleged facts supporting the expropriation exception, but

Helmerich (Venezuela) did not. See Helmerich & Payne Int’l

Drilling Co. v. Bolivarian Republic of Venezuela, 743 F. App’x

442, 453–55 (D.C. Cir. Aug. 7, 2018) (Helmerich IV). We

rejected the Venezuelan subsidiary’s expropriation claim under

the domestic-takings rule, under which international law does

not govern a state’s taking of its own nationals’ property. Id.

at 448. But we concluded that Helmerich—an American

company—had stated a valid international claim keyed to the

taking of its own property. Id. at 455. We recognized two

distinct property interests underlying that claim: Helmerich’s

ownership interest in its subsidiary and its right under

Venezuelan law to control the subsidiary’s disposition of the

expropriated assets. See id.

We explained that international law recognizes a

shareholder’s ownership interest in a corporation and protects

it from direct and indirect expropriations. Helmerich IV, 743

F. App’x at 453–54. A foreign state can directly expropriate

shares by formally divesting a shareholder of them. Id. at 454.

It can also expropriate shares indirectly, by taking “measures

that have an effect equivalent to a formal expropriation.” Id.

(cleaned up). We were careful to note that “not every state

action that has a detrimental impact on a shareholder’s interests

amounts to an indirect expropriation.” Id. But we agreed with

the United States about one circumstance when an indirect

expropriation will occur:

8

[W]hen a state permanently takes over management

and control of [a foreign shareholder’s] business,

completely destroying the beneficial and productive

value of the shareholder’s ownership of their

company, and leaving the shareholder with shares that

have been rendered useless, it has indirectly

expropriated the ownership of that business and has

responsibility under customary international law to

provide just compensation to the shareholder.

Id.

Applying that test, we had “little trouble concluding” that

Helmerich adequately alleged that Venezuela had unlawfully

expropriated the “entire business” of its Venezuelan subsidiary

by taking it over and rendering Helmerich’s ownership interest

useless. Helmerich IV, 743 F. App’x at 455. We reserved

judgment on the legal validity of Helmerich’s second

expropriation theory—that PDVSA expropriated its rights

under Venezuelan law to control the assets of Helmerich

(Venezuela). Id. at 456. We remanded to the district court for

further factual and legal development of these claims. Id.

After we decided De Csepel v. Republic of Hungary, 859

F.3d 1094 (D.C. Cir. 2017), the district court dismissed

Venezuela as a defendant. De Csepel clarified that a suit

against a foreign state (as opposed to its instrumentalities) can

be maintained under the expropriation exception only if the

property taken, or property exchanged for it, is present in the

United States. See id. at 1106–07. Helmerich has not

challenged that ruling.

9

C

After jurisdictional discovery on remand, PDVSA moved

to dismiss on grounds of immunity, lack of personal

jurisdiction, and the act-of-state doctrine. The district court

denied the motion. Helmerich & Payne Int’l Drilling Co. v.

Petróleos de Venezuela, S.A., 754 F. Supp. 3d 29 (D.D.C.

2024) (Helmerich V). PDVSA appealed.

III

We begin with the question of our jurisdiction to hear this

interlocutory appeal. We have jurisdiction to review the denial

of foreign sovereign immunity under the collateral-order

doctrine. See Agudas Chasidei Chabad of U.S. v. Russian

Federation, 528 F.3d 934, 939 (D.C. Cir. 2008). And when

exercising that jurisdiction, we routinely consider pendent

claims challenging refusals to dismiss for lack of personal

jurisdiction. See, e.g., Jungquist v. Sheikh Sultan Bin Khalifa

Al Nahyan, 115 F.3d 1020, 1027 (D.C. Cir. 1997); Price v.

Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 95

(D.C. Cir. 2002).

We also have pendent appellate jurisdiction to review the

denial of PDVSA’s act-of-state defense. We may exercise such

jurisdiction, as a matter of discretion, when a “nonappealable

order is inextricably intertwined with the appealable order, or

when review of the former is necessary to ensure meaningful

review of the latter.” Harris v. Med. Transp. Mgmt., Inc., 77

F.4th 746, 765 (D.C. Cir. 2023) (cleaned up); see also Swint v.

Chambers Cnty. Comm’n, 514 U.S. 35, 51 (1995). As a merits

defense, the act-of-state doctrine does not by itself support an

interlocutory appeal. See Transamerica Leasing, Inc. v. La

Republica de Venezuela, 200 F.3d 843, 855 (D.C. Cir. 2000).

But here, the act-of-state issue is inextricably intertwined with

the sovereign-immunity issue. As the Supreme Court has made

10

clear, the act-of-state doctrine and the Second Hickenlooper

Amendment are critical to interpreting the scope of the

expropriation exception, for those provisions are linked both

textually and historically. See Simon, 604 U.S. at 132. In

particular, a common question under both the expropriation

exception and the act-of-state doctrine is whether the

expropriation violated international law. Moreover, the default

statutory immunity reflects a strong preference for resolving

threshold issues about a foreign sovereign’s susceptibility to

suit in United States courts as early as possible in the litigation.

See Process & Indus. Devs. v. Federal Republic of Nigeria, 962

F.3d 576, 581 (D.C. Cir. 2020). Although the threshold nature

of the act-of-state doctrine will not always warrant an exercise

of pendent appellate jurisdiction by itself, its close overlap with

the appealable immunity question here counsels in favor of

exercising pendent appellate jurisdiction in this case.

IV

With regard to the jurisdictional immunity and the

personal-jurisdiction questions, we review the district court’s

findings of fact for clear error. See Price v. Socialist People’s

Libyan Arab Jamahiriya, 389 F.3d 192, 197 (D.C. Cir. 2004)

(FSIA); Second Amend. Found. v. U.S. Conf. of Mayors, 274

F.3d 521, 523 (D.C. Cir. 2001) (citing U.S. Titan, Inc. v.

Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 150–51 (2d

Cir. 2001) (“The standard of review applicable to district court

decisions regarding personal jurisdiction is clear error for

factual findings.”)). We review de novo whether those facts

suffice to divest a sovereign of immunity, Price, 389 F.3d at

197, and to confer personal jurisdiction over the sovereign,

Saint-Gobain Performance Plastics Eur. v. Bolivarian

Republic of Venezuela, 23 F.4th 1036, 1040 (D.C. Cir. 2022).

11

As explained below, the question whether the act-of-state

doctrine applies in this case turns on legal questions regarding

the breadth of the Second Hickenlooper Amendment. Our

review of such legal questions is de novo. In re Rail Freight

Fuel Surcharge Antitrust Litig., 34 F.4th 1, 9 (D.C. Cir. 2022).

A

We agree with the district court that the expropriation

exception applies because (1) Venezuela indirectly took

Helmerich’s property in violation of international law, (2)

PDVSA owns and operates that property, and (3) PDVSA

engages in commercial activity in the United States. 28 U.S.C.

§ 1605(a)(3).

1

In Helmerich IV, we explained that international law

protects against the “indirect” expropriation of shareholders’

ownership interests through “measures that have an effect

equivalent to a formal expropriation … even if the state does

not formally divest the shareholder of its shares.” 743 F.

App’x at 454 (cleaned up). We held that such an indirect

expropriation occurs if a foreign state permanently takes over

“management and control” of the company and leaves its

owners “with shares that have been rendered useless.” Id.

Helmerich contends that Venezuela unlawfully took two

of its protected property interests—its ownership interest in

Helmerich (Venezuela) and its right to dispose of that

subsidiary’s assets. The district court credited both of these

allegations, as do we.

After extensive review of the evidence produced in

discovery, the district court found that Venezuela took the

“entire business” of Helmerich (Venezuela) to operate it “as a

12

state-owned enterprise.” Helmerich V, 754 F. Supp. 3d at 39.

The court carefully reviewed the official declarations and other

evidence showing that Venezuela and PDVSA forcefully

acquired the drilling rigs and other assets of Helmerich

(Venezuela). See id. at 39–40. The court looked to asset

inventories, declarations, and depositions to conclude that

Helmerich (Venezuela) no longer possessed any usable

property. See id. Thus, while that company “still exists as a

corporate legal entity, the record is clear that it no longer

engages in commercial operations.” Id. at 40. And because

Helmerich (Venezuela) no longer has any revenue-generating

business, Helmerich’s shares in its subsidiary have been

rendered worthless. See id. at 40–41. The district court thus

applied the correct legal standard, and PDVSA fails to show

that its factual determinations were clearly erroneous.

PDVSA points to Helmerich’s tax filing, which states that

Helmerich (Venezuela) retained $105 million in “assets”

beyond the value it derived from the rigs. J.A. 435. But these

were assets in name only. They included $24.3 million in

expropriated property, $42.5 million in accounts payable from

PDVSA that it had to write off, and $30.7 million housed in a

Venezuelan bank account that it could not recover. See id.; see

also id. at 1238–39 (annual report noting a loss of $70.2

million from derecognition of Venezuelan property and

equipment). These line items reflect unattainable assets or

losses. They do not disturb the conclusion that Helmerich

(Venezuela) is no longer generating any productive value.

PDVSA also argues that Helmerich continues to appoint

its subsidiary’s directors and officers, vote its shares, supervise

various legal actions, and recover on arbitration claims.

However, Helmerich appointed directors and held shareholder

meetings only to ensure compliance with Venezuelan law as it

wound down the Venezuelan subsidiary. J.A. 1433. And as

13

the district court noted, doing so did not generate any value.

Helmerich V, 754 F. Supp. 3d at 40–41. Moreover, the

arbitration recovery arose from Helmerich’s rights and was

paid to that company; it was not value that Helmerich

(Venezuela) produced.

PDVSA heavily relies on Exxon Mobil Corp. v.

Corporacion CIMEX, S.A., 111 F.4th 12 (D.C. Cir. 2024), but

it is inapposite. In Exxon, we addressed whether Cuba violated

international law by taking property owned by a Cuban

subsidiary of Exxon. See id. at 21, 27. Quoting Helmerich IV,

we noted that “under the international law of expropriation,

‘not every state action that has a detrimental impact on a

shareholder’s interests amounts to an indirect expropriation of

the shareholder’s ownership rights.’” Id. at 27 (quoting 743 F.

App’x at 454). And we reiterated Helmerich IV’s holding that

a taking destroying the productive value of a shareholder’s

ownership interest is an unlawful indirect expropriation. Id. at

28–29. In Exxon, we held that this test was not satisfied. For

starters, Exxon forfeited its argument that Cuba had destroyed

the “entire value” of its subsidiary’s operations—precisely the

claim that Helmerich presses here. Id. Additionally, Exxon’s

subsidiary continued to operate fuel stations, appeared in a

public registry’s list of businesses in good standing, and

continued to hold annual board and shareholder meetings. Id.

For these reasons, we held that there was no indirect

expropriation under Helmerich IV. See id. But the facts here,

which show that Helmerich (Venezuela) does not continue to

operate anything, are materially different.

The district court also held that PDVSA took Helmerich’s

right under Venezuelan law to control its subsidiary’s assets.

Helmerich V, 754 F. Supp. 3d at 44. PDVSA does not

challenge the merits of this ruling.

14

2

The next question is whether PDVSA owns or operates the

expropriated property. That turns on whether PDVSA

“possessed or exerted control or influence over” it. Nemariam

v. Federal Democratic Republic of Ethiopia, 491 F.3d 470, 481

(D.C. Cir. 2007). When a taking “extinguish[es]” a property

right, this requirement is not met. Id.

The district court found that PDVSA owns and operates

the business of Helmerich (Venezuela). See Helmerich V, 754

F. Supp. 3d at 44. Specifically, PDVSA “assumed operation

and control” of the business by possessing and operating its

productive assets, especially its specialized drills. See id. at

39–41, 45–46. A PDVSA official testified that he “receive[d]”

these assets, showing that PDVSA possessed and thus owned

them. Id. at 45. And PDVSA also operates the business by

exerting control over the assets—in fact, PDVSA’s President

at the time of the expropriation stated the Chávez regime “was

taking control over this drill company.” Id. at 40 (cleaned up).

Thus, the court reasoned that because PDVSA controls all

Helmerich (Venezuela)’s productive assets and uses them for

drilling, it effectively owns and operates Helmerich

(Venezuela)’s business. Id. at 44–45. Again, the court

identified the correct legal standard and did not clearly err in

applying it.

PDVSA objects that the expropriation extinguished

Helmerich’s ownership rights in its Venezuelan subsidiary.

True enough, but Venezuela did not take the assets to destroy

them. Instead, the record shows that the nationalization

transferred the assets to PDVSA, which operates them for its

own benefit. See Helmerich V, 754 F. Supp. 3d at 45–46.

The district court reached the opposite conclusion

regarding Helmerich’s right to control the disposition of these

15

assets. The court appeared to assume that the nationalization

of Helmerich (Venezuela) extinguished any property right to

control the disposition of its assets. See Helmerich V, 754 F.

Supp. 3d at 46. But the nationalization did not extinguish any

power to control the disposition of the nationalized assets.

Instead, it transferred those rights to PDVSA, which now

controls and operates the assets. Helmerich’s second takings

theory also suffices to trigger the expropriation exception.

PDVSA argues Helmerich forfeited this argument by

failing to cross-appeal. We disagree. An appellee may defend

a judgment on any ground supported by the record, so long as

it does not seek to enlarge its rights under the existing

judgment. Jennings v. Stephens, 574 U.S. 271, 276–77 (2015).

Here, the judgment under review simply rejected PDVSA’s

asserted immunity, and the alternative property interest

claimed by Helmerich merely provides a different basis for

doing so. Because this alternative theory does not enlarge

Helmerich’s rights, we may consider it as a basis for rejecting

immunity.

3

The district court next concluded that PDVSA is engaged

in various commercial activities in the United States.

Helmerich V, 754 F. Supp. 3d at 46–47. For example, PDVSA

maintains commercial supply contracts with U.S. entities such

as CITGO Petroleum Corporation and holds “significant

commercial property interests in the United States.” Id.

PDVSA does not seriously challenge these findings, which are

amply supported by the record.

B

PDVSA next contends that the district court erred in

exercising personal jurisdiction over it. The FSIA provides that

16

“[p]ersonal jurisdiction over a foreign state shall exist” for

every claim subject to an immunity exception, so long as the

foreign sovereign has been properly served. 28 U.S.C.

§ 1330(b). We have already held that the expropriation

exception applies to the claims at issue here, and PDVSA does

not claim to have been improperly served. As a statutory

matter, that is the end of our inquiry.

PDVSA nonetheless objects that the Fifth Amendment

bars the exercise of personal jurisdiction in this case. PDVSA

invokes due-process limits on the exercise of personal

jurisdiction contained in Fourteenth Amendment precedents.

After this case was briefed and argued, the Supreme Court held

that the Fifth Amendment imposes different restrictions on the

exercise of personal jurisdiction than does the Fourteenth. See

Fuld v. PLO, 606 U.S. 1, 16 (2025). PDVSA’s arguments thus

may fail because they invoke Fourteenth Amendment

standards. But regardless of that question, we have held that

the Fifth Amendment affords no protection to foreign states,

Price, 294 F.3d at 96, or to instrumentalities that are the “alter

ego” of a foreign state, see GSS Grp. Ltd. v. Nat’l Port Auth.,

680 F.3d 805, 815 (D.C. Cir. 2012).

To determine whether a foreign corporation is an alter ego

of a foreign state, we look to First National City Bank v. Banco

Para El Comercio Exterior de Cuba, 462 U.S. 611 (1983)

(“Bancec”). In Bancec, the Supreme Court held that

government corporations established as separate legal persons

are generally treated as entities separate from the government

itself. See id. at 626–27. However, the opposite rule applies

when the “corporate entity is so extensively controlled by its

owner that a relationship of principal and agent is created.” Id.

at 629. To evaluate that question, courts consider

17

(1) the level of economic control by the government;

(2) whether the entity’s profits go to the government;

(3) the degree to which government officials manage

the entity or otherwise have a hand in its daily affairs;

(4) whether the government is the real beneficiary of

the entity’s conduct; and (5) whether adherence to

separate identities would entitle the foreign state to

benefits in United States courts while avoiding its

obligations.

Rubin v. Islamic Republic of Iran, 583 U.S. 202, 210 (2018)

(cleaned up); accord GSS Grp., 680 F.3d at 815; TMR Energy

Ltd. v. State Prop. Fund of Ukr., 411 F.3d 296, 300 (D.C. Cir.

2005).

We see no basis for disturbing the district court’s

conclusion that PDVSA is the alter ego of Venezuela for

constitutional purposes. The district court articulated the

correct legal test identified above. See Helmerich V, 754 F.

Supp. 3d at 47–48. And after jurisdictional discovery, the court

painstakingly reviewed the evidence supporting an alter-ego

determination under each of the relevant factors, in an analysis

spanning some four pages of the Federal Supplement. See id.

at 48–51. Among other things, the court cited PDVSA’s own

statements that it is “controlled by the Venezuelan government,

which ultimately determines [its] capital investment and other

spending programs.” Id. at 48. The court also explained how

Venezuela sets PDVSA’s annual budget and compels it to

maintain its funds in foreign currency. See id.

PDVSA does not come close to establishing that the

district court’s alter-ego determination is wrong, or the

subsidiary findings that underlie it are clearly erroneous. In

two short paragraphs of argument, PDVSA contends that the

district court erred in mentioning considerations of ordinary

18

shareholder control and of Venezuela’s actions as a regulator.

But as explained above, the district court considered much

more than just that. PDVSA further suggests that these two

considerations are legally irrelevant—and that even

mentioning them fatally infected the district court’s much

broader analysis of control. PDVSA cites Transamerica

Leasing, Inc. v. La Republica de Venezuela, 200 F.3d 843 (D.C.

Cir. 2000), where we held that owning a majority of shares and

appointing a board of directors was insufficient to establish

alter-ego status. See id. at 849. At the same time, we noted

that these considerations were “relevant” to an alter-ego

determination, though not sufficient “by themselves.” Id. at

851. And we reaffirmed that “[t]he question [of sovereign

control over an instrumentality] defies resolution by

‘mechanical formula[e],’ for the inquiry is inherently fact-

specific.” Id. at 849 (quoting Bancec, 462 U.S. at 633).

Transamerica does not undercut the district court’s fact-

intensive finding of sufficient control here.

We note that the Third Circuit has also held that PDVSA

is an alter ego of Venezuela. See Crystallex Int’l Corp. v.

Bolivarian Republic of Venezuela, 932 F.3d 126, 146–49 (3d

Cir. 2019). In Crystallex, PDVSA “effectively conceded” that

Venezuela extensively controls it. See id. at 146. And the

Third Circuit evaluated the Rubin factors, found them satisfied,

and did not view the question as close. See id. at 152 (“[I]f the

relationship between Venezuela and PDVSA cannot satisfy the

Supreme Court’s extensive-control requirement, we know

nothing that can.”). The Third Circuit’s analysis is persuasive

and reinforces the district court’s alter-ego holding.

Finally, PDVSA argues that if the district court’s alter-ego

finding is correct, then for FSIA purposes it must be treated as

Venezuela itself, not as an agency or instrumentality of

Venezuela. The FSIA defines an “agency or instrumentality”

19

of a foreign state as an entity that is a “separate legal person”

from the state itself. 28 U.S.C. § 1603(b). PDVSA reasons

that if it is treated just like Venezuela for Fifth Amendment

purposes, then it must be treated just like Venezuela for FSIA

purposes. And that would cinch up its jurisdictional immunity,

PDVSA concludes, given the absence of any evidence that the

property taken from Helmerich, or any property exchanged for

it, “is present in the United States.” Id. § 1605(a)(3).

Hemerich’s inconsistency argument is mistaken, because

the constitutional and statutory tests are different. As explained

above, the constitutional test for alter-ego status turns on the

extent to which the sovereign controls a legally separate entity

like a government-owned corporation. See, e.g., Bancec, 462

U.S. at 626–27; TMR Energy, 411 F.3d at 301. In contrast,

when distinguishing between a foreign sovereign and an

agency or instrumentality for FSIA purposes, we consider

whether the entity’s “core functions are governmental or

commercial.” De Csepel v. Republic of Hungary, 27 F.4th 736,

744 (D.C. Cir. 2022) (cleaned up); see Transaero, Inc. v. La

Fuerza Aerea Boliviana, 30 F.3d 148, 151 (D.C. Cir. 1994).

The tests serve different purposes, and there is nothing unusual,

much less inherently contradictory, in concluding that a foreign

sovereign completely controls a legally separate entity that is

engaged in primarily commercial activities. Finally, in TMR

Energy, we specifically held that the foreign entity at issue was

both an “agency or instrumentality of a foreign state” for FSIA

purposes and an alter-ego of that state for purposes of the Fifth

Amendment. 411 F.3d at 300, 302. So too here.

C

Finally, PDVSA argues that the act-of-state doctrine bars

Helmerich’s expropriation claim. That doctrine prevents

courts “from inquiring into the validity of the public acts a

20

recognized foreign sovereign power committed within its own

territory.” Sabbatino, 376 U.S. at 401. However, the Second

Hickenlooper Amendment bars application of the act-of-state

doctrine in cases where “a claim of title or other rights to

property is asserted by any party … based upon (or traced

through) a confiscation or other taking” in violation of

international law. 22 U.S.C. § 2370(e)(2). The district court

held that the Amendment governs here. We agree.

PDVSA contends that the Amendment does not cover

claims for damages. It reasons that a “claim of title” refers to

a dispute regarding ownership, so a claim of “other rights to

property” must likewise involve a dispute regarding

ownership. And damages claims, it says, do not involve

disputes regarding ownership. We reject this contention. As a

textual matter, the phrase “other rights to property” fits this

case perfectly. As explained above, the district court

permissibly concluded that Venezuela took two distinct

property rights of Helmerich in violation of international law.

PDVSA invokes the interpretive canons of ejusdem

generis and noscitur a sociis to contend that the phrase “claim

of title” must restrict the adjacent phrase “other rights to

property.” But neither canon is a good fit. The ejusdem generis

canon requires “a catchall phrase at the end of an enumeration

of specifics, as in dog, cats, horses, cattle, and other animals.”

A. Scalia & B. Garner, Reading Law: The Interpretation of

Legal Texts 199 (2012); see Overdevest Nurseries, L.P. v.

Walsh, 2 F.4th 977, 983 (D.C. Cir. 2021). Here, the catchall

phrase “other rights to property” is preceded not by a list of

terms with some common trait, but merely by the phrase “claim

of title.” Similarly, for the noscitur or associated-words canon

to apply, the relevant terms “must be conjoined in such a way

as to indicate that they have some quality in common.” A.

Scalia & B. Garner, supra, at 196; see Overdevest, 2 F.4th at

21

983. Again, conjoining disputes over “claim of title” with

disputes over “other rights to property” suggests no common

quality other than property disputes. Moreover, nothing in

either phrase suggests a limitation to injunctive actions for the

return of property as opposed to damages actions for just

compensation. And such a limitation would be wildly

implausible in this context because international law, like the

domestic Takings Clause, does not generally prohibit

governments from taking private property, but instead merely

requires that they afford just compensation. Restatement

(Third) of Foreign Relations Law § 712(1) cmt. c (1987)

(“International law requires that a taking of the property of a

foreign national, whether a natural or juridical person, be

compensated.”). So it would make no sense for Congress to

greenlight a null set of claims to enjoin takings conducted by

foreign sovereigns abroad, but to maintain a bar on damages

claims seeking just compensation for the same group of

takings. Ultimately, we think that “other rights to property”

simply means asserted property rights beyond claims of title—

and certainly does not mean injunctive but not damages

actions.1

PDVSA also argues that the Second Hickenlooper

Amendment applies only in cases where the expropriated

property is present in the United States. But the Amendment

contains no such reference to the United States or any other

1

If disputes about “other rights to property” just means

property disputes, then the phrase “claims of title” would serve

merely to highlight one particularly obvious example of a “right in

property.” Sometimes Congress drafts statutes containing

redundancies, for the sake of a “belt-and-suspenders approach.”

United States v. Bronstein, 849 F.3d 1101, 1110 (D.C. Cir. 2017)

(cleaned up). And here, with a single three-word phrase (“claim of

title”) followed by an express catchall phrase (“other rights to

property”), there is at most minimal surplusage.

22

location. See 22 U.S.C. § 2370(e)(2). In this respect, it differs

strikingly from the expropriation exception, which on its face

requires some connection between the disputed taking and

commercial activity in the United States. See 28 U.S.C.

§ 1605(a)(3) (property must be “present in the United States in

connection with a commercial activity carried on in the United

States by the foreign state” or must be owned or operated by an

instrumentality “engaged in a commercial activity in the United

States”). As Simon explained, the domestic “limitation” in the

expropriation exception simply is “not found in the Second

Hickenlooper Amendment.” 604 U.S. at 122. We recognize

that some older cases have read a domestic-nexus requirement

into the Amendment based on statements from congressional

hearings. See Banco Nacional de Cuba v. First Nat’l City Bank

of N.Y., 431 F.2d 394, 400–02 (2d Cir. 1970); Compania de

Gas de Nuevo Laredo, S.A. v. Entex, Inc., 686 F.2d 322, 327

(5th Cir. 1982). But given the textual considerations that we

have addressed, and the lessened significance of legislative

history as an interpretive consideration since those cases were

decided, we do not find them persuasive. See Food Mktg. Inst.

v. Argus Leader Media, 588 U.S. 427, 437 (2019).

With no textual support for its proposed limitation,

PDVSA retreats to the presumption that federal statutes do not

apply extraterritorially. See Morrison v. Nat’l Austrl. Bank

Ltd., 561 U.S. 247, 255 (2010). The Second Hickenlooper

Amendment restricts courts from applying the act-of-state

doctrine, which applies only to acts committed by foreign

sovereigns within their own territories. See W.S. Kirkpatrick

& Co. v. Env’t Tectonics Corp., Int’l, 493 U.S. 400, 405 (1990);

Sabbatino, 376 U.S. at 401. The Amendment thus applies

exclusively to foreign takings, which is enough to rebut the

presumption against extraterritoriality. See RJR Nabisco v.

European Community, 579 U.S. 325, 337 (2016).

23

For these reasons, Helmerich is correct that the Second

Hickenlooper Amendment bars application of the act-of-state

doctrine to its expropriation claim here.

V

We affirm the denial of PDVSA’s motion to dismiss.

So ordered.