Petition for Writ of Certiorari — Petróleos de Venezuela, S.A., et al., Petitioners v. Helmerich & Payne International Drilling Co.

APPENDIX

APPENDIX CONTENTS

Page

APPENDIX A: Opinion of the United States

Court of Appeals for the District of

Columbia Circuit (Oct. 3, 2025) ................................ 1a

APPENDIX B: Memorandum Opinion and

Order of the United States District Court

for the District of Columbia (Sept. 20, 2024)......... 26a

APPENDIX C: Order of the United States

Court of Appeals for the District of

Columbia Circuit Denying Petition for

Rehearing En Banc (Dec. 3, 2025) ......................... 74a

(I)

APPENDIX 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)

___________

Opinion of the United States Court of Appeals for

the District of Columbia Circuit

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.

(1a)

2a

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

3a

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 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

4a

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).

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.

5a

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 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

6a

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.

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

7a

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) (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.

8a

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:

[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

9a

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.

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.,

10a

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 clear, the actof-state doctrine and the Second Hickenlooper

Amendment are critical to interpreting the scope of

11a

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 actof-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

12a

Performance Plastics Eur. v. Bolivarian Republic of

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

As explained below, the question whether the actof-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.

13a

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 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

14a

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

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

15a

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.

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

16a

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 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

17a

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 “[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

18a

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

(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

19a

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 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

20a

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 alterego status. See id. at 849. At the same time, we noted

that these considerations were “relevant” to an alterego 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

21a

“agency or instrumentality” 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

22a

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 recognized foreign

sovereign power committed within its own territory.”

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

Hickenlooper Amendment bars application of the actof-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

23a

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 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”

24a

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 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

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.

25a

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).

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.

26a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

___________

HELMERICH & PAYNE INTERNATIONAL DRILLING CO.,

Plaintiff

v.

PETRÓLEOS DE VENEZUELA, S.A. AND PDVSA

PETRÓLEO, S.A.,

Defendants

___________

Case No. 11-cv-1735 (CRC)

(Judge Cooper)

___________

September 20, 2024

Memorandum Opinion and Order

This case stems from the Venezuelan government’s

2010 seizure of drilling rigs and other assets owned

by the Venezuelan subsidiary of the Oklahoma based

oil drilling company Helmerich & Payne

International Drilling Company (“H&P-IDC”). H&PIDC and the subsidiary, Helmerich & Payne de

Venezuela, C.A. (“H&P-V”), filed suit in 2011 against

the Republic of Venezuela and two state-owned

companies: Petróleos de Venezuela, S.A., and its

subsidiary PDVSA Petróleo, S.A. (collectively,

“PDVSA”). Both H&P-IDC and H&P-V sought

compensation for the alleged taking. They premised

subject matter jurisdiction on the expropriation

exception to the Foreign Sovereign Immunity Act

27a

(“FSIA”), which applies when “rights in [certain]

property [are] taken in violation of international law.”

28 U.S.C. § 1605(a)(3). H&P-V also brought a claim

for breach of contract, asserting jurisdiction under the

FSIA’s commercial activity exception. See id. §

1605(a)(2). After the defendants moved to dismiss on

various grounds, the parties stipulated to the

resolution of four threshold issues:

1. Whether, for purposes of determining if a

“taking in violation of international law” has

occurred under the FSIA’s expropriation

exception, H&P-V is a national of Venezuela

under international law;

2. Whether H&P-IDC has standing to assert a

taking in violation of international law on the

basis of Venezuela’s expropriation of H&P’s

property;

3. Whether plaintiffs’ expropriation claims are

barred by the act-of-state doctrine, including

whether this defense may be adjudicated prior to

resolution of Venezuela’s challenges to the

court’s subject matter jurisdiction; and

4. Whether, for purposes of determining the

applicability of the FSIA’s commercial activity

exception, plaintiffs have sufficiently alleged a

“direct effect” in the United States within the

meaning of that provision.

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

Republic of Venezuela (“Helmerich II”), 784 F.3d 804,

811 (D.C. Cir. 2015), vacated and remanded, 581 U.S.

170 (2017).

28a

Since then, there have been a district court opinion,

two D.C. Circuit opinions, and one Supreme Court

opinion touching on these “preliminary” issues. See

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

Republic of Venezuela (“Helmerich I”), 971 F. Supp. 2d

49 (D.D.C. 2013) (Wilkins, J.)1; Helmerich II, 784 F.3d

804; Bolivarian Republic of Venezuela v. Helmerich &

Payne Int’l Drilling Co. (“Helmerich III”), 581 U.S.

170 (2017); Helmerich & Payne Int’l Drilling Co. v.

Bolivarian Republic of Venezuela (“Helmerich IV”),

743 F. App’x 442 (D.C. Cir. 2018). There was also a

two-year voluntary stay of the case following the

Circuit’s most recent remand to this Court due to

complications from the United States’ decision not to

recognize Venezuelan President Nicholas Maduro’s

2018 reelection. See ECF No. 132 (Mot. Stay), at 2–3;

ECF No. 133 (Order Granting Mot. Stay). As a result

of these developments, the case stands, thirteen years

after it was filed, in the following posture:

H&P-V’s expropriation claim, as well as H&PIDC’s expropriation claim insofar as it was based on

the direct taking of H&P-V’s property, have been

dismissed for lack of jurisdiction under the “domestic

takings” rule. See Helmerich IV, 743 F. App’x at 447–

48, 453. That rule holds that a government’s seizure

of property from its own citizens does not violate

international law, and H&P-V has been found to be a

Venezuelan national (Issue 1 above). Id. at 447–48.

H&P-V’s breach of contract claim has also been

dismissed for lack of jurisdiction because the alleged

1 The Honorable Robert L. Wilkins presided over the case

before being elevated to the D.C. Circuit.

29a

breach did not have a direct effect on the United

States (Issue 4). Helmerich II, 784 F.3d at 817–19.

H&P-V therefore is no longer a plaintiff in the case.

On the other side of the ledger, Venezuela has been

dismissed as a defendant because, as the D.C. Circuit

clarified in De Csepel v. Republic of Hungary, 859 F.3d

1094 (D.C. Cir. 2017), in order for the FSIA’s

expropriation exception to apply against a foreign

state (as opposed to an agency or instrumentality of

the state), the expropriated property must be located

in the United States, id., at 1106–07, and the property

seized from H&P-V here does not fit the bill. See ECF

No. 154 (Order), at 2.

The jurisdictional basis for H&P-IDC’s separate

expropriation claim based on the taking of its own

property (Issue 2) remains in play. Following the

lifting of the voluntary stay in April 2022, see ECF No.

145 (Order), at 6–7, the parties completed discovery

on that issue.

No court has yet ruled on whether any of the

plaintiffs’ expropriation claims are barred by the actof-state doctrine (Issue 3), so that issue remains live

as well as to H&P-IDC’s remaining takings claim.

Against that backdrop, PDVSA has renewed its

motion to dismiss. It argues that (1) the FSIA’s

expropriation exception does not confer subject

matter jurisdiction over the remaining claims; (2) the

Court lacks personal jurisdiction over PDVSA; and (3)

H&P-IDC’s claims are barred by the act-of-state

doctrine. ECF No. 156 (Renewed Mot. Dismiss), at

19–38.

30a

Having considered the parties’ submissions and

heard argument on PDVSA’s motion, the Court will

deny the motion for the reasons explained below.

I.

Legal Standards

PDVSA moves to dismiss pursuant to Rule 12(b)(1)

of the Federal Rules of Civil Procedure for lack of

subject matter jurisdiction, Rule 12(b)(2) for lack of

personal jurisdiction, and Rule 12(b)(6) for failure to

state a claim upon which relief can be granted.

“To address a motion to dismiss under Rule 12(b)(1)

where the suit involves a foreign sovereign and the

court’s jurisdiction over the sovereign is contested,

the district court must do more than just look to the

pleadings to ascertain whether to grant the motion to

dismiss,” including conduct jurisdictional discovery as

necessary. Foremost-McKesson, Inc. v. Islamic

Republic of Iran, 905 F.2d 438, 449 (D.C. Cir. 1990);

see also Simon v. Republic of Hungary, 77 F.4th 1077,

1116 (D.C. Cir. 2023). The plaintiff bears the initial

burden of producing evidence that an exception to

sovereign immunity applies, but it is “the sovereign

[who] bears the ultimate burden of persuasion to

show the exception does not apply.” Bell Helicopter

Textron, Inc. v. Islamic Republic of Iran, 734 F.3d

1175, 1183 (D.C. Cir. 2013).

As for Rule 12(b)(2), “subject matter jurisdiction

plus service of process equals personal jurisdiction”

over a foreign sovereign or its agent. TMR Energy Ltd.

v. State Prop. Fund of Ukr., 411 F.3d 296, 299 (D.C.

Cir. 2005) (quoting Practical Concepts, Inc. v.

Republic of Bolivia, 811 F.2d 1543, 1548 n.11 (D.C.

Cir. 1987)). Foreign corporations, however, are

31a

“‘person[s]’ covered by the Fifth Amendment” and

thus are also entitled to due process protection in the

normal course. GSS Grp. Ltd. v. Nat’l Port Auth., 680

F.3d 805, 810, 817 (D.C. Cir. 2012). Due process does

not apply, however, to foreign corporations that are

“alter egos” or agents of their affiliated states. See id.

at 815 (“Whenever a foreign sovereign controls an

instrumentality to such a degree that a principalagent relationship arises between them, the

instrumentality receives the same due process

protection as the sovereign: none.”). A foreign

corporation is entitled to a “‘presumption of

separateness’ from the . . . foreign state,” which may

be rebutted by a “showing that either a principalagent relationship exists between the foreign state

and the instrumentality or equitable principles favor

the exercise of jurisdiction.” UAB Skyroad Leasing v.

OJSC Tajik Air, No. 21-7015, 2022 WL 2189300, at

*1 (D.C. Cir. June 17, 2022) (quoting GSS Grp. Ltd.,

680 F.3d at 814). “‘The plaintiffs have the burden of

establishing the court’s personal jurisdiction’ over the

defendant.” Erwin-Simpson v. AirAsia Berhad, 985

F.3d 883, 888 (D.C. Cir. 2021) (citation omitted).

Finally, PDVSA moves for Rule 12(b)(6) dismissal

based on the act-of-state doctrine. “Unlike a claim of

sovereign immunity, which merely raises a

jurisdictional defense, the act of state doctrine

provides foreign states with a substantive defense on

the merits.” Republic of Austria v. Altmann, 541 U.S.

677, 700 (2004). Adjudicating this defense therefore

requires determining whether the complaint

“contain[s] sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’”

32a

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

In this analysis, the Court accepts as true all wellpleaded allegations in the complaint and draws all

reasonable factual inferences in favor of the plaintiff

but is not required to accept legal conclusions as

correct. Sissel v. U.S. Dep’t of Health & Hum. Servs.,

760 F.3d 1, 4 (D.C. Cir. 2014).

II.

Analysis

The Court now turns to each ground for dismissal—

subject matter jurisdiction, personal jurisdiction, and

the act-of-state doctrine.

A. Subject Matter Jurisdiction

The FSIA is “the sole basis for obtaining

jurisdiction over a foreign state in our courts.”

Nemariam v. Federal Democratic Republic of

Ethiopia, 491 F.3d 470, 474 (D.C. Cir. 2007) (quoting

Argentine Republic v. Amerada Hess Shipping Corp.,

488 U.S. 428, 434 (1989)). Under the FSIA, “a foreign

state is ‘ . . . immune from the jurisdiction of the

United States courts’” unless “the plaintiff shows that

one of the exceptions to immunity provided in 28

U.S.C. §§ 1605–07 applies.” TMR Energy Ltd., 411

F.3d at 299 (quoting Saudi Arabia v. Nelson, 507 U.S.

349, 355 (1993)). Here, H&P-IDC invokes the

expropriation exception in 28 U.S.C. § 1605(a)(3),

which strips sovereign immunity in any case where

(1) “rights in property taken in violation of

international law are in issue” and, as relevant here,

(2) the expropriated “property or any property

exchanged for such property is owned or operated by

an agency or instrumentality of the foreign state” and

33a

(3) “that agency or instrumentality is engaged in a

commercial activity in the United States.” 28 U.S.C. §

1605(a)(3).2 The PDVSA defendants acknowledge

that they “each qualify as an ‘agency or

instrumentality’ of the Republic [of Venezuela] under

the FSIA, 28 U.S.C. § 1603(b),” Renewed Mot. Dismiss

at 4, but they challenge the application of each of the

exception’s three prongs.

1. Rights in Property Taken in Violation of

International Law

As noted above, the domestic-takings rule

forecloses H&P-IDC from resting jurisdiction on the

seizure of H&P-V’s assets. Rather, to satisfy the first

prong of the FSIA’s expropriation exception, H&PIDC must establish that, when PDVSA nationalized

H&P-V’s assets, H&P-IDC’s own “rights in property”

were taken in violation of international law. See

Helmerich IV, 743 Fed. App’x at 453. H&P-IDC

identifies two such rights. First, it argues that

PDVSA appropriated its ownership rights in H&P-V

by entirely destroying their value. ECF No. 162

(Opp’n), at 23–29. Second, it contends that PDVSA

infringed its right under Venezuelan law to dispose of

H&P-V’s assets. Id. at 29–34.

a. H&P-IDC’s Ownership Rights in H&P-V

H&P-IDC’s primary argument is that PDVSA

indirectly took its ownership rights in H&P-V as its

2 Where the foreign state itself is a defendant, the exception

requires that the “property or any property exchanged for” it be

“present in the United States in connection with a commercial

activity carried on in the United States by the foreign state.” 28

U.S.C. § 1605(a)(3); see also De Csepel, 859 F.3d at 1106–07.

34a

sole shareholder by completely destroying the

beneficial value of those rights. In the D.C. Circuit’s

most recent ruling remanding H&P-IDC’s takings

claim to this Court, the Circuit explained that

“[i]nternational law undisputedly protects the ‘direct

rights’ shareholders enjoy in connection with

corporate ownership[.]” Helmerich IV, 743 Fed. App’x

at 454. In addition to these direct rights, the Circuit

reiterated the principle “that a state violates

international law if it takes ‘measures that have an

effect equivalent to a formal expropriation of [a

foreign] shareholder’s own property rights,’ even if

the state does not formally divest the shareholder of

its shares.” Id. (alteration in original) (citations

omitted). It then proceeded to endorse the standard

offered by the United States as amicus curiae for

determining whether a foreign state has affected such

an “indirect” taking:

[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. (alterations in original) (citation omitted).

Applying this standard, the Circuit had “little

trouble concluding” that the complaint allegations—

including that the defendants assumed control of

35a

H&P-V’s “entire business, which they now operate as

a state-owned commercial enterprise” and took the

“the entirety of [H&P-IDC’s] Venezuelan business

operations,” thus “depriv[ing] H&P-IDC of its

ownership and control of H&P-V”—presented “a valid

claim that ‘property’ has been ‘taken in violation of

international law.’” Id. at 455 (alterations in original)

(quoting Helmerich III, 581 U.S. at 177); see also id.

(“These

allegations

describe

the

indirect

expropriation of a shareholder’s direct rights to a T.”).

The only remaining question, which the Circuit left

for this Court to answer, was “whether Venezuela and

PDVSA have in fact committed the act of which they

stand accused, namely the wholesale nationalization

of H&P-V.” Id.

The answer is yes. With the benefit of jurisdictional

discovery, the Court finds that H&P-IDC has shown

that its “rights in property [were] taken in violation of

international law,” 28 U.S.C. § 1605(a)(3), based on

the following undisputed facts.

First, the record indicates PDVSA took H&P-V’s

entire business to operate as a state-owned

enterprise. On June 29, 2010, the National Assembly

of Venezuela declared “of public utility and social

interest” H&P-V’s rigs and all “movable and

immovable property and other assets of said company

associated with the use of said drilling rigs, and

consequently their implementation, use[,] and

exploitation necessary for the drilling of wells in

geological structures, both in the east and west of the

country.” ECF No. 165 (Decl. of David Bowker), Ex.

28 (June 29, 2010, Official Gazette of Venezuela), at

377.499. The following day, then President Hugo

36a

Chávez decreed “[t]he forceful acquisition of eleven

(11) pieces of drilling equipment for oil wells (drilling

rigs), allegedly owned by the company [H&P-V] as

well as the movable and immovable assets and other

improvements of said company related to the drilling

of oil wells in Venezuelan territory, associated with

the use of the aforementioned drilling equipment.”

Decl. of David Bowker, Ex. 29 (June 30, 2010, Official

Gazette of Venezuela), at 377,601. President Chávez

further proclaimed that “[t]he [e]xpropriated [a]ssets

will pass free of encumbrances or limitations to

Petróleos de Venezuela, SA, or the subsidiary that it

designates for this purpose, as the expropriating

entity[.]” Id. at 377,603. A day later, Venezuela’s

Minister of Energy and Petroleum, who was also

PDVSA’s President, spoke at the premises of H&P-V,

which had been blockaded by the Venezuelan

National Guard, see Decl. of David Bowker, Ex. 27

(June 13 Email between H&P-IDC employees), and

stated that President Chávez was “taking control over

this drill company which has been nationalized by the

revolution,” Decl. of David Bowker, Ex. 40 (July 2010

Transcript of PDVSA President Speech), at 3. H&PV’s premises were renamed the “Simón Bolívar Base.”

See Decl. of David Bowker, Ex. 82 (August PDVSA

Report), at 3.

Second, H&P-IDC has shown that H&P-V no

longer possesses any significant tangible property or

conducts any commercial operations in Venezuela.

Shortly after the expropriation, an H&P-V

representative sent a notary public to H&P-V’s former

address in Anaco, Venezuela, to record an “Inventory

of Expropriated Property” for submission to a

37a

Venezuelan court. See Decl. of David Bowker, Ex. 13

(Inventory of Expropriated Property), at 4–37; Opp’n

at 23–24. The inventory included photos and detailed

descriptions of the drills, real property, motor

vehicles, maintenance equipment, water and oil

storage tanks, and pumps at H&P-V’s former

premises—essentially all tangible property once

owned by H&P-V. See Decl. of David Bowker, Ex. 13

(Inventory of Expropriated Property), at 10–36. And

in H&P-IDC’s 2010 Annual Report, the company

noted that it had “derecognized [its] Venezuela

property and equipment,” as well as its “warehouse

inventory,” due to the takeover. Decl. of David

Bowker, Ex. 18 (H&P-IDC 2010 Annual Report), at

80; see also Decl. of David Bowker, Ex. 62 (Deposition

of H&P-IDC corporate representative, Stuart G.

Spencer), at 132 (noting that he was not aware of “any

remaining movable or immovable property,

improvements, or productive assets” of H&P-V after

June 2010).

As to commercial operations, a representative of

H&P-V notified the Mayor of Anaco in July 2010 that

H&P-V had “ceased its usual economic activities on

July 1, 2010, due to the fact that PDVSA Petróleo

executed a prior occupation measure of the facilities

and assets owned by H&P[-V], at its headquarters . . .

as a consequence of the expropriation decree issued

by the President of the Republic[.]” Decl. of David

Bowker, Ex. 44, at 1. The representative further

requested that the mayor’s office “withdraw H&P[V]’s [l]icense to carry out [e]conomic [a]ctivities.” Id.

at 2. Thus, though H&P-V still exists as a corporate

38a

legal entity, the record is clear that it no longer

engages in commercial operations.

PDVSA retorts that H&P-IDC continues to vote

H&P-V’s shares, appoint its officers and directors,

make tax and regulatory filings, supervise H&P-V’s

legal actions, and recover on certain arbitration

claims. See Renewed Mot. Dismiss at 22–23; ECF No.

170 (Hr’g Tr.), at 7–9; ECF No. 156 (Decl. of Kevin

Meehan), Ex. 8 (H&P-IDC SEC Form 10-K), at 121

(noting that H&P-IDC has received over $20 million

from the settlement of arbitration disputes). It also

observes that, in 2020, H&P-IDC reclassified almost

$12 million it owed to H&P-V as a “deemed dividend”

to offset money H&P-V owed to H&P-IDC from

dividends declared but never paid out before the

expropriation. Renewed Mot. Dismiss at 18 (citing

Decl. of Kevin Meehan, Ex. 3 (H&P-IDC Response to

Interrogatory No. 11), at 2–5). But, as H&P-IDC

attested in its interrogatory responses, “[n]o funds

were exchanged and no dividends were ‘declared,

authorized, paid, or distributed’” as a result of this

“accounting

decision”

because,

after

the

expropriation, H&P-V had no revenue-generating

business. Decl. of Kevin Meehan, Ex. 3, at 4. And

though H&P-IDC’s appointment of H&P-V’s directors

and direction of legal action are “relevant

considerations,” they do not appear to show that

H&P-V “maintains any commercial operations in

Venezuela.” Helmerich IV, 743 Fed. App’x at 455; see

also id. at 453 (holding that indirect expropriation can

occur “even if the state does not formally divest the

shareholder of its shares”). Accordingly, PDVSA has

failed to rebut H&P-IDC’s evidence showing that the

39a

expropriation “completely destroy[ed]” any “beneficial

and productive value of [H&P-IDC’s] ownership of

[its] company.” Id. at 455. (second and third

alterations in original).

PDVSA attempts to show otherwise by analogizing

to three cases where claims of indirect expropriation

were denied under the standards announced in

Helmerich IV, but all are distinguishable. In Exxon

Mobil Corp. v. Corporación CIMEX S.A., 534 F. Supp.

3d 1 (D.D.C. 2021), vacated and remanded on other

grounds, 111 F.4th 12, 36 (D.C. Cir. 2024), the

relevant subsidiary continued to “operate[] at least 40

fuel stations” and “operate as a going concern.” Id. at

28. Here, H&P-V not only lacks the operational

capacity to resume its drilling business but also has

no license to perform any economic activities in

Venezuela. In Africa Growth Corp. v. Republic of

Angola, No. 17-CV-2469 (BAH), 2019 WL 3253367

(D.D.C. July 19, 2019), the court found that the

relevant subsidiaries were not actually owned by the

company claiming that its shareholder rights had

been violated. Id. at *8. Here, H&P-V is indisputably

owned by H&P-IDC. And in Bock Holdings, LLC v.

Republic of Honduras, 654 F. Supp. 3d 1261 (S.D. Fla.

2023), reconsideration denied, No. 21-CV-81781, 2023

WL 7277160 (S.D. Fla. Sept. 25, 2023), the plaintiff

alleged that the Honduran government had

unlawfully taken a parcel of oceanfront property

owned by its subsidiary. Id. at 1265. But, unlike in

Bock, H&P-IDC does not claim the seizure of one

asset of its subsidiary; it claims expropriation “of the

subsidiary itself.” Id. (distinguishing Helmerich IV

from the facts before it).

40a

Because H&P-IDC has presented sufficient

evidence to show that H&P-V’s entire business was

unlawfully taken without compensation, the Court

finds that H&P-IDC has established that its own

rights in property were indirectly expropriated in

violation of international law.

b. H&P-IDC’s Rights in H&P-V’s Assets

Under Venezuelan Law

H&P-IDC’s first argument that PDVSA took its

shareholder rights in H&P-V’s entire business is

sufficient to establish that H&P-IDC’s “rights in

property [were] taken in violation of international

law.” 28 U.S.C. § 1605(a)(3). However, the Court will

also consider H&P-IDC’s secondary argument that,

under Venezuelan law, it had its own right to control

the disposition of its subsidiary’s assets, which

PDVSA infringed. Opp’n at 29–34; see also Helmerich

IV, 743 F. App’x at 456 (seeking the district court’s

“considered judgment” on this issue).

Whether a parent company like H&P-IDC has

direct rights in its subsidiary’s property requires

reference to municipal law—here, Venezuela’s. See

United States Supplemental Brief at 3, Helmerich IV,

743 F. App’x 442 (No. 13-7169), 2018 WL 2981075

(citing Case Concerning Ahmadou Sadio Diallo

(Republic of Guinea v. Democratic Republic of the

Congo), Judgment, 2010 I.C.J. 639, ¶ 114 (Nov. 30)).

H&P-IDC asserts that (1) Venezuelan law protects a

right of disposition that can be vested in an entity

other than the property owner, (2) H&P-V’s right of

disposition in its assets was vested in H&P-IDC as

H&P-V’s sole shareholder, and (3) when PDVSA

expropriated H&P-V’s assets, it infringed this right.

41a

PDVSA does not appear to contest that an

expropriation could infringe such a right in violation

of international law, but it disputes whether this right

exists under Venezuelan law and whether H&P-IDC

had the right to dispose of H&P-V’s assets under the

relevant corporate agreements.

Turning to the first issue, the undisputed evidence

in the record demonstrates that Venezuelan law

protects a right of disposition that can be vested in a

third party. H&P-IDC submits a declaration from a

Venezuelan lawyer and accompanying legal treatises

stating that, under Venezuelan law, traditional

property ownership consists of three rights:

disposition, use, and enjoyment. See ECF No. 164

(Decl. of Hernando Díaz-Candida), Ex. 9 (María

Candelaria Domínguez Guillen & Carlos Perez

Fernandez, Course of Rights over Real Estate Property

and Assets), at 394. The right of disposition includes

the power to destroy, transfer, or sell the property. Id.

at 395–96. And this right can be curtailed or vested in

a person other than the property owner. See Decl. of

Hernando Díaz-Candida ¶¶ 24, 28; id., Ex. 7 (Gert

Kummerow, Real Assets & Rights), at 241, 445–46

(“The elastic character assigned to the right of

property . . . authorizes the attribution in favor of

third parties of some of the powers inherent in its

normal content.”).3

3 PDVSA’s sole response to this evidence is a footnote stating

the analysis in Mr. Díaz-Candida’s declaration is irrelevant

because the declaration itself also considers examples from the

areas of trusts, leases, and easements. See ECF No. 168 (Reply),

at 15 n.9. But PDVSA does not address Díaz-Candida’s cited

legal authorities or point to any contrary law. Therefore, PDVSA

42a

Against this background legal framework, the next

issue is whether H&P-V’s right of disposition in its

assets was vested in H&P-IDC. H&P-V directs the

Court to its bylaws (the H&P-V Bylaws), which have

“the force of law” under Article 200 of the Venezuelan

Commercial Code (“VCC”). Decl. of Hernando DíazCandida ¶ 30; see also Decl. of David Bowker, Ex. 116

(Article 200 of the VCC), at 3 (“Commercial companies

are governed by the covenants of the parties, by the

provisions of this Code and by those of the Civil

Code.”). Specifically, Article 5 of the H&P-V Bylaws

gives H&P-V’s General Shareholders Assembly “the

broadest powers of direction, administration and

disposition of the business and assets of the company

without limitations of any kind.” Decl. of Hernando

Díaz-Candida, Ex. 15 (Article 5 of the H&P-V

Bylaws), at 12 (emphases added). H&P-IDC thus

contends that the H&P-V Bylaws vested the right to

dispose of H&P-V’s assets in H&P-IDC as H&P-V’s

sole shareholder. Opp’n at 29–31.

PDVSA disagrees. ECF No. 168 (Reply), at 9–15.

First, PDVSA notes that Article 201 of the VCC

recognizes corporations and their shareholders as

distinct entities, and Article 208 explicitly states that

“property contributed by the partners becomes the

property of the company, unless it is stipulated to the

contrary.” Decl. of Kevin Meehan, Ex. 22 (Article

has not raised any real dispute over whether Venezuelan law

recognizes a right of disposition that can be vested in a party

other than the owner. Cf. Bell Helicopter Textron, Inc., 734 F.3d

at 1183 (holding that, once the plaintiff “produc[es] evidence that

an exception [to immunity] applies . . . the sovereign bears the

ultimate burden of persuasion”).

43a

201(3)); Ex. 23 (Article 208). PDVSA contends that

recognizing a shareholder’s direct rights in its

subsidiary’s assets would “collapse the distinction

between

corporation

and

shareholder”

and

“fundamentally conflict with the provisions of the

[VCC]” by giving “the parent and subsidiary . . . the

exact same right to directly control the use of a

specific asset.” Renewed Mot. Dismiss at 26–27. But

as H&P-IDC highlights, Article 208 appears to allow

contrary stipulations to the default rule of subsidiary

ownership without collapsing the distinction between

entities. More important, H&P-IDC does not contend

that H&P-V relinquished formal ownership of its

assets or even its rights to use and enjoy them—solely

its right to control their disposition. For example, the

H&P-V Bylaws also provide that H&P-V shall “own

and use machine drilling rigs.” Decl. of Kevin

Meehan, Ex. 6 (Article 2 of the H&P-V Bylaws), at 73.

The Court understands these two provisions of the

H&P-V Bylaws (Articles 2 and 5) to establish that

H&P-V is the lawful owner of the rigs and retains the

rights to use and enjoy them, while H&P-IDC has the

right to dispose of them.

Second, PDVSA asserts that the right conferred by

the H&P-V Bylaws is a right to vote on the disposition

of assets, not a direct right to the subsidiary’s assets

themselves. Renewed Mot. Dismiss at 26–27. It

argues that this right to vote is “the same shareholder

voting right[] . . . conferred by default under Article

280 of the [VCC].” Reply at 11. And it contends that

construing this shareholder voting right to include a

direct right of disposition would create a conflict

within the VCC: If a shareholder’s default right to

44a

vote on the disposition of assets under Article 280

were to encompass a direct right to dispose of those

assets, then that would effectively negate Article

208’s rule of subsidiary ownership. Renewed Mot.

Dismiss at 26–27; Reply at 11; see also Decl. of Kevin

Meehan, Ex. 24 (Article 280 of VCC).

This argument equates the H&P-V Bylaws with

Article 280 of the VCC. But they are not the same.

The H&P-V Bylaws provide that its shareholders

have “the broadest powers of direction . . . of the

business and assets of the company without

limitations of any kind”—a much stronger provision

of rights than Article 280’s default rule that a meeting

of stockholders representing three-fourths of the

company’s shares may vote to sell firm’s assets. DíazCandida Decl., Ex. 15 (Article 5 of the H&P-V

Bylaws), at 12. Indeed, PDVSA concedes that “Article

280 does not apply because H&P-V’s bylaws contain

distinct provisions that govern the calling of

shareholders’ meetings, the establishment of a

quorum, the exercise of voting rights and the

corporate acts that are subject to a shareholder vote.”

Renewed Mot. Dismiss at 26; see also Decl. of Kevin

Meehan, Ex. 6 (Articles 6 and 7 of the H&P-V

Bylaws). The Court therefore need not find that

Article 280 confers the disposition right to all

Venezuelan shareholders to find that the H&P-V

Bylaws did so in favor of H&P-IDC.

Third,

PDVSA

presses

that

Venezuela’s

interpretation of its own law, as reflected in briefing

before the D.C. Circuit, is entitled to “respectful

consideration,” such that any conflict should be

resolved in favor of Venezuela’s interpretation. Reply

45a

at 10 (quoting Animal Sci. Prod., Inc. v. Hebei

Welcome Pharm. Co., 585 U.S. 33, 36 (2018)).

However, the cited portion of Venezuela and PDVSA’s

appellate briefing contends only that Article 280 does

not provide a direct right to H&P-IDC. See Appellant

Reply at 30–31, Helmerich IV, 743 F. App’x 442 (No.

13-7169), 2018 WL 1050384. It does not opine on

whether a disposition right exists, negate that Article

200 gives corporate bylaws the force of law, or answer

whether the H&P-V Bylaws conferred such a right to

H&P-IDC. Moreover, Venezuela would not be entitled

to deference in interpreting the H&P-V Bylaws, which

are the relevant source of law for the right asserted.4

Fourth, PDVSA cites several U.S. law sources for

the proposition that ownership of a subsidiary’s

shares does not entail ownership of the subsidiary’s

assets. Reply at 12. But H&P-IDC is not contending

that it owned H&P-V’s assets—only that it had a right

to direct their disposition, which PDVSA infringed.

Finally, PDVSA asserts that “H&P-IDC has not

offered any evidence that it has ever conducted itself

in a manner even remotely suggesting that it has any

direct rights in H&P-V’s oil rigs under Venezuelan

law.” Id. at 15 n.9. Regardless of whether such a

showing is necessary, as H&P-IDC points out, it did

4 H&P-IDC also cites Venezuela’s investment law a source of

its direct rights in H&P-V’s assets. Opp’n at 31–32. Because the

Court concludes that the H&P-V Bylaws independently confer

disposition rights on H&P-IDC, it need not weigh in on whether

Venezuela’s investment law also does so. But, if the Court were

to evaluate the investment law, Venezuela’s interpretation

would need to be “accord[ed] respectful consideration.” Animal

Sci. Prods., 585 U.S. at 36.

46a

offer to sell H&P-V’s rigs to PDVSA on June 23, 2010,

just before the government of Venezuela decreed

them expropriated, which the Court construes as an

exercise its own right to sell them. See Decl. of David

Bowker, Ex. 26 (Email from Executive Vice President

of U.S. and International Operations of H&P-IDC to

Assistant to the Vice President of PDVSA Services).

In sum, none of PDVSA’s arguments against

reading the H&P-V Bylaws to grant H&P-IDC the

right to dispose of H&P-V’s assets withstand scrutiny.

The expropriation of H&P-V’s assets therefore

infringed H&P-IDC’s direct right to dispose of those

assets. This infringement violated international law

because, as the United States noted in its amicus brief

before the D.C. Circuit, “‘[w]henever one of [a

shareholder’s] direct rights is infringed’ by the state,

the shareholder has a cognizable international

expropriation claim.” United States Supplemental

Brief at 3, Helmerich IV, 743 F. App’x 442 (No. 137169), 2018 WL 2981075 (alterations in original)

(citing Case Concerning the Barcelona Traction, Light

& Power Co. (Belg. v. Spain), Judgment, 1970 I.C.J.

3, ¶ 47 (Feb. 5)). PDVSA fails to dispute that

expropriation infringes the disposition right.

Consequently, H&P-IDC has demonstrated a taking

in violation of international law.

2. Ownership & Operation of H&P-V

PDVSA next contends that, even if H&P-IDC’s own

rights in property were taken in violation of

international law, PDVSA neither “own[s]” nor

“operate[s]” the expropriated property, as required for

the expropriation exception to apply. See 28 U.S.C. §

1605(a)(3). The Court disagrees as to H&P-IDC’s

47a

shareholder ownership rights in H&P-V’s business

but agrees as to H&P-IDC’s right to dispose of H&PV’s assets.

Consider first H&P-IDC’s ownership rights. “[T]he

phrase ‘owned or operated’ means ‘possessed or

exerted control or influence over’ the property at

issue.” Nemariam, 491 F.3d at 481. PDVSA begins by

arguing that it does not own or operate the

expropriated property because H&P-IDC still holds

its shares in H&P-V, and PDVSA exerts no control or

influence over that corporate entity. But the property

at issue here is not H&P-IDC’s paper shares in the

shell of the company that used to operate its

Venezuelan drilling business. Rather, it is the

“beneficial and productive value of [H&P-IDC’s]

ownership of [H&P-V],” Helmerich IV, 743 F. App’x at

455 (first alteration in original), which, of course,

flows directly from the operation and deployment of

the assets PDVSA forcibly took.

Discovery has shown that PDVSA very much owns

and operates that property. In the legal proceedings

following expropriation, counsel for the PDVSA

subsidiary defendant attested to possessing the

expropriated assets of H&P-V. See Decl. of David

Bowker, Ex. 35 (Court Enforcement Order), at 7–8

(“[T]he legal representative for PDVSA Petróleo, S.A.

. . . stated: I confirm hereby that I receive from the

Tribunal of Execution of Measures of Anaco movable

and immovable property, and other properties

associated with the afore-mentioned drilling

equipment, the ownership is attributed to the

commercial company [H&P-V][.]”). And the PDVSA

parent company clearly exerts control and influence

48a

over its subsidiaries’ oil-drilling activities. ECF No.

163 (Decl. of Marcos Ruben Carrillo Perera

(Venezuelan Legal Expert for Plaintiffs)), Ex. 6

(August 30, 1975, Official Gazette of Venezuela), at 1

(“The purpose of [Petróleos de Venezuela, S.A.,] will

be . . . to control

[its subsidiaries’] exploration,

exploitation, transportation, manufacturing, refining,

storage, marketing or any other activities of their

competence in matters of oil and other

hydrocarbons[.]”).5

Shifting gears, PDVSA contends that, assuming

arguendo that the taking of H&P-V’s rigs and

facilities “destroy[ed] the beneficial and productive

value of [H&P-IDC’s] ownership of . . . [H&P-V],”

Helmerich IV, 743 F. App’x at 455 (second alteration

in original), that destruction forecloses application of

Section 1605(c)(3)’s “owned or operated” requirement.

5 In a footnote in its opening brief, PDVSA states that “the

evidence shows that Servicios Petroleros,” a second-tier

subsidiary of PDVSA that is not a party to this case, “took

possession of and operated the oil rigs,” presumably to contend

that the PDVSA parent company does not own or operate the

expropriated property. Renewed Mot. Dismiss at 31 n.10 (citing

ECF No. 22, Ex. 4 (Decl. of Josaim Trujilo Acosta (Legal Counsel

for Servicios Petróleros)) ¶¶ 5–7). While Mr. Acosta states that

“Servicios Petróleros has been the sole operator of the

[e]xpropriated [a]ssets ever since July 1, 2010” and “[n]either . .

. [PDVSA defendant] has ever owned or operated any of the

[e]xpropriated [a]ssets,” Decl. of Josaim Trujilo Acosta ¶ 5, he

also stated in his deposition that the PDVSA subsidiary

defendant “is one of the companies in charge of production” and

“tells PDVSA Servicios Petróleros where they want the services

done,” Decl. of David Bowker, Ex. 8 (Dep. of Josaim Trujilo

Acosta), at 58. PDVSA has since abandoned this argument. See

Hr’g Tr. at 16–17.

49a

PDVSA relies on two D.C. Circuit cases for this

contention: Nemariam and Ivanenko v. Yanukovich,

995 F.3d 232 (D.C. Cir. 2021). Neither controls.

In Nemariam, a group of Eritrean plaintiffs

claimed that the government of Ethiopia and its

central bank had expropriated their bank accounts by

physically preventing them from accessing funds in

the accounts. 491 F.3d at 473. After finding that the

plaintiffs had satisfied the “rights in property”

requirement of the FSIA’s expropriation exception,

the Circuit concluded they had not met the “owned or

operated” requirement. Id. at 475–81. It explained

that, as a matter of banking law, funds held in an

account are owned by the bank. Id. at 475–76. The

depositor, by contrast, merely owns a contractual

right to demand payment from the bank. Id. at 476.

By blocking the plaintiffs’ access to the accounts, the

defendants had effectively “extinguished” that

contractual right. Id. at 481 (emphasis omitted). But

the central bank defendant did not “assume the

[plaintiffs’] contractual right to performance[;]” it

rather “declined to perform its own contractual

obligation.” Id. The Circuit thus concluded that the

defendants did not operate or control the property at

issue, i.e., the contractual right to seek payment from

the bank. Id.

Picking up on Nemariam’s observation that the

plaintiffs’ contractual right to payment had

effectively been “extinguished,” id. at 481 (emphasis

omitted), and marrying it with H&P-IDC’s oft-stated

observation that its shareholder rights were

“completely destroy[ed]” by PDVSA’s taking,

Helmerich IV, 743 Fed. App’x at 455, PDVSA argues

50a

that it, like the defendants in Nemariam, does not

own or control the expropriated property. But the

facts here tell a different story. Unlike Ethiopia in

Nemariam, PDVSA emphatically assumed the

expropriated property here, i.e., H&P-IDC’s interest

in the beneficial and productive value of H&P-V’s

drilling business. And the shareholder value

associated with that business has not been

extinguished or destroyed. It was instead transferred

into the hands of PDVSA, which is now reaping that

value through its operation of the drilling business.

Nemariam therefore does not prevent a finding that

the “owned or operated” requirement is satisfied in

this case.

Ivanenko is equally unhelpful to PDVSA. There, an

American company and its Ukrainian business

partner claimed that the Ukrainian government had

expropriated an automobile business they had

operated on land leased in Kiev. Ivanenko, 995 F.3d

at 239. Yet, the plaintiffs alleged that Ukraine had

“‘totally demolished’ their ‘business and buildings’”

and “destroyed” all their computers and other

business equipment. Id. at 238. Accepting these

allegations, the D.C. Circuit concluded that, even if

Ukraine was using the land that the business

formerly occupied, the plaintiffs failed to show that

Ukraine “owned or operated” the business. Id. at 237–

38. Here, again, PDVSA has not “destroyed” the

productive value of the H&P-V’s former drilling

business. To the contrary, it assumed operation and

control of the business following its expropriation.

Ivanenko is therefore inapposite as well.

51a

PDVSA’s argument that it does not own or operate

H&P-C’s expropriated property has more force when

it comes to H&P-IDC’s direct right to dispose of H&PV’s assets. That is because H&P-C’s direct right to

dispose of H&P-V’s assets is derivative of H&P-V

owning those assets. But, now that those assets have

been nationalized, the holder of the underlying

ownership right has changed. As a result, it appears

that PDVSA did, indeed, “extinguish[]” the

underlying right at issue, so that PDVSA could not

own or operate it within the meaning of the

expropriation exception. See Nemariam, 491 F.3d at

481.

3. Commercial Activity

Finally, for the FSIA’s expropriation exception to

apply, PDVSA must “engage[] in a commercial

activity in the United States.” 28 U.S.C. § 1605(a)(3).

A “foreign sovereign’s actions are ‘commercial’ within

the meaning of the FSIA” “when a foreign government

acts, not as regulator of a market, but in the manner

of a private player within it.” Republic of Argentina v.

Weltover, Inc., 504 U.S. 607, 614 (1992). PDVSA’s

commercial activity in the United States meets this

requirement.

H&P-IDC has shown that both PDVSA defendants

maintain commercial supply contracts with U.S.

incorporated entities, including PDVSA’s wholly

owned subsidiary CITGO. See Decl. of David Bowker,

Ex. 109 (2010 CITGO Offering Circular), at 93 (listing

several supply agreements with both PDVSA

defendants to supply refineries in the United States,

under which CITGO purchased a combined $3 billion

52a

of products).6 Moreover, the PDVSA parent company

holds significant commercial property interests in the

United States. See Decl. of David Bowker, Ex. 110

(2011 PDVSA Offering Circular), at 46 (noting that

PDVSA has a 50% interest in three refineries in the

United States). These are activities that could be

undertaken by a private entity, and they have the

requisite nexus to the United States. See Schubarth

v. Federal Republic of Germany, 891 F.3d 392, 400

(D.C. Cir. 2018) (holding that a state-owned

corporation had plausibly engaged in ongoing

commercial activity in the United States because it

engaged in “sales marketing” “to potential buyers in

the United States” and “made billions in land sales

through 2008” (citation omitted)). Indeed, while

PDVSA maintains that Servicios Petróleros, a secondtier subsidiary, does not have commercial contact

with the United States, Renewed Mot. Dismiss at 31–

32, it has not even attempted such an argument as to

the PDVSA defendants in either its briefing or at the

hearing. Therefore, the Court finds that all three

requirements for subject matter jurisdiction over a

foreign instrumentality under the expropriation

exception are met in this case.

B. Personal Jurisdiction

PDVSA next contends that the remaining claims

against PDVSA must be dismissed for lack of personal

jurisdiction, as “[t]he Supreme Court has repeatedly

held that foreign corporations are entitled to the

6 To appreciate CITGO’s commercial presence in the United

States, one need only look to its iconic sign just beyond the Green

Monster at Boston’s Fenway Park.

53a

protections of due process,” id. at 32–33 (citing

Daimler AG v. Bauman, 571 U.S. 117 (2014)), and

PDVSA lacks the contacts with this forum necessary

to establish personal jurisdiction consistent with due

process, id. at 34. H&P-IDC retorts that Venezuela’s

dominion and control over PDVSA is so complete as to

render the corporation the “alter ego” of the state.

Opp’n at 42–44. And a foreign state is “not a ‘person’

for purposes of the due process clause and cannot

invoke the minimum contacts test to avoid the

personal jurisdiction of the district court.” TMR

Energy Ltd., 411 F.3d at 302. Rather, an applicable

exception to immunity and proper service of process

suffices for personal jurisdiction over a foreign state

or its alter ego. Id. at 303 (citing 28 U.S.C. § 1330(b)).

PDVSA does not dispute that it was properly served.

Instead, it contends that Venezuela’s “ordinary

shareholder control” is insufficient to show that it is

the alter ego of the state. Reply at 20. It further

argues that a determination that it is an alter ego of

the state would require dismissal because the

expropriation

exception’s

commercial-nexus

requirement for claims against foreign states would

not be satisfied. Id. at 22–23. The Court will first

address whether the Due Process Clause protects

PDVSA before turning to the implications of that

question under the expropriation exception.

1. Alter Ego

First National City Bank v. Banco Para el Comercio

Exterior de Cuba (“Bancec”), 462 U.S. 611 (1983),

guides whether a state agency or instrumentality is a

“person” within the meaning of the Due Process

Clause and therefore entitled to its protections. See

54a

TMR Energy Ltd., 411 F.3d 301. Bancec established a

baseline

presumption

that

“government

instrumentalities established as juridical entities

distinct and independent from their sovereign should

normally be treated as such.” 462 U.S. at 626–27.

That presumption of separateness can be overcome,

however, in either of two circumstances: (1) where the

“corporate entity is so extensively controlled by its

owner that a relationship of principal and agent is

created,” or (2) when treating the two as separate

entities “would work fraud or injustice.” Id. at 629

(quoting Taylor v. Standard Gas Co., 306 U.S. 307,

322 (1939)). In determining whether the presumption

is overcome, courts consider:

(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) (quoting Walter Fuller Aircraft Sales, Inc. v.

Republic of Philippines, 965 F.2d 1375, 1380 n.7 (5th

Cir. 1992)). Application of these factors in light of

facts developed through jurisdictional discovery

demonstrates that PDVSA is “so extensively

controlled by its owner that a relationship of principal

and agent is created.” Bancec, 462 U.S. at 629. The

Court elaborates on each factor below.

55a

Economic Control. In a 2011 offering circular

issued to potential investors, PDVSA unreservedly

stated: “We are controlled by the Venezuelan

government, which ultimately determines our capital

investment and other spending programs.” Decl. of

Marcos Ruben Carrillo Perera, Ex. 11 (2011 PDVSA

Offering Circular), at 10. This acknowledgment is

borne out in the record. PDVSA’s Board of Directors

is made up of “nine . . . members appointed by decree

by the President of the Republic.” Decl. of Marcos

Ruben Carrillo Perera, Ex. 6 (August 30, 1975,

Official Gazette of Venezuela), at 2. The President of

Venezuela also appoints the President of PDVSA,

who, at the time of the expropriation of H&P-V’s

assets, was also the country’s Minister of Energy and

Petroleum. Decl. of Marcos Ruben Carrillo Perera, Ex.

9 (November 22, 2004, Official Gazette of Venezuela),

at 366.021 (appointing Rafael Darlo Ramirez Carreño

as President of PDVSA); Decl. of Marcos Ruben

Carrillo Perera, Ex. 10 (January 18, 2005, Official

Gazette of Venezuela), at 336.908 (appointing him as

Minister of Energy and Petroleum). Venezuelan

cabinet members set PDVSA’s annual budget, which

is then ratified by the President of Venezuela. Decl. of

Marcos Ruben Carrillo Perera, Ex. 13 (May 3, 2010,

Official Gazette of Venezuela), at 376.184. “For

reasons of economic, political sovereignty[,] and

national strategy,” the state is constitutionally

required to hold one-hundred percent of PDVSA’s

shares. Decl. of Marcos Ruben Carrillo Perera, Ex. 3

(Venezuelan Constitution), at 35. And under the

Partial Reform to the Central Bank of Venezuela Law

(“PRCB”), PDVSA may only “maintain funds in

foreign currency, with the favorable opinion of the

56a

Central Bank of Venezuela, for the purposes of its

operational payments abroad and investment.” Decl.

of Marcos Ruben Carrillo Perera, Ex. 19 (July 20,

2005, Official Gazette of Venezuela), at 340,429.

Given these undisputed facts, Venezuela’s economic

control over PDVSA is clear.

Profits. The uncontroverted evidence also shows

that Venezuela shares handsomely in PDVSA’s

profits. For starters, it levies hefty taxes on the

company. See Decl. of Marcos Ruben Carrillo Perera,

Ex. 4 (August 4, 2006, Official Gazette of Venezuela),

at 348,075–76 (2006 amendment to the Organic

Hydrocarbon Law (“OHL”) that levied several taxes

on PDVSA, including a general consumption tax of

30–50% of the purchase price of any hydrocarbon

product sold domestically). It also receives

substantial shareholder dividends. See Decl. of

Marcos Ruben Carrillo Perera, Ex. 16 (December 14,

2010, Official Gazette of Venezuela), at 4–5 (reporting

a dividend of 4.3 billion Bolivars from PDVSA in 2011

Budget Law). On top of that, it imposes social-giving

requirements on PDVSA. For example, the PRCB

requires the company to make monthly transfers to

“the Fund that the National Executive will create for

the purposes of financing investment projects in the

real economy and in education and health; improving

the profile and balance of public debt[.]” Decl. of

Marcos Ruben Carrillo Perera, Ex. 19 (July 20, 2005,

Official Gazette of Venezuela), at 340,429. PDVSA

contributed nearly $1.7 billion to the President’s fund

in 2010 alone. Decl. of Marcos Ruben Carrillo Perera,

Ex. 21 (PDVSA & Subsidiaries Consolidated

Financial Statements), at 66. While “[m]ajority

57a

shareholding and majority control of a board of

directors, without more, are not sufficient to establish

a relationship of principal to agent under FSIA,”

Venezuela’s hoovering of PDVSA’s profits far

outstrips the traditional dealings of parent and

subsidiary. Foremost-McKesson, 905 F.2d at 448.

Government management. The same goes for

management. PDVSA’s originating law declares that

“[t]he immediate direction and daily management of

the company’s business will be the responsibility of

the President [of PDVSA], who will also be its legal

representative.” Decl. of Marcos Ruben Carrillo

Perera, Ex. 6 (August 30, 1975, Official Gazette of

Venezuela) at 3 (official decree of the Venezuelan

president). As mentioned, the President of PDVSA is

also a Cabinet member of the Venezuelan

government. See Decl. of Marcos Ruben Carrillo

Perera, Exs. 9, 10. “[D]aily management” is exactly

the kind of control that “significantly exceeds the

normal supervisory control exercised by any corporate

parent over its subsidiary and, indeed, amounts to

complete

domination

of

the

subsidiary.”

Transamerica Leasing, Inc. v. La Republica de

Venezuela, 200 F.3d 843, 848 (D.C. Cir. 2000). And the

OHL further states that the Ministry of Energy and

Petroleum is a “dependent body” of “[t]he National

Executive,” which “shall exercise the functions of

inspection and control of the State-owned oil

companies and their affiliates, both in the domestic

and in the international context, and shall issue the

guidelines and policies that must be complied with

pursuant to the matters referred to in this Law.” Decl.

of Marcos Ruben Carrillo Perera, Ex. 4 (August 4,

58a

2006, Official Gazette of Venezuela), at 348,078

(emphasis added) (2006 amendment to the OHL).

Through this control, Venezuela ensures that PDVSA

will “comply with and execute the policy issued on

hydrocarbon matters by the National Executive.”

Decl. of Marcos Ruben Carrillo Perera, Ex. 6 (August

30, 1975, Official Gazette of Venezuela), at 1 (official

decree of the Venezuelan president).

Real Beneficiary. The record further demonstrates

that the Venezuelan government is the real

beneficiary of PDVSA’s business activities. The

government explicitly uses PDVSA’s funds for its own

policy goals. The OHL declares: “[t]he revenues

received by the Nation in connection with

hydrocarbons shall be utilized to finance health,

education,

development

of

macroeconomic

stabilization funds and investment in production, in

order to obtain an appropriate linkage of petroleum

with the domestic economy, all directed toward the

well-being of the people.” Decl. of Marcos Ruben

Carrillo Perera, Ex. 4 (August 4, 2006, Official

Gazette of Venezuela), at 348,077 (2006 amendment

to the OHL). These goals are “not merely

aspirational.” Amaplat Mauritius Ltd. v. Zim. Mining

Dev. Corp., No. 22-CV-58 (CRC), 2024 WL 519583, at

*4 (D.D.C. Feb. 9, 2024) (quoting OI European Grp.

B.V. v. Bolivarian Republic of Venezuela, 73 F.4th

157, 172 (3d Cir. 2023)). In 2006, PDVSA’s Board of

Directors, which, as noted, is comprised of nine

presidential appointees, agreed to divert 10% of

PDVSA’s oil investments to “social development . . .

aimed at helping national, regional and local

authorities and bodies in the construction of

59a

Bolivarian socialism.” See Decl. of Marcos Ruben

Carrillo Perera, Ex. 17 (2011 PDVSA Management

Report), at 157–58. In 2007, PDVSA established and

funded a new subsidiary, PDVSA Agrícola S.A., to

“contribut[e] to the sustainable agricultural

development of the country.” Id. at 23. And in 2011,

the year of the expropriation here, PDVSA

contributed nearly $40 million to “missions and social

programs.” Id. at 158.

PDVSA’s “social contributions” to Venezuela are

apparently so substantial that the company stated to

potential investors that its commitments “may affect

our ability to place additional funds in reserve for

future uses and, indirectly, our commercial affairs.”

Decl. of Marcos Ruben Carrillo Perera, Ex. 11 (2011

PDVSA Offering Circular), at 10. Moreover, the

company “cannot assure [potential investors] that the

Venezuelan government will not, in the future,

impose further material commitments.” Id. “As other

courts

have

found,

officials’

use

of

an

instrumentality’s funds for personal gain or policy

goals contributes to the creation of an alter-ego

relationship.” Amaplat, 2024 WL 519583, at *5. That

is clearly so here.

Benefits Without Obligations. H&P-IDC has not

offered evidence that “adherence to separate

identities would entitle [Venezuela] to benefits in

United States courts while avoiding its obligations.”

Rubin, 582 U.S. at 201 (quoting Walter Fuller Aircraft

Sales, Inc., 965 F.2d at 1380 n.7). But as the Court

has recognized before, this fifth Bancec factor bears

less on the presence of a principal-agent relationship

than on Bancec’s second exception to the presumption

60a

of separateness between a foreign state and its

instrumentality—whether treating the two entities

as separate “would work fraud or injustice.” Amaplat,

2024 WL 519583, at *3 n.2; see also Rubin, 583 U.S.

at 210 (noting that the Bancec factors are not a

“mechanical formula” (quoting Bancec, 462 U.S. at

633)). As such, it does not tip the balance in PDVSA’s

direction.

PDVSA does not contest any of these facts. It

contends only that they amount to “ordinary

shareholder control,” and that abuse of the corporate

form is required for an alter ego determination. See

Reply at 19–20; Hr’g Tr. at 20–21. But the D.C.

Circuit has expressly separated Bancec’s fraud-orinjustice exception from its principal-agent exception.

Transamerica Leasing, Inc., 200 F.3d at 848. And to

satisfy the agency exception, the D.C. Circuit has

required “at a minimum” that:

the parent has manifested its desire for the

subsidiary to act upon the parent’s behalf, the

subsidiary has consented so to act, the parent

has the right to exercise control over the

subsidiary with respect to matters entrusted to

the subsidiary, and the parent exercises its

control in a manner more direct than by voting a

majority of the stock in the subsidiary or making

appointments to the subsidiary’s Board of

Directors.

Id. at 849.

That minimum has been met here. Venezuela has

expressly manifested its desire for PDVSA to act on

its behalf by declaring that PDVSA “will comply with

61a

and execute the policy issued on hydrocarbon matters

by the National Executive.” Decl. of Marcos Ruben

Carrillo Perera, Ex. 6 (August 30, 1975, Official

Gazette of Venezuela), at 1 (official decree of the

Venezuelan president). PDVSA correspondingly

acknowledges that it is “controlled by the Venezuelan

government[.]” Decl. of Marcos Ruben Carrillo Perera,

Ex. 11 (2011 PDVSA Offering Circular), at 10.

Venezuela has plenary power over PDVSA because

the President of Venezuela “exercise[s] the functions

of inspection of control” over PDVSA and all of its

subsidiaries, including their “immediate direction

and daily management” via the “dependent body” of

the Ministry of Energy and Petroleum. Decl. of

Marcos Ruben Carrillo Perera, Ex. 4 (August 4, 2006,

Official Gazette of Venezuela), at 348,078 (2006

amendment to the OHL); Decl. of Marcos Ruben

Carrillo Perera, Ex. 6 (August 30, 1975, Official

Gazette of Venezuela) at 3 (official decree of the

Venezuelan president). And instead of exercising this

power just by voting its shares and appointing its

representatives, Venezuela controls PDVSA by

releasing official decrees and new laws over which

PDVSA has no control and that are, at times, to its

economic detriment. See Carrillo Perera Decl. Ex. 11

(2011 PDVSA Offering Circular), at 10. Most salient

here, PDVSA carried out the forcible taking of H&PV at the explicit direction of the National Assembly

and President Chávez. Decl. of David Bowker, Ex. 29

(June 30, 2010, Official Gazette of Venezuela), at

377,601 (Decree No. 7,532 by President Chávez).

Taking all factors into account, the Court has little

trouble finding that PDVSA is Venezuela’s alter ego

62a

and therefore lacks due process protections. The

Court is not alone in this conclusion. See Crystallex

Int’l Corp. v. Bolivarian Republic of Venezuela, 932

F.3d 126, 152 (3d Cir. 2019) (“Indeed, if the

relationship between Venezuela and PDVSA cannot

satisfy the Supreme Court’s extensive-control

requirement, we know nothing that can.”). Proper

service under 28 U.S.C. § 1608 and subject matter

jurisdiction via the expropriation exception therefore

establish personal jurisdiction.

PDVSA presses one last jurisdictional argument, to

which the Court now turns: that a finding of alter ego

under the Due Process Clause requires dismissal

under the FSIA for lack of subject matter jurisdiction.

2. Effects of Alter Ego Finding

PDVSA contends that if it is an alter ego of

Venezuela under Bancec, and therefore not entitled to

due process protections, the foreign sovereign clause

of 28 U.S.C. § 1605(a)(3) must also apply. See Reply

at 21–23. If that were so, the Court would lack

jurisdiction over H&P-IDC’s claim because the

expropriated property lies outside the United States.

See De Csepel, 859 F.3d at 1107 (holding that “a

foreign state retains its immunity unless the first

clause of the commercial-activity nexus requirement

is met,” including that the expropriated property is in

the United States). PDVSA asserts that Bancec

controls both analyses even though Bancec relied on

international and federal common law rather than

the statutory provisions of the FSIA. See Reply at 23;

Bancec, 462 U.S. at 621–23. The Court disagrees.

63a

An agency or instrumentality under the FSIA may

also be the alter ego of the sovereign for due process

purposes. The D.C. Circuit said as much in TMR

Energy Ltd., explaining that “the meaning of the

statutory terms ‘foreign state’ and ‘agency or

instrumentality’” within the FSIA implicates a

different analysis than “whether . . . [an agent of the

state] is a ‘person’ within the meaning of the due

process clause of the fifth amendment.” 411 F.3d at

301. Whereas Transaero, Inc. v. La Fuerza Aerea

Boliviana, 30 F.3d 148 (D.C. Cir. 1194), held that

courts should look to an entity’s “core functions” and

whether they are “predominantly governmental or

commercial” in determining whether to treat an

instrumentality as the foreign state itself under the

FSIA, id. at 151, the due-process inquiry is guided by

Bancec’s principal-agent and fraud-or-injustice

exceptions. TMR Energy Ltd., 411 F.3d at 301.

Because these tests answer different questions, they

need not come to the same answer. Accordingly, on

the facts before it in TMR Energy Ltd., the Circuit

accepted that the foreign entity at issue was “an

‘agency or instrumentality’ of the State of Ukraine

within the meaning of the FSIA” rather than the

foreign sovereign itself but still concluded that

Bancec’s principal-agent exception applied. Id. at 300,

302 n.*.

Under TMR Energy Ltd., then, the Court’s

determination that PDVSA is Venezuela’s alter ego

for purposes of personal jurisdiction does not affect its

exercise of subject matter jurisdiction. A finding of

alter ego does not require identical treatment of

sovereign and subsidiary across the jurisdictional

64a

analysis or collapse other legal distinctions between

the two. Cf. Agudas Chasidei Chabad of U.S. v.

Russian Federation, 110 F.4th 242, 254 (D.C. Cir.

2024) (noting that even if the foreign state’s

subsidiary was “in fact an alter ego,” it “would not

change the jurisdictional finality analysis” because

the subsidiary lacked notice of the foreign state’s

suit). The Court is therefore satisfied that it has both

subject matter and personal jurisdiction.

As a result, the Court will proceed to PDVSA’s final

argument: that the case should be dismissed on the

merits under the act-of-state doctrine.

C. Act-of-State Doctrine

PDVSA maintains that H&P-IDC’s claim is barred

by the act-of-state doctrine, which “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.” Renewed Mot.

Dismiss at 35 (quoting Banco Nacional de Cuba v.

Sabbatino (“Sabbatino”), 376 U.S. 398, 401 (1964)).

The doctrine applies when “the relief sought or the

defense interposed would . . . require[] a court in the

United States to declare invalid the official act of a

foreign sovereign performed within” its boundaries.

W.S. Kirkpatrick & Co., Inc. v. Env’t Tectonics Corp.,

493 U.S. 400, 405 (1990). The parties’ dispute on this

issue centers around the Second Hickenlooper

Amendment, 22 U.S.C. § 2370(e)(2), which Congress

passed after the Supreme Court barred adjudication

of an expropriation claim on act-of-state grounds in

Sabbatino. Federal Republic of Germany v. Philipp,

592 U.S. 169, 179 (2021). The Second Hickenlooper

Amendment “permit[s] adjudication of claims the

65a

Sabbatino decision had avoided—claims against

foreign nations for expropriation of American-owned

property.” Id. It reads in relevant part:

[N]o 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 including a foreign state

(or a party claiming through such state) based

upon (or traced through) a confiscation or other

taking after January 1, 1959, by an act of that

state in violation of the principles of

international law, including the principles of

compensation and the other standards set out in

this subsection[.]

22 U.S.C. § 2370(e)(2). PDVSA challenges the

application of this statutory provision on three

grounds: (1) there is no violation of international law;

(2) the provision does not apply to damages claims, as

opposed to claims for title to property; and (3) the

property at issue is not located in the United States.

Renewed Mot. Dismiss at 36–38. The Court has

already found a violation of international law, see

infra Section II.A.1, so only PDVSA’s second two

contentions warrant further discussion.

1. Claims for Damages

PDVSA asserts that the Second Hickenlooper

Amendment’s reference to “claim[s] of title or other

right[s] to property” restricts its application to claims

seeking the return of property. Renewed Mot. Dismiss

at 37 (emphasis omitted) (quoting 22 U.S.C. §

66a

2370(e)(2)). The Amendment does not, in PDVSA’s

view, allow damages claims like H&P-IDC’s. Its lone

support for this interpretation is a New York state

case from 1968. Id. (citing French v. Banco Nacional

de Cuba, 23 N.Y.2d 46, 57–58 (N.Y. 1968) (“The

amendment applies only if there is a ‘claim of title or

other right to property,’ and that claim is ‘based upon

(or traced through) a confiscation or other taking’ of

such property.”)). But even that case, involving a

breach-of-contract claim arising out of a Cuban

currency regulation, acknowledges that the “claim of

title or other right to specific property” language in

the Amendment refers to “specific property which had

been expropriated abroad.” See French, 23 N.Y.2d at

58–59 (emphasis added). In other words, that

language might limit the Amendment’s application to

claims arising from property interests, but not to the

type of relief sought.

While the D.C. Circuit has never squarely ruled on

this issue, it has stated that “the Hickenlooper

Amendment creates an exception to the act of state

doctrine for a claim involving the expropriation of a

‘claim of title or other right to property.’” Nemariam,

491 F.3d at 479 (quoting 22 U.S.C. § 2370(e)(2))

(emphasis added). In line with this formulation, H&PIDC contends that its right to property was

expropriated and therefore that the exception applies,

regardless of whether it seeks damages or return of

the property as relief. Opp’n at 45. Lacking any

contradictory authority, the Court agrees that the

Second Hickenlooper Amendment also applies to

damages claims.

67a

2. Location in the United States

PDVSA’s final contention is that the Second

Hickenlooper Amendment greenlights expropriation

claims only when the underlying property is located,

or was located, in the United States. This assertion is

divorced from the Amendment’s plain text, which

imposes no such requirement. That said, the Second

Circuit, relying on the Amendment’s legislative

history, has limited its application in this way. See

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

N.Y. (“Banco Nacional”), 431 F.2d 394, 402–04 (2d

Cir. 1970), vacated, 400 U.S. 1019 (1971), aff’d on

remand, 442 F.2d 530 (2d Cir. 1971), rev’d on other

grounds, 406 U.S. 759 (1972) (“Banco Nacional IV”);

Empresa Cubana Exportadora de Azucar y Sus

Derivados v. Lamborn & Co., Inc., 652 F.2d 231, 237

(2d Cir. 1981) (citing Banco Nacional for the

proposition that the Amendment applies “only to

cases in which the expropriated property has found

its way back into the United States”). And the Fifth

Circuit and another judge in this district have

subsequently adopted that Second Circuit position.

See Compania de Gas de Nuevo Laredo, S.A. v. Entex,

Inc., 686 F.2d 322, 327 (5th Cir. 1982) (applying

principle from Banco Nacional to “hold that the

Hickenlooper amendment is inapplicable because

neither the nationalized property nor its proceeds are

located in the United States”); Rong v. Liaoning

Province Gov’t, 362 F. Supp. 2d 83, 99 (D.D.C. 2005)

(“[T]he Amendment is inapplicable because the

property at issue is not located in the United States.”

(citing Compania, 686 F.2d 322, and Empresa, 652

F.2d 231)), aff’d on other grounds, 452 F.3d 883 (D.C.

68a

Cir. 2006).7 While these decisions have some force,

each relies either directly or indirectly on Banco

Nacional, which the Supreme Court first summarily

reversed, see 400 U.S. at 1019, and then reversed in a

reasoned opinion that did not reach the merits of the

Second Hickenlooper Amendment issue, Banco

Nacional IV, 406 U.S. at 770.

PDVSA also cites the Restatement (Third) of

Foreign Relations Law of the United States (1987) §

444 cmt. e, which states: “In order for the

Hickenlooper Amendment to apply, the plaintiff must

allege and prove that the property that is the subject

of the claim is in the United States or was there at the

time the action was commenced.” But the

Restatement (Fourth) of Foreign Relations Law of the

United States (2018) § 441 cmt. h speaks in more

qualified terms: “Courts have given a narrow

interpretation to the scope of the Second Hickenlooper

Amendment . . . largely confin[ing] it to disputes over

tangible property when either the property in

question or proceeds from the property in question are

within U.S. territory at the time of the suit.” And the

Restatements are not binding. Cf. Cobb v. Wash.

Metro. Area Transit Auth., No. 20-CV-3522 (BAH),

2021 WL 2935891, at *7 n.4 (D.D.C. July 13, 2021)

(“Restatements are statements of general legal

principles, not binding law.”).

7 The D.C. Circuit did not weigh in on the act-of-state doctrine

in the Rong appeal because the plaintiff did not appeal the

district court’s decision regarding the expropriation exception.

See 452 F.3d 883, 887 n.5 (D.C. Cir. 2006).

69a

In breaking ranks with these authorities, this

Court is guided by the decisions of its own Circuit. In

Ramirez de Arellano v. Weinberger, 745 F.2d 1500

(D.C. Cir. 1984) (en banc), vacated and remanded

because of subsequent legislation, 471 U.S. 1113

(1985), the en banc D.C. Circuit rejected “the

suggestion that the word ‘property’ in the statute

must invariably be limited to expropriated personal

property located in the United States.” Id. at 1542

n.180. The Circuit reasoned that “the broad,

unqualified language of the carefully drafted

amendment belies the narrow reading” that would

impose the additional requirement of location in the

United States, particularly when “[t]he purposes of

the amendment include the promotion and protection

of United States investment in foreign countries

(which characteristically has always principally been

land, minerals, and large fixed immovables)[.]” Id.

The Circuit acknowledged the Second Circuit’s

contrary decision in Banco Nacional, but stated: “By

no twist of legal imagination can the Supreme Court’s

reversal (of the Second Circuit’s general holding that

the act of state doctrine controlled the case) constitute

approval of the reasoning relied on by the court of

appeals with respect to the meaning of the Second

Hickenlooper Amendment.”8 Id. Though the Circuit

8 In a footnote in his dissent in Banco Nacional IV, Justice

Brennan acknowledged that the Second Circuit had “found

inapplicable the Hickenlooper Amendment” and stated that he

“agree[d] with [his] colleagues in leaving that determination

undisturbed.” 406 U.S. at 780 n.5 (Brennan, J., dissenting).

While Justice Brennan may have understood “[his] colleagues

[to] leav[e] that determination undisturbed,” the D.C. Circuit

explicitly refused to treat the Supreme Court’s Banco Nacional

70a

found that “[a]n accomplished, uncompensated

confiscation of the plaintiffs’ ranch by the Honduran

government would squarely bring [22 U.S.C. §

2370(e)(2)] into play, foreclosing any deference based

on the act of state doctrine,” it declined to determine

whether the Second Hickenlooper Amendment

applied in the case before it because “[s]uch a

determination must rest on the applicability of these

barriers in light of the facts—if any—found by the

district court[.]” Id. at 1543. Intervening events

prevented the D.C. Circuit or the district court from

revisiting the issue. See De Arellano v. Weinberger,

788 F.2d 762, 763–64 (D.C. Cir. 1986) (explaining that

the Supreme Court vacated the Ramirez opinion and

remanded based on the passage of the Foreign

Assistance and Related Programs Appropriations Act

and the “intervening withdrawal of all U.S. military

personnel and facilities from plaintiffs’ land,” so the

case was “too attenuated” for the equitable relief

sought).

Decades later, however, in Agudas Chasidei

Chabad of U.S. v. Russian Federation (“Agudas II”),

528 F.3d 934 (D.C. Cir. 2008), the D.C. Circuit again

rejected the same argument, at least implicitly. See

id. at 938–39. Agudas II involved the Russian

Federation’s alleged expropriation of a collection of

religious books and manuscripts, some of which were

held in a Russian library. Id. at 938. The district court

held that the act-of-state doctrine barred review of the

IV plurality or concurring opinions—none of which even

mentioned the Second Hickenlooper Amendment—as an implicit

endorsement of the Second Circuit’s position.

71a

claim because “the Library’s appropriation and

transfer to state facilities was done in accordance

with official government directives.” Agudas Chasidei

Chabad of U.S. v. Russian Federation, 466 F. Supp.

2d 6, 26–27 (D.D.C. 2006). The D.C. Circuit reversed

because “the Hickenlooper Amendment normally bars

application of the act of state doctrine to seizures

occurring after January 1, 1959.” 528 F.3d at 953

(citation omitted). The Circuit made no reference to

any limitations on the Amendment’s application, such

as the location of the property, even though the issue

was presented—the district court’s original decision

noted that the expropriated property “is located in

Russia,” and the Russian Federation specifically

argued that the presence of the property in Russia

barred application of the Hickenlooper Amendment.

Id. at 29; see also Agudas Chasidei Chabad of United

States v. Russian Federation, No. 05-CV-1548 (RCL),

2020 WL 13611456, at *15 (D.D.C. Nov. 6, 2020)

(noting that the expropriated property “remain[s] in

Russia”); Appellants’ Reply & Cross-Appellees’ Brief

at 41, Agudas II, 528 F.3d 934 (No. 07-7002), 2008 WL

458607 (contending that the “Hickenlooper

Amendment applies only where the property at issue

is in the United States” and citing supporting out-ofcircuit caselaw). Therefore, this Court understands

the D.C. Circuit’s statement that “the [act-of-state]

doctrine poses no apparent barrier to the plaintiff’s

claim,” Agudas II, 528 F.3d at 953, to implicitly rest

on the broader reading of the Second Hickenlooper

Amendment that the Circuit had previously endorsed

in Ramirez.

72a

While the Court acknowledges the conflicting

authorities, its reading of the D.C. Circuit’s guidance

leads to the conclusion that the Second Hickenlooper

Amendment is not confined to cases where the

expropriated property has found its way into the

United States. Cf. West v. Multibanco Comermex,

S.A., 807 F.2d 820, 830 (9th Cir. 1987) (concluding

that even intangible property comes under the

Amendment’s protection and citing Ramirez, 745 F.2d

at 1542 n.180)). Although Ramirez was ultimately

vacated, the Circuit has consistently held that

“[w]hen the Supreme Court vacates a judgment of

[the D.C. Circuit] without addressing the merits of a

particular holding in the panel opinion, that holding

‘continue[s] to have precedential weight, and in the

absence of contrary authority, we do not disturb’ it.”

United States v. Adewani, 467 F.3d 1340, 1342 (D.C.

Cir. 2006) (alteration in original) (quoting Action All.

of Senior Citizens of Greater Phila. v. Sullivan, 930

F.2d 77, 83 (D.C. Cir. 1991)). And while PDVSA may

be correct that the Court is not formally bound by

Ramirez, the D.C. Circuit has never reversed course

on its determination there that expropriated property

need not be located in the United States for the

Second Hickenlooper Amendment to apply, even

when given the opportunity in Agudas II. Moreover,

if this Court were starting from first principles, it

would agree with Ramirez because its interpretation

is more consistent with the Amendment’s plain text.

The act-of-state doctrine, accordingly, does not bar

H&P-IDC’s claims.

*

*

*

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In the absence of any bar to the continuation of this

case, the Court will, consequently, deny PDVSA’s

motion to dismiss.

III.

Conclusion

For these reasons, it is hereby

ORDERED that [ECF No. 156] Defendants’

Motion to Dismiss is DENIED.

SO ORDERED.

CHRISTOPHER R. COOPER

United States District Judge

Date: September 20, 2024

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APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

___________

No. 24-7161

September Term, 2025

1:11-cv-01735-CRC

Filed on: December 3, 2025

HELMERICH & PAYNE INTERNATIONAL DRILLING CO.,

APPELLEE

v.

PETROLEOS DE VENEZUELA, S.A. AND PDVSA

PETROLEO, S.A.,

APPELLANTS

___________

BEFORE:

Srinivasan, Chief Judge; Henderson,

Millett, Pillard, Wilkins,* Katsas,

Rao, Walker, Childs, Pan, and

Garcia, Circuit Judges

___________

ORDER

Upon consideration of appellants’ petition for

rehearing en banc, and the absence of a request by

any member of the court for a vote, it is

ORDERED that the petition be denied.

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Per Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

BY: /s/

Lillian R. Wright

Deputy Clerk

*Circuit Judge Wilkins did not participate in this

matter.