Venezuela V. Helmerich: Will Formalism Win Over Substantive Law? Again?
On Wednesday, November 2, the Supreme Court heard oral arguments in Venezuela v. Helmerich & Payne International.1 The Court granted certiorari on the following question: Whether the pleading standard for alleging that a case falls within the FSIA's expropriation exception is more demanding than the standard for pleading jurisdiction under the federal-question statute, which allows a jurisdictional dismissal only if the federal claim is wholly insubstantial and frivolous.2
The Foreign Sovereign Immunities Act (“FSIA”) 3 provides a framework for determining when a foreign state may be subject to the jurisdiction of the federal or state courts of the United States. At issue in Helmerich is the expropriation exception under §1605(a)(3), which provides: A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . in which rights in property taken in violation of international law are in issue and 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 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.4
The plaintiffs claim that they fall within this exception and that the foreign defendant state should therefore be subject to jurisdiction in the courts of the United States.5 The question as presented, shows a deep interdependence between jurisdictional and pleading standards.6 This interdependence should be of no surprise as both the jurisdictional inquiry and the pleading inquiry are dependent on the claim: the first asking whether the court has jurisdiction over the plaintiff’s claim, and the second asking whether the claim is legally sufficient. The difference between the two inquiries lays in the different threshold required to pass the sufficiency test: the jurisdictional inquiry applies a lower threshold (not “wholly insubstantial” or “frivolous”), while the pleading sufficiency inquiry applies a higher one (“plausibility”).7
