INTERNATIONAL LAW--United States Quickly Shuts Door to Cuba in Most Recent Jurisdictional FSIA Case--Jerez v. Republic of Cuba, 775 F.3d 419 (D.C. Cir. 2014).
The Foreign Sovereign Immunities Act (FSIA) is the basis for obtaining jurisdiction over a foreign state in United States courts. (1) To fall within the bounds of immunity provided by the FSIA and its exceptions, the alleged acts of a foreign state must occur within the United States. (2) In Jerez v. Republic of Cuba, (3) the United States Court of Appeals for the District of Columbia Circuit considered whether or not a creditor's claims against the Republic of Cuba fell within the two most commonly used exceptions to the FSIA and if the United States District Court in Florida had jurisdiction to hear the case. (4) The Court of Appeals held that the claims brought forward by the appellant, Jerez, did not fall within the scope of the FSIA or its exceptions, and that the Florida District Court lacked jurisdiction. (5)
The Plaintiff, Nilo Jerez, was a Cuban citizen who immigrated to the United States after being incarcerated under the regime of Fidel Castro and the Cuban Revolutionary Armed Forces. (6) He alleged that the unlawful incarceration that he faced while in Cuba in the 1960s and 1970s caused damage to him both physically and mentally, and that this damage continues to haunt him today. (7) Jerez alleged that the Cuban Government purposefully and continuously injected him with the Hepatitis C virus, and that the effects of that virus linger. (8)
In 2005, after arriving in the United States, Jerez sued the Republic of Cuba for compensatory and punitive damages in the Florida State Court. (9) The Republic of Cuba failed to appear, and thus the court awarded Jerez a USD200,000,000.00 default judgment based on the Republic of Cuba's violation of the Torture Victim Protection Act (TVPA). (10) Jerez then brought suit in the United States District Court for the Southern District of Florida in order to enforce the default judgment, where the Republic of Cuba was again absent, and the court awarded Jerez a default judgment in the amount of USD200,000,000.00. (11) Along with the default judgment, Jerez also applied for various writs of attachment on patents and trademarks that the appellees held at the time of judgment. (12) The Republic of Cuba moved to vacate the writ of attachment, and a magistrate judge found that under the FSIA, the Florida state and district courts lacked the jurisdiction to grant the default judgments and granted the appellee's motions to vacate. (13) Jerez then filed an appeal with the District of Columbia Court of Appeals, who affirmed the district court's ruling and held that there was a lack of jurisdiction. (14)
Historically, international law granted foreign states complete and absolute immunity from suits brought in the United States to ensure independence of sovereign nations and maintain foreign relations. (15) By codifying the FSIA, the United States shifted from absolute sovereign immunity towards restrictive sovereign immunity allowing individuals under certain circumstances to bring suit against foreign sovereigns in U.S. courts. (16) A sovereign nation will have immunity so long as that state is a foreign state and a statutory exception to immunity is not applicable. (17) Traditionally, sovereign immunity applied to a foreign sovereign nation made a party to litigation, not the individuals who performed the acts on behalf of the sovereign. (18)
One of the more commonly used exceptions is the noncommercial tort exception to the FSIA. (19) In order for this exception to be considered and applied by courts, a Plaintiff's actions against the sovereign state had to have occurred in the United States. (20) With the stringent restrictions placed upon the non-commercial tort exception, many plaintiffs have attempted to apply this exception, few with success. (21) The case of Persinger v. Islamic Republic of Iran (22) established when the noncommercial tort exception to the FSIA is applied. (23) In Persinger, the plaintiff brought charges against the Islamic Republic of Iran in 1981 for numerous violations of international treaties. (24) The United States Court of Appeals for the District of Columbia Circuit held that Iran was allowed sovereign immunity because the plaintiff's claims did not occur in the United States, and therefore the non-commercial tort exception to the FSIA was not applicable and subject matter jurisdiction did not exist over Iran. (25)
In addition to the non-commercial tort exception individuals also commonly assert the terrorism exception, which is widely used in the FSIA. (26) In order for the terrorism exception to apply a plaintiff needs to establish the torturous conditions they endured, came at the hands of a sovereign state that is designated as a state sponsor of terrorism. (27) The first case that applied this exception after its passage was Alejandre v. Republic of Cuba, (28) which established that the terrorism exception pertained to a sovereign state. (29) In Alejandre, Cuban forces shot down U.S. citizen pilots over international waters while they were attempting to provide humanitarian relief to Cuban citizens. (30) The court found that the terrorism exception applied and Cuba should be subject to judgment in U.S. courts because the citizens were naturalized in the United States, the act happened outside of the United States, and Cuba was designated a state sponsor of terrorism, deeming immunity in the United States to be unwarranted. (31) Alejandre opened the door for plaintiffs to claim Cuba may or may not fall within the purview of the terrorism exception, provided the factors of the terrorism exception were relevant. (32)
In Jerez v. Republic of Cuba, the Court of Appeals for the District of Columbia considered whether or not the Foreign Sovereign Immunities Act and its exceptions granted the court jurisdiction over Cuba in U.S. courts for terroristic actions committed against a U.S. naturalized citizen. (33) The court began its analysis by deconstructing the enforcement of the default judgment to determine if the Florida District Court lacked jurisdiction, which would ultimately overturn the judgment granted in favor of the plaintiff. (34) Utilizing the constraints of the FSIA, the District of Columbia Circuit held that the defendants were afforded a special protection from having default judgments rendered against them, as they were not able to litigate in court. (35)
While considering a de novo assessment of the Florida court's jurisdiction, the court analyzed the two exceptions to the FSIA that the plaintiff asserted. (36) The court first analyzed the non-commercial tort exception and held that this particular exception did not apply because the tortious acts did not occur in the United States. (37) Next, the court analyzed the terrorism exception to the FSIA and determined that the application of the terrorism exception was difficult to apply based on the facts and allegations. (38) The court held that based on the fact that the terroristic act occurred in Cuba and not in the United States, and Cuba was not declared a state sponsor of terrorism at the time of the acts, as stipulated by the requirements of the terrorism exception, the plaintiff's argument was without merit. (39) With none of the exceptions to the FSIA applicable, the D.C. Circuit determined that the Florida courts did not have subject matter jurisdiction and the judgments in favor of the plaintiff were void. (40)
The District of Columbia Circuit correctly affirmed the district court decision in finding that Cuba retained sovereign immunity. (41) By upholding the decision that jurisdiction did not exist, the District of Columbia Circuit maintained the intent of the FSIA and assured that foreign states remain equal sovereigns. (42) Further, the District of Columbia Circuit's holding is in line with precedent case law interpreting the reach of FSIA and ensures that foreign relations with Cuba are not negatively impacted or burdened. (43)
Although the torture Jerez endured while in Cuba was heinous, the court appropriately determined that based on the alleged facts, he was unsuccessful in satisfying any of the exceptions to FSIA and thus sovereign immunity could not be limited. (44) While analyzing the exceptions to the FSIA, the court properly interpreted the language of the exceptions and ensured that Jerez would not be erroneously granted jurisdiction in a U.S. court. (45) In correctly analyzing the non-commercial tort exception, the court was unable to find a causal link between the events Jerez alleged and the United States. (46) Despite Jerez's argument that the constant replication of the Hepatitis C virus constituted a separate tort that was now occurring in the United States, thus creating a causal link between the United States and the torture, he was nonetheless unable to satisfy the exception. (47) The court also correctly analyzed the terrorism exception in finding that because Cuba was not a designated state sponsor of terrorism at the time Jerez was tortured, the terrorism exception was inapplicable. (48) Had Cuba been designated as a state sponsor of terrorism at the time the torture occurred, there still would have been no recourse for Jerez, because Jerez was not a U.S. citizen, or naturalized citizen at the time of the torture. (49)
FSIA is not the only statute that Jerez could have applied in order to gain judgment in his favor. (50) The Alien Tort Claim Act (ATCA) is a statute that could have been applied to circumvent sovereign immunity when used against individuals of a foreign sovereign country. (51) Jerez may have had a claim against the individuals who inflicted the horrific acts of torture against him, however that still would not have granted the court jurisdiction over Cuba, because of the sovereign immunity Cuba has. (52) In the future, other plaintiffs may look to the ATCA as a...