AuthorSader, Stephanie M.

Ordinarily, a country is immune from being subjected to legal proceedings in another country. (1) To enumerate this protection, the United States codified the Foreign Sovereign Immunities Act ("FSIA"), which limits the possibility for foreign sovereign nations to be sued in United States' courts. (2) The United States Court of Appeals for the First Circuit faced the issue in Sullivan v. Republic of Cuba (3), of whether the Foreign Sovereign Immunities Act's terrorism exception applies to the extrajudicial killing of a United States citizen that Cuba allegedly committed. (4) The First Circuit held that the previous default judgment against Cuba for allegedly committing the extrajudicial killing lacked subject matter jurisdiction, and could not be enforced. (5)

In October 1963, Geoffrey Sullivan, who served in the United States Air Force and the Army National Guard, disappeared. (6) This prompted his daughter, Sherry Sullivan ("Sullivan") to attempt to uncover what happened to her father by gathering evidence pertaining to his disappearance. (7) Sullivan concluded that during a mission against Cuba, her father was captured, imprisoned, and later died in custody. (8) This provoked Sullivan to sue the defendant, the Republic of Cuba ("Cuba"), in 2007 for wrongful death. (9) Despite being properly served, Cuba did not appear in Maine Superior Court, and Sullivan was subsequently awarded "$21 million in damages for loss of support, severe emotional distress, and damages to her father's estate, including compensation for his pain and suffering." (10)

Despite the judgment, Sullivan was unable to collect any of her awarded damages from Cuba and sought to enforce the default judgment in the United States District Court for the District of Maine. (11) The federal district court asked Sullivan to determine if there was proper subject matter jurisdiction for the original action and to provide sufficient evidence of the extrajudicial killing. (12) After hearing Sullivan's arguments, the court denied the motion for default judgment, dismissed the case for lack of subject matter jurisdiction, and found that Geoffrey Sullivan was not extrajudicially killed by Cuba. (13)

In 1976, the Foreign Sovereigns Immunities Act set the legal standard for foreign state immunity in civil actions. (14) As a result of this immunity, plaintiffs are forced to find an exception that will allow them to sue a foreign sovereign nation. (15) In 2008, Congress amended the FSIA to add the terrorism exception, which gave plaintiffs a greater opportunity to sue foreign states. (16) However, for a court to hear a claim under the terrorism exception, the state being sued must be a state sponsor of terrorism at the time of the specific act or when the claim was filed. (17) Thus, if a plaintiff is arguing that an extrajudicial killing occurred, the requisite elements for an extrajudicial killing must first be proven. (18) Then, the plaintiff must also prove that the state committed the killing when it was a state sponsor of terrorism. (19)

It is not uncommon for a foreign sovereign to be sued in a United States court, fail to appear despite being properly served, and have a default judgment entered against them. (20) Whereas a default judgment might seem like an agreeable outcome to the plaintiff, it actually requires the federal court to inspect the claim for jurisdiction before attempting to seek the default judgment. (21) For that reason, courts always have to determine if jurisdiction is proper, and if the claim is being enforced against a foreign sovereign under the terrorism exception of the FSIA, the court must determine if that exception even applies. (22) Despite the fact that a default judgment was already awarded, the plaintiff will not have standing if the court does not have subject matter jurisdiction. (23) If a defendant would like to remove the default judgment, they have to argue to set the entry of default aside. (24) In addition to the jurisdiction requirement, under the FSIA, a default judgment will not be granted unless the plaintiff presents satisfactory evidence to support their claim or right to relief. (25)

Judgments might not be enforced in federal court despite the Full Faith and Credit Clause of the United States Constitution. (26) The Full Faith and Credit Clause will not bind a federal court to a state court's finding of jurisdiction. (27) For example, if a state court did not have subject matter jurisdiction when entering a default judgment, the federal court will not enforce the judgment. (28)

In Sullivan v. Republic of Cuba, the court affirmed the dismissal of the action because Sullivan did not sufficiently prove that Cuba's conduct fell under the FSIA terrorism exception, resulting in a lack of jurisdiction over Cuba. (29) However, the court assumed arguendo, that the Full Faith and Credit Clause applied and the district court's finding of subject matter jurisdiction under FSIA was valid. (30) Through its analysis, the court explained that the dismissal of the case was proper under the FSIA for lack of subject matter jurisdiction. (31) As a result of its reasoning, the court found that Sullivan produced insufficient evidence to establish that the FSIA terrorism exception applied. (32) The court even refused to lower the high evidentiary standard of proving an extrajudicial killing to award Sullivan damages. (33)

Despite the unfair outcome to Sullivan, the court appropriately resolved the issue at bar by applying existing case precedent. (34) When applying the two-prong test to determine if the terrorism exception to the FSIA applied, the court correctly held that Sullivan did not produce sufficient evidence to find that Cuba extrajudicially killed her father. (35) As a result, the court properly dismissed the case for lack of subject matter jurisdiction and held that it was not bound by the Full Faith and Credit Act. (36) While it is unfortunate that Sullivan did not obtain relief for her father's death, there must be a standard to hold a foreign sovereign accountable for alleged horrendous acts. (37)

The crux of this case turned on whether there was sufficient evidence of the extrajudicial killing that warranted Sullivan to be awarded the default judgment. (38) This is because the only way for a United States court to have jurisdiction over Cuba is for Sullivan to produce sufficient evidence that her father was extrajudicially killed, as required under the terrorism exception of the FSIA. (39) The court relied on precedent to determine if the evidence was sufficient and held that the evidence produced was inadequate to show Geoffrey Sullivan was killed by Cuba, because it merely speculated how he died and did not prove that Cuba actually caused his death. (40) This requirement is at an appropriate threshold because it would be unfair to sue foreign sovereigns for acts that cannot be supported by sufficient evidence. (41) The court's decision may have an effect on future cases, as any prospective plaintiff (1) must ensure that they have sufficient evidence to prove an extrajudicial killing occurred, and (2) that the accused country is a state sponsor of terrorism. (42) If Sullivan appealed this to the Supreme Court, she would have needed to locate additional evidence that supported her argument that Cuba extrajudicially killed her father during the time Cuba was a state sponsor of terrorism. (43) Thus, despite the difficulty in finding sufficient evidence to prove a foreign sovereign committed an extrajudicial killing, this decision will help future plaintiffs gauge how much evidence is sufficient to be awarded judgment under the FSIA terrorism exception. (44)

Sufficient evidence must be presented to establish that a sovereign nation extrajudicially killed a United States citizen. Without such evidence, courts will not have the proper subject matter jurisdiction to enforce judgments against sovereign states. The Sullivan court correctly found that the FSIA and its exceptions do not provide subject matter jurisdiction over Cuba. Despite the high standard of evidence required, it is justifiable to hold proper sovereigns accountable for their actions when there is adequate proof.

(1) See JENNIFER K. ELSEA, CONG. RESEARCH SERV., RL31258, SUITS AGAINST TERRORIST STATES BY VICTIMS OF TERRORISM: BACKGROUND ON STATE IMMUNITY 3-5 (2008) (explaining immunity custom afforded to sovereign states); see also Peter-Tobias Stoll, State Immunity, Oxford Pub. Int'l Law, (last updated Apr. 2011) [] (defining state immunity). "State immunity protects a State and its property from the jurisdiction of the courts of another State. It covers administrative, civil, and criminal proceedings (jurisdictional immunity), as well as enforcement measures (enforcement immunity)." Stoll, supra, note 1. See How Do You Go About Suing a Country?, NPR (Oct. 8, 2016, 8:29 AM), [https://perma .cc/94MW-MQFZ] (describing purpose of state immunity). It is preferred that disputes between two states "be resolved at the diplomatic stage as opposed to the private civil litigation stage." Id.

(2) See 28 U.S.C. [section] 1604 (2015) (defining immunity of foreign state from United States jurisdiction). "Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States...." Id. See JENNIFER K. ELSEA, CONG. RESEARCH SERV., RS22094, LAWSUITS AGAINST STATE SUPPORTERS OF TERRORISM: AN OVERVIEW, 1 (2005) (describing Foreign Sovereigns Immunity Act).

Ordinarily, foreign States, including their agencies and instrumentalities, may not be sued in U.S. courts unless they waive their sovereign immunity or an...

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