Academic journal article Suffolk Transnational Law Review

United States Quickly Shuts Door to Cuba in Most Recent Jurisdictional FSIA Case

Academic journal article Suffolk Transnational Law Review

United States Quickly Shuts Door to Cuba in Most Recent Jurisdictional FSIA Case

Article excerpt

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. …

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