Cuban exile appeals ruling in Club Med property lawsuit.

A 95-year-old Cuban exile and her son have asked a federal appeals court to allow them to sue Club Med over disputed property in Cuba.

Elvira de la Vega Glen and her son Robert are trying to sue Club Med because they say the French company illegally built and operated a 337-room luxury hotel on what had been their family's property in Varadero.

A federal district court in Florida rejected their lawsuit in May, saying the Supreme Court has recognized the power of the Cuban government to expropriate property within its borders.

In ruling on the case, the Supreme Court invoked the "act of state" doctrine which prohibits lawsuits that are based on the official policy or actions of another country.

But the de la Vegas were undaunted. They hired a top Washington law firm, Crowell & Moring, and its lobbying affiliate, C&M Capitol Link, to represent them in the case.

Stewart Newberger, an attorney with Crowell & Moring, appealed the decision to the Atlanta-based 11th U.S. District Court of Appeals on Jun. 21.

The appeal said the lower court erred, because, when the Supreme Court issued its decision on expropriated property in Cuba, the "U.S. foreign property regarding Cuba was still in its formative stages."

"By 1996, however, Congress and the president had incorporated into a federal statute a clear statement of the rights of displaced Cuban property owners to seek redress in U.S. courts for injuries suffered at the hands of traffickers in their expropriated property," said the lawsuit.

The statute in question is a provision of the 1996 Helms-Burton Act known as Title III. Cuban exiles like de la Vega Glen were not eligible to file a claim with the Foreign Claims Settlement Commission (FCSC) for their expropriated properties in Cuba because they were not U.S. citizens at the time of the seizures in the early 1960s.

LAWYER SAYS SUIT HAS 'NO CHANCE'

Helms-Burton addressed the exiles' inability to join the group of certified claimants by opening the door to federal courts to exiles who want to sue foreign investors who've benefited from expropriated property in Cuba.

But there's a problem for the exiles like the de la Vegas who want to sue any of the foreign investors who flocked to Cuba after the collapse of the Soviet bloc in the 1990s.

The Title III provision that allows the exile lawsuits has been suspended by the president every six months since its taken effect and is likely to continue to be waived. President Bush must again decide whether to suspend the measure at the end of June.

Robert Muse, a Washington attorney who represents U.S. claimants, told CubaNews the de la Vega case has "no chance" because of the act of state doctrine. "Nationalizations have been described by the U.S. government as a quintessential official act," he said.

Things would be very different for the exile family, however, if any president stops suspending Title III. "Theirs is a classic Title III Helms-Burton action," Muse said.

Club Med built the hotel on the disputed property in Varadero in 1997 and operated it until 2003, when it was sold to Spanish hotel company Grupo Pinero. Formerly known as the Club Med Varadero, the hotel is now called Bahia Principe Varadero.

Last month, the Cuban-American Bar Association happened to devote its annual meeting to the subject of confiscated property.

Ernesto Hernandez-Cata, an economics professor at Johns Hopkins University, warned that foreign companies "will not invest one cent in Cuba" unless a post-Castro government deals with property rights issues, while Miami lawyer Luis Suarez said the issue of confiscated property presents "very conflicting emotions" for Cubans on both sides of the Florida Straits.

"If you're a Cuban who is living in a home in Cuba, you're obviously very scared," Suarez told fellow delegates. "If you're us, you're looking at it as a moral and ethical issue."