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United States quickly shuts door to Cuba in most recent jurisdictional FSIA case.

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 way to seek judgment against tortuous acts committed in other countries without actually bring suit against the entire country as a whole, however the claims may be non-existent if the plaintiffs do not remember who their individual torturers are. (53)

In Jerez v. Republic of Cuba, the District of Columbia Circuit Court considered whether or not creditors' claims against a foreign sovereign nation fell within either of the two most commonly asserted exceptions under the FSIA and whether or not a district court had jurisdiction to hear the claims. (54) By determining that a plaintiff does not have jurisdiction in the United States over a foreign nation that enjoys immunity from litigation, the Jerez court held that maintaining the issue of immunity is essential in order to continue harmonious relations with foreign sovereign states. (55) As Senior Circuit Judge Williams observed in his opinion, no matter how terrible the acts of torture against a person are, if they do not fit within an exception of the FSIA they will not be asserted against a foreign nation that enjoys immunity from litigation. In the future, if a plaintiff does not meet an exception for the FSIA to take effect, they will have to reconsider filing a suit against an entire sovereign nation, and will have to figure out another way to claim damages for torturous conditions they may have endured.

(1.) Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat. 2891 (2013) (codified as amended in scattered sections of 28 U.S.C.) (outlining jurisdictional limitations of cases allowed in United States courts against foreign entities). Under [section] 1330(a) of the Foreign Sovereign Immunities Act of 1976 (FSIA), "district courts shall have original Jurisdiction ... against a foreign state ... as to any claim for relief in personas with respect to which the foreign state is not entitled to immunity." Id. at [section] 1330(a). Under [section] 1604 of the FSIA, "...a foreign state shall be immune from the Jurisdiction of the courts of the United States ... except as provided in sections 1605 to 1607 of this chapter." Id. at [section] 1604. See also Argentine Republic v. Amanda Hess Shipping Corp., 488 U.S. 428, 434 (1989) (stating purpose of FSIA). The Supreme Court held that because the FSIA barred the action from being brought into U.S. District Court, the court lacked jurisdiction and dropped the suit. Argentine Republic, 488 U.S. at 434; see also Mark B. Feldman, The United States Foreign Sovereign Immunities Act of 1976 in Perspective: A Founders View, 35 Int'l & Comp. L.Q. 302, 302-19 (1986), available at http://www.jstor.org/stable/75923 0? seq = 1#page_scan_ tab_contents (outlining objectives of FSIA). The three main objectives of the FSIA are: "(1) to depoliticize sovereign immunity cases by transferring determinations of sovereign immunity from the State Department to the courts; (2) to codify the restric- tive theory of immunity; and (3) to establish uniform procedures for litigation against foreign States...." Feldman, supra, at 304-05.

(2.) See 28 U.S.C. [section] 1605 (noting exceptions to FSIA, which permits filing of claims in United States courts; see also Non-Commercial Tort Exception, 28 U.S.C. [section] 1605(a)(5) (1976) (providing jurisdiction for cases alleging non-commercial tortious acts committed in United States); see also Terrorist State Exception, 28 U.S.C. [section] 1605A (1996) (stating immunity unavailable for foreign states classified as terrorist states).

(3.) 775 F.3d 419 (2014).

(4.) Id. at 421-22 (articulating primary issue in case).

(5.) Id. at 425 (stating holding of case). No exception under the FSIA applied, therefore the Florida state court and the Florida District Court lacked jurisdiction. Id. With no jurisdiction, the default judgments are void. Id. See also Mwani v. bin Laden, 417 F.3d 1, 15 (D.C. Cir. 2005) (recognizing lack of exception leads to no jurisdiction for court). This case was brought to Kenyan plaintiffs as a result of the truck bombing outside the American Embassy in Nairobi, Kenya in 1998. Id. at 4. The plaintiff's case was dismissed by the district court for lack of jurisdiction, and the appeals court affirmed that decision, holding that because the acts did not occur on American soil, the FSIA exception for implicit waiver and commercial activity do not apply, and therefore there is no subject matter jurisdiction. Id. at 17.

(6.) Jerez, 775 F.3d at 421 (indicating types of torture used). Jerez alleged that there was torture such as having "electricity run through his body causing loss of bodily functions and consciousness." Id. With that loss of bodily function, Jerez claims he was forced to sit in his own feces and urine. Id.

(7.) Id. (describing continual health issues as result of forced injections of Hepatitis C); see also Jerez v. Republic of Cuba, 777 F. Supp. 2d 6, 11 (2011) (stating acts of torture that physically and psychologically harmed Jerez).

(8.) Jerez, 775 F.3d at 421 (explaining defendants purposefully injected him with Hepatitis C). Jerez also claimed that along with the Hepatitis C being injected within him, he was placed in conditions that furthered the effects of Hepatitis C, which led to cirrhosis of the liver. Id. The torturous conditions in Fidel Castro's Cuba in the 1960s and 1970s were so deplorable that a book entitled Against All Hope was published, and depicted the same type of treatment and torture that Jerez himself endured. Id.

(9.) Id. (stating specific district where suit filed). Jerez specifically brought his case in the Eleventh Judicial Circuit in and for Miami-Dade County. Id.

(10.) Id. (indicating result procured by Jerez). Although the court found for default judgment for the Torture Victim Protection Act (TVPA), Jerez alluded to a FSIA claim, and the court found jurisdiction under the Alien Tort Claim Act. Jerez, 775 F.3d at 421.

(11.) Id. (granting default judgment and damages to Jerez). The court granted Full Faith and Credit to the Florida state court and granted judgment. Id. With this grant, the Florida District Court did not take into consideration the jurisdictional issue at hand. Id.

(12.) Id. (showing registration of default judgment in District of Columbia District Court). Along with the default judgment, Jerez also filed writs of attachment on patents and trademarks held by the Republic of Cuba. Id. Camara de Comercio is the manager of a trademark on Cuban cigars, which is listed as one of the appellees of this action. Jerez, 775 F.3d at 421.

(13.) See id. at 421-22 (noting irrelevance of writs of attachment to case, leading to their dismissal). The court also indicated that the writs are irrelevant to this case, which allowed them to dismiss the irrelevant writs of attachment. Id. at 421.

(14.) See id. at 422 (affirming district court decision to overrule Jerez's objection to magistrate orders); see also Jerez v. Republic of Cuba, 964 F. Supp. 2d 52, 54 (D.D.C. 2013) (outlining Jerez's objection to magistrate judge's order). The United States District Court held that due to the Cuban Assets Control Regulations, the writ of attachment was impermissible. Jerez, 964 F. Supp. 2d at 54-55. Jerez then filed an objection indicating that the magistrate had erred in dismissing the writ of attachment. Id. at 55. The district court held that there was no error on the part of the magistrate in disallowing the writ of attachment. Id. at 61.

(15.) See The Schooner Exchange v. McFadden, 11 U.S. 116, 126 (1812) (concluding citizens not permitted to sue foreign nations). In this case, the private citizen attempted to sue France for a warship that had been ported in Philadelphia. Id. at 117. The Supreme Court held that a plaintiff could not sue a foreign sovereign for a warship that had taken refuge in the Philadelphia port. Id. at 117, 147. See also Jennifer K. Elsea, Cong. Research Serv., R41379, Samantar v. Yousef: The Foreign Sovereign Immunities Act (FSIA) and Foreign Officials 1-2 (2013), available at http://fas. org/sgp/crs/misc/R41379.pdf (outlining history of sovereign immunity prior to FSIA enactment).

(16.) See 28 U.S.C. [section][section] 1330, 1602-11 (1976) (citing FSIA). The FSIA defines "the jurisdiction of the United States courts in suits against foreign states, the circumstances in which foreign states are immune from suit and in which execution may not be levied on their property, and for other purposes." Id. at preamble. See also Robert B. von Mehren, The Foreign Sovereign Immunities Act of 1796, 17 Colum. J. Transnat'l L. 33, 33 (1978) available at http://heinonline.org/HOL/LandingPage? handle=hein.journals/cjtl17&div=6&id=&page= (setting forth reasoning behind FSIA); supra note 1 (defining jurisdictional portion of the FSIA). Upon approving the FSIA, President Ford stated:
   This statute will also make it easier for our citizens and foreign
   governments to turn to the courts to resolve ordinary legal
   disputes. In this respect, the [FSIA] carries forward a modern and
   enlightened trend in international law. And it makes this
   development in the law available to all American citizens.


Von Mehren, supra.

(17.) See Schooner Exchange, 11 U.S. at 144 (describing initial processes for which sovereign immunity first conceived); see also Rich v. Naviera Vacuba, S.A., 295 F.2d 24, 26 (4th Cir. 1961) (setting out legislation eventually bringing FSIA to reality). In Naviera Vacuba, suits were brought against the Republic of Cuba when a ship carrying 5,000 pounds of sugar intended for Russia, diverted its course, holding its crew hostage and taking refuge in Norfolk, VA. Naviera Vacuba, 295 F.2d at 25. The crew intended to seek asylum in the United States from Cuba. Id. The Republic of Cuba argued that they were a sovereign nation immune from jurisdiction. Id. The libellants claimed that their case should be heard prior to sovereign immunity being granted so that they may decide whether or not the ship was owned by the foreign entity in question, in this case, that was Cuba. Id. As a result, the 4th Circuit held that the decision to grant immunity to Cuba made by the Secretary of State fell within the separation of powers doctrine and the judiciary branch deferred to Congressional decision-making, and upheld their decision. Id. at 26. See generally David P. Stewart, Fed. Judicial Ctr. Int'l Litig. Guide, The Foreign Sovereign Immunities Act: A Guide for Judges (2013), available at http://www.fjc.gov/public/pdf.nsf/lookup/ fsiaguide2013.pdf/$file/fsiaguide2013.pdf (outlining entire FSIA for judicial guidance). Essentially, the FSIA created a statutory basis for adjudication of claims brought against foreign sovereignties. Stewart, supra, at 6.

(18.) See Jean-Marie Simon, Alien Tort Claims Act: Justice or Show Trials?, 11 B.U. Int'l. L.J. 1, 58 (1993) (discussing differences between Alien Tort Claim Act and FSIA). Whether or not the FSIA would apply, is only important where "plaintiff's argue that individual defendants could not raise FSIA immunity." Id. at 59. See also Ju" rgen Bro" hmer, State Immunity and the Violation of Human Rights 50 (1996), available at https://books.google.com/books?id=AhaMjFEzZQ8C&pg=PA49 &lpg=PA49&dq=ATCA+vs.+FSIA&source=bl&ots=uW9nieXtqI&sig=mNwnyrEhJ_ Gr7C9RuVmfoA-E-BE&hl=en&sa=X&ei=Ao0BVd2jB8PEggSol40gCQ&ved=0CD gQ6AEwAw#v=onepage&q=ATCA%20vs.%20FSIA&f=false (recognizing potential for successful ATCA claims against an accused individuals, not sovereign states).

(19.) See 28 U.S.C. [section] 1605(a)(5) (1996) (codifying non-commercial tort exception to FSIA). The non-commercial tort exception states:
   A foreign state shall not be immune from the jurisdiction of courts
   of the United States or of the States in any case not otherwise
   encompassed ... in which money damages are sought against a foreign
   state for personal injury or death, or damage to or loss of
   property, occurring in the United States and caused by the tortious
   act or omission of that foreign state ...


Id.

(20.) See Doe v. Bin Laden, 663 F.3d 64, 68-69 (2d Cir. 2011) (citing noncommercial tort exception applicable to victim who died as result of September 11, 2001 attacks). The estate of a woman who died in the attacks on the World Trade Center brought suit against Afghanistan for assault and battery, false imprisonment, intentional infliction of Emotional Distress, conspiracy, wrongful death, and violation of the Anti-Terrorism Act. Id. at 65. Under the non-commercial tort exception, the district court had to determine whether, or not, this claim fit under this exception. Id. Under the requirements, it was apparent that this fell within the exception. Id. Afghanistan however wanted a narrower interpretation of the exception to prove that this did not fall within the exception. Id. Afghanistan claimed that there were no cases that were "covered [under] the terrorism exception that fall outside the noncommercial tort exception." Id. at 67. The court held that by narrowing the interpretation of the exception, Afghanistan would essentially be repudiating the exception and what it was designed for. Doe v. Bin Laden, 663 F.3d at 69-71. See also Mohammadi v. Islamic Republic of Iran, 947 F. Supp. 2d 48, 81 n.4 (2013) (citing potential circumstance where possibility exists of using non-commercial tort exception to obtain jurisdiction). The plaintiffs in Mohammadi tried to gain jurisdiction under the Alien Tort Statute, however, they were unsuccessful. Id. at 84. According to the footnote, however, had they used the non-commercial tort exception, this case would have fallen under one of the restrictions, leading to a grant of subject matter jurisdiction). Id. at 84. See also Judi L. Abbott, The Noncommercial Torts Exception to The Foreign Sovereign Immunities Act, 9 Fordham Int'l L.J. 134, 134 (1985) (discussing noncommercial tort exception to FSIA); Simon, supra note 18, at 59 (setting forth requirements and restrictions on non-commercial tort exception).

(21.) See Rishikof v. Mortada, 2014 WL 4802455, at *6 (D.C. Cir. Sept. 29, 2014) (citing non-commercial tort exception not applicable against Swiss driver for death caused in accident). The defendant, in this case, was driving a vehicle owned by the Defendant Corporation, while the plaintiff, who was a Washington D.C. resident, was struck and killed while in a crosswalk by defendant driver. Id. at *1. The plaintiff attempted to have this case heard in the United States district court citing the noncommercial tort exception of the FSIA. Id. at *4. The court first had to determine whether the defendant driver was acting within the scope of his employment, to which they determined he was. Id. When determining if the non-commercial tort exception applied, the court had to determine whether the defendant was within his scope of employment and that the claim is not based on a discretionary function. Id. Since it was determined the defendant was within the scope of his employment, the non-commercial tort exception did not apply and the district court did not have jurisdiction over the proceeding. Id. at *6. See also A Star Group, Inc. v. Manitoba Hydro, 2014 WL 2933155, at *9 (S.D.N.Y. June 30, 2014) (denying existence of any tort to claim FSIA exceptions). The plaintiff alleged breach of contract, unfair completion etc., in an action against an overseeing board, PUB, of Manitoba Public Utilities Board. Id. at *1. PUB moved to dismiss because of the FSIA and the non-commercial tort exception to the FSIA. Id. at *4. Since "the non-commercial tort exception pertains only to 'personal injury or death, or damage to or loss of property, occurring in the United States,' ... A Star makes no attempt to identify any tort that PUB committed." Id. at *5. Since no tort was established, the exception does not pertain. Id. Cf. O'Bryan v. Holy See, 556 F.3d 361, 385-87 (6th Cir. 2009) (demonstrating usage of non-commercial tort exception to FSIA). This case dealt with alleged sexual abuse by Roman Catholic priests. Id. at 369. The church denied the allegations and attempted to have the case dismissed due to lack of subject matter jurisdiction. Id. The defendant, Holy See, was both a foreign state and an unincorporated association with the Roman Catholic Church. Id. The court went through the restrictions of the exception to ensure the plaintiff met all the criteria. Id. at 380-84. In applying the exception to this case the court noted that the plaintiff brought claims not only against the priests and archbishops, but the Holy See Church itself. Id. at 385. The court held that because O'Bryan brought claims against so many parties, the defendants acted within the scope of their employment, and the tortious actions occurred in the United States, which allowed for jurisdiction to be allowed. Holy See, 556 F.3d at 385. Under other exceptions, however, the court concurred with the district courts partial dismissal motion. Id. at 389.

(22.) 729 F.2d 835 (D.C. Cir. 1984).

(23.) See Persinger, 729 F.2d at 842 (promulgating usage of non-commercial tort exception to FSIA). "A former hostage and his parents" brought suit against Iran for injuries that were sustained during the capture and detention of American hostages that took place in 1979. Id at 836-37. The appellants sought monetary damages that the appellant endured during his time of detention. Id. at 842. Iran declared that they were subject to sovereign immunity based on the FSIA. Id. at 837. The court analyzed the non-commercial tort exception to the FSIA to conclude that "[s]uch injuries are said to be actionable because [the non-commercial tort exception] requires only that the injury be suffered in the United States but does not require that the tortious act or omission occur here." Id. at 842. The court held that the non-commercial tort exception does not apply here, because the interpretation of the statute provides exclusively that the activities that occur outside the United States, immunity is provided to the foreign entity. Id. at 843.

(24.) See Persinger, 729 F.2d at 837 (stating issue at dispute). The court stated that this case turned on whether a U.S. embassy in a foreign country was considered U. S. territory, for the purpose of establishing the non-commercial tort exception to the FSIA. Id. at 839. Also, whether or not an American embassy fit within the definition of "United States" was at issue. Id.

(25.) See id. at 840 (demonstrating incompatibility of term "embassy" with definition of "United States"). The court indicated that within the confines and interpretations of the FSIA statutes, the non-commercial tort exception of the FSIA does not apply, unless the action happened within the "forum" state. Id. "A state loses its sovereign immunity for tortious acts only where they occur in the territory of the forum state." Id. (emphasis added).

(26.) See 28 U.S.C. [section] 1605A (2008) (stating terrorism exception to FSIA). In general, the statute states:
   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 money
   damages are sought against a foreign state for personal injury or
   death that was caused by an act of torture, extrajudicial killing
   ... or the provision of material support or resources for such an
   act if such act or provision of material support or resources is
   engaged by an official ... of such foreign state while acting
   within the scope of his or her ... employment or agency.


Id.

(27.) See e.g., Cicippio v. Iran, 18 F. Supp. 2d 62, 67 (D.D.C. 1998) (demonstrating application of terrorist state exception to FSIA). Hizballah, the terrorist organization that Iran controls, captured three Americans. Id. at 64. The court held that the ten-year statute of limitations did not apply, and that the terrorism exception to the FSIA applied, awarding the plaintiff's damages. Id. at 69-70. See also Keith Sealing, "State Sponsors of Terrorism" Is a Question, Not an Answer: The Terrorism Amendment to the FSIA Makes Less Sense Now Than It Did Before 9/11, 38 Tex. Int'l L.J. 119, 12533 (2003) (listing fourteen seminal cases after passage of terrorism exception to FSIA). These cases involved various countries such as Iran, Libya, Cuba and others, in their examinations of the terrorism exception to the FSIA. Id. at 125.

(28.) 996 F. Supp. 1239 (S.D. Fla. 1997).

(29.) See Alejandre, 996 F. Supp. at 1242 (indicating terrorism exception applied to FSIA barred case). In this case, the Government of Cuba shot down an airplane that was tasked with providing humanitarian aid to rafters between Cuba and Florida. Id. The Cuban aircraft that shot down the civilian aircraft did so without provocation and presumably with the consent of the Cuban Government. Id. The administrators of the estates of the four civilians killed by Cuban forces brought suit in the United States District Court for the Southern District of Florida, which held that Cuba was not immune from foreign sovereignty because of the terrorism exception in the FSIA. Id. at 1248-49. As a result, Cuba was liable for compensatory and punitive damages owed to the families of the fallen civilians. Id. The court held that Alejandre met all the exceptions, and jurisdiction was allowable in the United States. Id. at 1248. The court stated that the actions of Cuba were precisely why the terrorism exception was created, stripping Cuba of immunity and judgment in the United States. Alejandre, 996 F. Supp. at 1248 (presenting Cuba as model example of reason for terrorism exception).

(30.) See id. at 1243-46 (stating facts of case).

(31.) See id. at 1248 (outlining factors of terrorism exception in order to apply to FSIA). In order for the terrorism exception to apply, there are certain requirements needed. Id. Those requirements include: "(1) the U.S. must have designated the foreign state as a state sponsor of terrorism ...; (2) the act must have occurred outside the foreign state; and (3) the ... victims must have been U.S. nationals at the time the acts occurred." Id. The plaintiff met the first requirment based on the court's reasoning of an "extrajudicial killing" that occurred over foreign international waters. Id. Alejandre satisfied the second requirement because Cuba was designated as a state sponsor of terrorism in 1979 as part of the Export Administration Act. Alejandre, 996 F. Supp. at 1248 (explaining how case met second requirement). Plaintiff also fulfilled the third requirement because the pilots, who were shot down, were either born in America, or U.S. naturalized citizens. Id. See also Michael D. Goldhaber, Billions in U.S. Claims Against Cuba Still Outstanding, Am. Law., Feb. 18, 2015, available at http://www.americanlawvercom/id=1202715673441/Billions-in-US-Claims-AgainstCuba-Still-Outstanding (indicating U.S.-Cuba relations will absolve not terror claims against Cuba). This article mainly talks about funds, but there is also the remark that just because there may be new diplomatic relations, does not mean that terror claims against Cuba will cease, now that the door to Cuba is open. Id.

(32.) See Alejandre, 996 F. Supp. at 1248 (suggesting reasons for placing Cuba within terrorism exception); see also Lubian v. Republic of Cuba, 440 Fed. Appx. 866, 868-69 (11th Cir. 2011) (demonstrating terrorism exception and how Cuba failed to meet requirements to qualify); Saludes v. Republica de Cuba, 577 F. Supp. 2d 1243, 1255 (S.D. Fla. 2008) (indicating terrorism exception applicable to acts committed in Cuba). The plaintiff brought suit against Cuba for torture during imprisonment in Cuba. Saludes, 577 F. Supp. 2d at 1245 (describing plaintiff's allegations). Based on the requirements for the terrorism exception to apply, the court held that Cuba was in compliance with the conditions, and allowed the terrorist exception to apply to the FSIA. Id. at 1251-53. See generally Peter Baker, U.S. to Restore Full Relations With Cuba, Erasing a Last Trace of Cold War Hostility, N. Y. Times, Dec. 17, 2014, at A1, available at http://www.nytimes.com/2014/12/18/world/americas/us-cuba-relations .html?_r=0 (insinuating diplomatic relationship with Cuba restored). See also Obama's Historic US-Cuba Deal: What You Need to Know, Vox, (last visited Mar. 4, 2015), http://www.vox.com/2014/12/17/7408661/cuba-deal-embargo-us-obama-relations (detailing new diplomatic standards between U.S. and Cuba). With the release of Alan Goss, who was detained in a Cuban prison for five years, the humanitarian and relationship implications were immense. Id.

(33.) See Jerez, 775 F.3d at 423-24 (articulating primary issue of case).

(34.) See id. at 422 (setting forth requirements for default judgment against sovereign state). The plaintiff cited numerous precedent cases that stated the court had subject matter jurisdiction, "as long as the court did not 'plainly usurp jurisdiction.' " Id. However, the D.C. Circuit court disagreed with those assertions because the principles stated in precedent cases that the plaintiff cited did not apply to default judgments. Id. Those assertions only applied to cases where the defendant had an opportunity to litigate whether or not there was subject matter jurisdiction against them. Id. The court went on to say that defendants were free to assert jurisdictional arguments later on, in instances where the defendant has never appeared. Id.

(35.) See Jerez, 775 F.3d at 422-23 (outlining FSIA exception to default judgments). The court cited the FSIA statute exception that dealt with default judgments and when the FSIA exception applies. Id. at 423. The statute implied that unless a claimant can provide substantial evidence to their claim of relief, the court shall not enter a default judgment. Id. According to the statutory interpretation by the court, that statute provided sovereign nations protections against default judgments that the federal government assured. Id. "The rationale for such extra protection of sovereigns was that 'the government is sometimes slow to respond and that the public ... should be protected from claims that are unfounded but would be granted solely because the government failed to make a timely response.' " Jerez, 775 F.3d at 423. The court stated that "Florida law ... calls for a de novo examination of ... jurisdiction, [and] 'A judgment entered by a court which lacks subject matter jurisdiction is void and subject to collateral attack ... at any time.' " Id.

(36.) See Jerez, 775 F.3d at 423-24 (assessing subject matter jurisdiction of Florida court). Based on the meaning and definition of the FSIA, the court uses the language to determine if a lower court allows for subject matter jurisdiction, only if no exception applies. Id.

(37.) See id. at 424 (reasoning why non-commercial tort exception does not apply). According to the language of the statute, "both the tort and the injury must occur in the United States." Id. (citing Persinger, 729 F.2d at 842). Based on the fact that U. S. tort law governs torts occurring in the United States, the primary purpose for enacting the non-commercial tort exception "was to eliminate a foreign state's immunity for" trivial suits in the United States. Id. The court determined that although the plaintiff's alleged tort was the intentional injection of the Hepatitis C virus, that tort occurred in Cuba, not the United States. Id. The plaintiff also alleged that there was a failure to warn him of what the virus was that was injected into his body. Jerez, 775 F.3d at 424 (considering Jerez's allegations). Jerez alleged that because the virus continued to replicate throughout his body while living in the United States, that the continued replication should be treated as an "independent tort." Id. at 424. However, the court deemed this replication as a furtherance of the original "injury," a consequence of what happened in Cuba. Id. The court determined that "the law is clear that 'the entire tort'-including not only the injury but also the act precipitating that injury-must occur in the United States." Id.

(38.) See id. at 424-25 (indicating terrorism exception misplaced). According to the court, Jerez asserted the terrorism exception based on the interpretation that there would be an exception to sovereign immunity since personal injury or death was caused by an act of torture, as required by the statute. Id.

(39.) See Jerez, 775 F.3d at 424-25 (applying factors of terrorism exception to present case). The court cited the terrorism statute and indicated that in order for the terrorism exception to apply, the state must be a designated sponsor of terrorism, and that the claimant must be a national of the United States. Id. Since "Cuba was not designated as a state sponsor of terrorism until 1982," the injuries that Jerez suffered in 1970 and 1971 would not have occurred at the time or after Cuba was designated a state sponsor of terrorism. Id. at 425. Jerez tried to re-invoke the "replication" theory of his Hepatitis C infection, and stated that the Hepatitis C injection was an act of terrorism that continued to occur in his body. Id. The court reasoned that even though those occurrences of disease continued to happen, the initial act of injecting Jerez with those viruses occurred prior to both Cuba being declared a terrorist state, and Jerez becoming a U.S. naturalized citizen. Id.

(40.) See id. at 425 (citing primary holding of case). Since there was no subject matter jurisdiction for Florida, the D.C. Circuit dismissed the judgments in favor of Jerez, and the court did not need to address the appellees' other complaints. Jerez, 775 F.3d at 425 (dismissing lower courts' judgments).

(41.) See id. (citing primary holding of case).

(42.) See Goldhaber, supra note 31 (setting forth future for U.S.-Cuba relations); see also Stewart, supra note 17, at 11 (discussing FSIA and sensitive foreign relations issues that arise); Baker, supra note 32 (examining future relations between United States and Cuba based on Presidential action allowing relations to open). When dealing with foreign relations, raising actions against foreign sovereigns can raise sensitive foreign relations matters, which is why the application of the FSIA is extremely significant. Stewart, supra, at 11.

(43.) See Feldman, supra note 1, at 303-05 (describing history and purpose of FSIA). Feldman described the need for judicial intervention in foreign sovereign immunity cases due to the continued and resonating effect of depleting foreign relations with other countries because of an absolute immunity standard prior to the passage of the FSIA. Id. at 304-05. See also supra notes 20-21 (examining various circuit court cases in support of FSIA and application of exceptions within traditional law). The various cases that the D.C. Circuit Court had to rely on all applied the FSIA and the exceptions to the various sets of facts. See supra notes 20-21; see also Feldman, supra, at 305-18 (discussing numerous cases which applied and ruled on FSIA and exceptions). Claimants felt that because of the continued absolute immunity, the United States' continued recognition of absolute immunity excused foreign nations from judgment, just to maintain foreign relations. Feldman, supra, at 304.

(44.) See supra note 8 and accompanying text (describing intentional acts of viral infections to Jerez).

(45.) See supra notes 37-39 (discussing interpretations of FSIA and its relevant exceptions).

(46.) See Jerez, 775 F.3d at 424 (maintaining inappropriateness of non-commercial tort exception). According to the language of the statute, "both the tort and the injury must occur in the United States." Id. (citing Persinger, 729 F.2d at 842).

(47.) See supra note 8 and accompanying text (describing intentional acts of viral infections to Jerez); see also supra note 37 and accompanying text (discussing tortious claim of Hepatitis C virus replication). Jerez felt that since the virus was replicating multiple times, while he resided in the United States, that the replication should be treated as an independent tort, and subject to an individual suit. See Jerez, 775 F.3d at 424. The causal link was not established due to the court deeming the replication a consequence to the original injury, which occurred in Cuba. Id. The language clearly identifies that the actual injury must occur in the United States in order to trigger the non-commercial tort exception. Id.

(48.) See Jerez, 775 F.3d at 424-25 (citing terrorism exception not applicable). According to the court, Jerez asserted the terrorism exception based on the interpretation that there would be an exception to sovereign immunity due to "personal injury or death that was caused by an act of torture." Id. at 424. The court cited the terrorism statute and indicated that in order for the terrorism exception to apply, the state must be a designated sponsor of terrorism, and that the claimant must be a national of the United States. Id. at 424-25. Since Cuba was not designated as a state sponsor of terrorism until 1982, the injuries suffered by Jerez in 1970 and 1971 would not have occurred at the time or after Cuba was designated a state sponsor of terrorism. Id. at 425. Jerez tried to re-invoke the "replication" theory of his Hepatitis C infection, and stated that the injection was an act of terrorism that continued to occur in his body. Id. The court reasoned that even though those occurrences of disease continued to happen, the initial act of injecting Jerez with those viruses occurred prior to Cuba being declared a terrorist state, as well as Jerez becoming a U.S. naturalized citizen. Id.

(49.) See Alejandre, 996 F. Supp. at 1248 (outlining factors of terrorism exception in order to apply to FSIA). According to Alejandre, one of the factors of the terrorism exception is "the claimants and victims ... must have been U.S. nationals at the time the acts occurred." Id. See also Jerez, 775 F.3d at 425 (outlining requirement of citizenship for Jerez to prevail). In this case, since Jerez was not a U.S. citizen when the torture commenced, the terrorism would not have applied. Id.

(50.) See Simon, supra note 18, at 8 (discussing Alien Tort Claim Act). The ATCA states "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or treaty of the United States." Id.

(51.) See supra notes 29-31 (outlining FSIA and ATCA reasoning behind usage). In comparing Jerez to the Alejandre court, the purpose of the ATCA against foreign states is to establish jurisdiction. See Jerez, 777 F. Supp. 2d at 18. The ATCA does not provide a remedy for the immunity that the foreign sovereign state garners from the restrictions of the FSIA. Id. Also, the indication as to whether Jerez could have even brought these claims under the ATCA because his status as an "alien" or a "citizen" was in question. Id. at 21. According to the court, even if he were deemed to be a U.S. national as opposed to an alien, which would have only satisfied one of the exceptions to the FSIA, and the outcome would not have changed as FSIA restrictions still apply regardless of ATCA application. Id. at 22. Before an ATCA claim can be brought, the FSIA is applied. Id. at 18. Since the FSIA exceptions took precedent, the torture claims under the ATCA were not applicable. Id.

(52.) See Simon, supra note 18, at 58-59 (citing Estate of Ferdinand E. Marcos Human Rights Litigation v. Ferdinand E. Marcos, 978 F.2d 493, 497 (9th Cir. 1992)) (dictating FSIA precedent over Alien Tort Statute). The FSIA "trumps" the Alien Tort claims when an individual is acting in the official duties when sued. Id. at 61. FSIA can shield an official working as an employee under official capacity of the foreign sovereign, which would allow for immunity. Id. at 59.

(53.) See Bro" hmer, supra note 18, at 50 (stating individuals can be named to elude FSIA). See also Simon, supra note 18, at 58-59 (suggesting individuals can be sued under Alien Tort Statute, but not FSIA). "Until recently, the FSIA could not be invoked against individuals since the FSIA only applied to a 'separate, legal person, corporate or otherwise,...." Id. at 58. The Ninth Circuit contradicted that ideology however, in that persons in an "official capacity as employees of a foreign sovereign" could be shielded under the FSIA. Id. at 59. See also Goldhaber, supra note 31 (discussing previous presidential actions to restore peace with foreign nations). President Bush, in an accord with Libya, settled claims and garnered USD 3.66 Billion to U.S. victims of Libyan's terrorist regime. Id.

(54.) See supra note 4 and accompanying text (reiterating issue of case).

(55.) See Stewart, supra note 17, at 19 n.44 (discussing FSIA's purpose for promoting harmonious international relations).
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Title Annotation:Foreign Sovereign Immunities Act of 1976
Author:Darin, Joseph
Publication:Suffolk Transnational Law Review
Article Type:Case note
Date:Jun 22, 2015
Words:7695
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