16-1227-cv
Vera v. The Republic
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
______________
August Term 2016
(Argued: April 18, 2017 Decided: August 14, 2017)
Docket No. 16‐1227
ALDO VERA, JR., as Personal representative of the Estate of
Aldo Vera, Sr.,
Plaintiff‐Appellee,
v.
THE REPUBLIC OF CUBA,
Defendant,
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.,
Appellant.
______________
Before: POOLER, WESLEY, and CARNEY, Circuit Judges.
Appeal from an April 19, 2016 order and judgment of
civil contempt entered in the United States District Court
for the Southern District of New York (Hellerstein, J.). The
District Court held appellant Banco Bilbao Vizcaya
Argentaria, S.A. (“BBVA”), a foreign bank, in contempt for
refusing to comply with a subpoena requesting information
about Cuban assets located inside and outside the United
States. Plaintiff‐Appellee Aldo Vera, Jr. served the
subpoena on BBVA’s New York branch in an effort to
enforce a federal default judgment against the Republic of
Cuba. BBVA moved to quash the subpoena, arguing the
District Court did not have subject matter jurisdiction over
the action in which it was served or personal jurisdiction
over the foreign bank.
We REVERSE the District Court’s order and
REMAND with instructions to grant BBVA’s motion to
quash. We conclude the District Court lacked subject matter
jurisdiction to enter judgment against Cuba under the
Foreign Sovereign Immunities Act of 1976. The information
subpoena served on BBVA to enforce that judgment is
therefore void.
______________
ROBERT A. SWIFT, Kohn, Swift & Graf, P.C.,
Philadelphia, PA (Jeffrey E. Glen, Anderson Kill
P.C., New York, NY, on the brief), for Plaintiff‐
Appellee Aldo Vera, Jr.
2
KENNETH A. CARUSO (Christopher D. Volpe, Matthew
L. Nicholson, on the brief), White & Case LLP, New
York, NY, for Appellant Banco Bilbao Vizcaya
Argentaria, S.A.
John J. Clarke, Jr., Richard F. Hans, Kevin Walsh,
DLA Piper LLP, New York, NY, for Amici Curiae
Institute of International Bankers and European
Banking Federation in Support of Appellant.
James L. Kerr, Margaret E. Tahyar, Michael S. Flynn,
Alicia Llosa Chang, Caroline Stern, Davis Polk &
Wardwell LLP, New York, NY, for Amicus Curiae
Banking Law Committee of the New York City Bar
Association in Support of Appellant.
______________
WESLEY, Circuit Judge:
At the heart of this appeal is an action by Plaintiff‐
Appellee Aldo Vera, Jr. (“Vera”) against the Republic of
Cuba for the extrajudicial killing of his father in 1976. In
2008, Vera obtained a default judgment against Cuba in
Florida state court, relying on the “terrorism exception” to
sovereign immunity, 28 U.S.C. § 1605A(a)(1). Vera then
secured a default judgment against Cuba in the United
States District Court for the Southern District of New York
(Hellerstein, J.), after that court granted full faith and credit
to the Florida judgment.
This appeal arises from Vera’s efforts to enforce the
federal default judgment by serving information subpoenas
on the New York branches of various foreign banks. One
3
bank, Appellant Banco Bilbao Vizcaya Argentaria, S.A.
(“BBVA”), refused to comply with the subpoena’s request
for information regarding Cuban assets located outside the
United States. BBVA moved to quash the subpoena,
contending that Vera’s federal default judgment against
Cuba was void for lack of subject matter jurisdiction under
the Foreign Sovereign Immunities Act of 1976 (the “FSIA”),
as amended, 28 U.S.C. §§ 1602 et seq., and that the District
Court lacked the personal jurisdiction over BBVA needed to
compel worldwide discovery. The District Court rejected
BBVA’s jurisdictional challenges and ordered it to provide
full and complete answers to Vera’s request for
information, holding the bank in contempt when it refused
to comply.
We reverse. The District Court lacked subject matter
jurisdiction over Vera’s action against Cuba because Cuba
was not designated a state sponsor of terrorism at the time
Vera’s father was killed, and Vera failed to establish that
Cuba was later designated a state sponsor of terrorism as a
result of his father’s death. Accordingly, the FSIA’s
terrorism exception to sovereign immunity—the only
potential basis for subject matter jurisdiction in this case—
does not apply. Cuba was immune from Vera’s action, the
District Court lacked subject matter jurisdiction to enter
judgment against it, and the information subpoena to
enforce that judgment is void.
I
Vera’s father, Aldo Vera, Sr., was killed in San Juan,
Puerto Rico on October 25, 1976. In 2001, Vera brought a
4
civil action against Cuba in Florida state court on behalf of
his father’s estate. Vera alleged that his father—the former
police chief in Havana—fled Cuba in the 1960s and
engaged in counterrevolutionary activities in Puerto Rico
and Florida. He further alleged that agents acting on orders
of the Cuban government executed Vera’s father in a street
in San Juan, as he was leaving a regularly scheduled
meeting of a prominent anti‐communist group.
Cuba did not appear in the Florida action. In 2008,
after holding a bench trial on the merits, the Florida court
entered a default judgment in Vera’s favor for
approximately $95 million. Although foreign states are
generally immune from the jurisdiction of the courts of the
United States under the FSIA, the Florida court held that
Cuba was subject to suit under a statutory exception to
immunity then found in 28 U.S.C. § 1605(a)(7).1 That
exception, often referred to as the “terrorism exception,”
explicitly authorizes suits against foreign states that
sponsor certain acts of terrorism, such as extrajudicial
killings and torture. See 28 U.S.C. § 1605A(a)(1). To invoke
the exception, the foreign state must have been “designated
1 Congress repealed § 1605(a)(7) in 2008 and replaced it with
§ 1605A. See National Defense Authorization Act for Fiscal Year
2008, Pub. L. No. 110‐181, § 1083, 122 Stat. 3, 338–44 (2008). For
purposes of this appeal, it is immaterial which statutory version
supported Vera’s underlying judgments. The language relevant
to our analysis is essentially identical in each. We cite § 1605A
because that is the version that was in effect at the time Vera
commenced his federal action.
5
as a state sponsor of terrorism at the time the act . . .
occurred” or later, “as a result of such act.” Id.
§ 1605A(a)(2)(A)(i)(I).
The Florida court held that the FSIA’s terrorism
exception applied to Vera’s suit. Specifically, it found that
Cuba ordered the extrajudicial killing of Vera’s father in
1976 in retaliation for his participation in the anti‐
communist movement and that Cuba “was designated to be
a state sponsor of terrorism in 1982 . . . and remains so
designated.” J.A. 273. In the Florida court’s view, those facts
rendered Cuba subject to suit in any court in the United
States and established Vera’s right to relief.
Armed with the state court judgment, Vera filed a
complaint against Cuba in the United States District Court
for the Southern District of New York, seeking “recognition
and entry” of the Florida judgment pursuant to the Full
Faith and Credit Act, 28 U.S.C. § 1738. J.A. 282. Vera alleged
that he was entitled to a federal judgment against Cuba
based on the strength of the Florida judgment, which,
according to Vera, rested on all of the necessary findings of
fact. In particular, Vera alleged the Florida court found that
agents of Cuba shot and killed his father in San Juan and
that Cuba “was designated a ‘State Sponsor of
Terrorism’ . . . and remains so designated.” J.A. 283.
Cuba failed to appear in the federal action. On
August 17, 2012, the District Court entered a default
judgment against it for approximately $45 million,
6
including interest.2 The District Court stated it had subject
matter jurisdiction over Vera’s claim “pursuant to 28 U.S.C.
§[§] 1331 and 1602 et seq.,” and that the Florida judgment
was entitled to full faith and credit. J.A. 286.
With a federal default judgment in hand, Vera sought
to collect Cuban assets wherever held. He commenced an
execution and attachment proceeding in the District Court
and served information subpoenas on the New York
branches of various foreign banks, seeking information
regarding Cuba’s assets both inside and outside the United
States. See Fed. R. Civ. P. 69(a)(2); N.Y. C.P.L.R. 5224(a).
BBVA, one of the garnishee banks, supplied information
pertaining to Cuban assets located at its New York branch,
but refused to produce information regarding Cuban assets
found outside New York.
Vera moved to compel BBVA’s compliance with the
request for information, and BBVA cross‐moved to quash
the subpoena. According to BBVA, the subpoena was void
ab initio because the District Court lacked subject matter
jurisdiction over the action in which it was served. The
District Court lacked jurisdiction over Vera’s action against
Cuba, BBVA argued, because the terrorism exception to
sovereign immunity in the FSIA—the only possible basis
for subject matter jurisdiction over Cuba—did not apply.
2 The District Court excluded from its judgment the portion of
the Florida judgment that awarded Vera punitive damages,
because the FSIA prohibits an award of punitive damages
against a foreign state. See 28 U.S.C. § 1606.
7
BBVA also argued that the District Court lacked personal
jurisdiction over it and therefore could not compel BBVA to
produce information regarding Cuban assets located
outside the United States.
While Vera’s motion to compel and BBVA’s cross‐
motion to quash were pending, U.S. Marshals levied writs
of execution against Cuban assets held at the New York
branches of various banks.3 Vera filed an omnibus petition
for a turnover of the assets, naming BBVA and other foreign
banks as third‐party defendants in that proceeding.4 See 28
U.S.C. § 1610(g)(1) (“[T]he property of a foreign state
against which a judgment is entered under [§ 1605A or
§ 1605(a)(7)] . . . is subject to attachment in aid of execution,
and execution, upon that judgment as provided in this
section . . . .”); N.Y. C.P.L.R. 5225(b) (authorizing judgment
creditor to commence special proceeding against garnishee
who holds assets of judgment debtor).
3 Although the U.S. Treasury Department blocks the
transmission of Cuban funds by federally chartered clearing
banks in New York, see 31 C.F.R. § 515.201, the FSIA allows
judgment creditors against a foreign state to attach blocked
funds that constitute property of the foreign state or its
instrumentalities, see 28 U.S.C. § 1610(g).
4 The omnibus petition included claims by two other sets of
plaintiffs seeking to collect unrelated judgments against Cuba.
Those claims were consolidated before the District Court for
administrative purposes but are not at issue in this appeal.
8
BBVA answered and moved to dismiss the special
proceeding for lack of subject matter jurisdiction under the
FSIA. The District Court construed BBVA’s argument as a
collateral attack on the Florida judgment and denied the
motion, reasoning, as relevant here, that the Florida court
held a trial on the merits and “made appropriate
jurisdictional findings,” including finding that “Cuba was
designated as a state sponsor of terrorism either before
[Vera’s father’s killing] or partially as a result of th[at] act.”
Vera v. Republic of Cuba, 40 F. Supp. 3d 367, 376 (S.D.N.Y.
2014). This finding, the court concluded, “satisfied the
criteria of 28 U.S.C. § 1605(a)(7) (now § 1605A), and
established that the Florida [court] . . . had jurisdiction over
Cuba.” Id.
Shortly thereafter, the District Court denied BBVA’s
motion to quash and granted Vera’s motion to compel
BBVA’s compliance with the information subpoena,
ordering the bank to “provide full and complete answers
with respect to the Republic of Cuba’s assets located in
[BBVA’s] branches outside of, as well as inside, the United
States.” Vera v. Banco Bilbao Vizcaya Argentaria (S.A.), No. 12
Civ. 1596, 2014 U.S. Dist. LEXIS 187222, at *6 (S.D.N.Y. Sept.
10, 2014). The District Court rejected BBVA’s argument
concerning subject matter jurisdiction for the same reason it
previously denied BBVA’s motion to dismiss the turnover
proceeding—namely, that the Florida court already made
the appropriate findings to support the exercise of
jurisdiction over Cuba. See id. at *7; see also Vera, 40 F. Supp.
3d at 376. The District Court also concluded it had personal
jurisdiction over the foreign bank. Id. at *8–9.
9
The District Court subsequently denied BBVA’s
motion for reconsideration and granted Vera’s petition for a
turnover of assets. See Vera v. Republic of Cuba, 91 F. Supp.
3d 561, 564, 573 (S.D.N.Y. 2015).5 BBVA declined to produce
further information in compliance with the subpoena,
prompting the District Court to hold it in contempt. This
appeal followed.6
II
The issue before us concerns the enforceability of the
information subpoena Vera served on BBVA in an effort to
execute his federal default judgment against Cuba. BBVA
argues the subpoena is void and unenforceable because the
District Court lacked subject matter jurisdiction over the
action in which it was served and personal jurisdiction over
BBVA necessary to compel worldwide discovery.
5 BBVA separately appealed the District Court’s order granting
Vera’s petition for a turnover of assets held at BBVA’s New York
branch as well as its order denying BBVA’s motion for a stay of
the turnover proceeding pending resolution of this appeal.
BBVA’s appeal from the order denying its motion for a stay is
currently pending before our Court.
6 BBVA initially appealed the District Court’s orders directing
BBVA to comply with the subpoena and denying
reconsideration, but we dismissed those appeals from non‐final
orders for lack of appellate jurisdiction. See Vera v. Republic of
Cuba, 651 F. App’x 22, 24 (2d Cir. 2016); Vera v. Republic of Cuba,
802 F.3d 242, 248 (2d Cir. 2015).
10
Although BBVA challenges the validity of the
subpoena on both grounds, we resolve this appeal on the
first, see Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping
Corp., 549 U.S. 422, 431 (2007), reviewing the District
Court’s legal conclusions regarding subject matter
jurisdiction under the FSIA de novo and its factual findings
for clear error, see In re Terrorist Attacks on Sept. 11, 2001, 714
F.3d 109, 113 (2d Cir. 2013). For the reasons that follow, we
hold that the District Court lacked subject matter
jurisdiction over Vera’s action against Cuba and therefore
had no power to enter judgment against it. Accordingly, the
subpoena served to enforce that judgment is void.
A
Two principles of federal jurisdiction guide our
analysis. First, subject matter jurisdiction “functions as a
restriction on federal power.” Ins. Corp. of Ir., Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).
Federal courts may not proceed at all in any cause without
it. See Sinochem, 549 U.S. at 430–31. Second, “the subpoena
power of a court cannot be more extensive than its
jurisdiction.” U.S. Catholic Conference v. Abortion Rights
Mobilization, Inc., 487 U.S. 72, 76 (1988). A district court
must therefore determine whether it has jurisdiction, no
matter how a case comes before it. If the court lacks
jurisdiction over the proceeding and issues a subpoena that
does not aid in determining jurisdiction, the subpoena is
void and unenforceable. See id. at 80.
These principles are particularly important in an
action against a foreign sovereign. “By reason of its
11
authority over foreign commerce and foreign relations,
Congress has the undisputed power to decide, as a matter
of federal law, whether and under what circumstances
foreign nations should be amenable to suit in the United
States.” Verlinden B.V. v. Cent. Bank of Nig., 461 U.S. 480, 493
(1983). Congress exercised that authority when it enacted
the Foreign Sovereign Immunities Act of 1976, Pub. L. No.
94‐583, 90 Stat. 2891 (codified as amended at 28 U.S.C.
§§ 1330, 1391(f), 1441(d), 1602–11), which comprehensively
regulates the amenability of foreign nations to suit in the
United States.7
The FSIA declares that “a foreign state shall be
immune from the jurisdiction of the courts of the United
States and of the States except as provided in sections 1605
to 1607 of this chapter.” 28 U.S.C. § 1604. If one of the
enumerated exceptions applies, the foreign state is liable, in
state or federal court, “in the same manner and to the same
extent as a private individual under like circumstances.” Id.
§ 1606. If no exception applies, no U.S. court has jurisdiction
to hear the claim. See id. § 1604; Verlinden, 461 U.S. at 489,
493–94.
In addition to the FSIA’s substantive provisions, 28
U.S.C. § 1330 provides the “sole basis for obtaining
jurisdiction” in federal district court over claims against a
foreign state. Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993)
7 See Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venezuela,
No. 15–707, 2017 U.S. App. LEXIS 12354 at *13–19 (2d Cir. July
11, 2017), for a detailed history of the FSIA.
12
(quoting Argentine Republic v. Amerada Hess Shipping Corp.,
488 U.S. 428, 443 (1989)). Section 1330 states that the
“district courts shall have original jurisdiction . . . of any
nonjury civil action against a foreign state . . . as to any
claim for relief in personam with respect to which the
foreign state is not entitled to immunity either under [28
U.S.C. §§ 1605–07] or under any applicable international
agreement.” 28 U.S.C. § 1330(a) (emphasis added).
Section 1330 thus “work[s] in tandem” with the
FSIA’s substantive provisions: Section 1604 bars state and
federal courts from exercising jurisdiction when a foreign
state is entitled to immunity, and section 1330 confers
jurisdiction on federal district courts only if one of the
exceptions to immunity applies. Argentine Republic, 488 U.S.
at 434. “At the threshold of every action in a [d]istrict
[c]ourt against a foreign state, therefore, the court must
satisfy itself that one of the exceptions applies—and in
doing so it must apply the detailed federal law standards
set forth in the [FSIA].” Verlinden, 461 U.S. at 493–94. If the
court fails to undertake that analysis and determine for
itself that an exception applies, it has no authority to hear
the claim. See id. at 493.
B
Because the subpoena at issue in this appeal was
served on BBVA in an effort to enforce Vera’s federal
default judgment, the legitimacy of the subpoena is tied to
the District Court’s jurisdiction to enter judgment against
Cuba under one of the exceptions to sovereign immunity in
the FSIA. See Bank Markazi v. Peterson, 136 S. Ct. 1310, 1317
13
n.1 (2016) (jurisdiction over foreign state exists only under
an exception to sovereign immunity in the FSIA); U.S.
Catholic Conference, 487 U.S. at 80 (subpoena is void if
district court lacked subject matter jurisdiction in
underlying action).
The only exception urged in this case is for state‐
sponsored acts of terrorism. See 28 U.S.C. § 1605A. That
exception eliminates sovereign immunity and permits suits
directly against a foreign state in any case
in which money damages are sought against
[the] foreign state for personal injury or death
that was caused by an act of torture,
extrajudicial killing, aircraft sabotage, hostage
taking, or the provision of material support or
resources for such an act if . . . engaged in by an
official, employee, or agent of such foreign
state while acting within the scope of his or her
office, employment, or agency.
Id. § 1605A(a)(1). Even if a foreign state has engaged in one
of the terrorist acts described above, however, it is not
subject to suit in the United States unless the foreign state
was “designated as a state sponsor of terrorism at the time
the act . . . occurred” or was later “so designated as a result
of such act.” Id. § 1605A(a)(2)(A)(i)(I) (emphasis added).
1
The District Court asserted that it had subject matter
jurisdiction over Vera’s action against Cuba pursuant to the
terrorism exception of the FSIA. Yet it did not make any
findings that would support the application of that
14
exception. Instead, the District Court adopted the Florida
court’s determination that the terrorism exception applied,
without independently assessing Cuba’s immunity from
suit. In the District Court’s view, the Florida court found
“that Cuba was designated as a state sponsor of terrorism
either before . . . or partially as a result of [Vera’s father’s
death],” and resolved the threshold question of whether the
District Court had jurisdiction over Vera’s claim. Vera, 40 F.
Supp. 3d at 376. That was error for two reasons.
First, the Florida court did not find that Cuba was
designated a state sponsor of terrorism “either before . . . or
partially as a result” of Vera’s father’s death, as section
1605A requires. Id. The only findings the Florida court
made regarding Cuba’s terrorist designation were that
Cuba “was designated to be a state sponsor of terrorism in
1982 . . . and remains so designated.” J.A. 273. Those
findings do not satisfy the terrorism exception.
Second, even if the Florida court had found that Cuba
was designated a state sponsor of terrorism as a result of
Vera’s father’s death, the District Court would not be
bound by that jurisdictional finding. See Jerez v. Republic of
Cuba, 775 F.3d 419, 422 (D.C. Cir. 2014) (jurisdictional
determinations made in a default judgment are not entitled
to res judicata effect if the defendant did not “actually
appear[]” in the proceedings); Am. Steel Bldg. Co. v. Davidson
& Richardson Constr. Co., 847 F.2d 1519, 1521 (11th Cir. 1988)
(“[W]here the defendant does not appear, and judgment is
by default, the state court judgment does not preclude the
federal court from reviewing the jurisdictional issues.”).
Notwithstanding the fact that the Florida court “held a trial
15
. . . on the merits,” Vera, 40 F. Supp. 3d at 371, the
jurisdictional facts necessary to eliminate Cuba’s sovereign
immunity under the FSIA were not fully and fairly litigated
in that action. The Florida court’s jurisdictional findings,
such as they were, neither bind the District Court in Vera’s
subsequent suit nor can they be relied on by the parties. See
Underwriters Nat’l Assurance Co. v. N.C. Life & Accident &
Health Ins. Guar. Ass’n, 455 U.S. 691, 706 (1982); cf. Transaero,
Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 730 (2d Cir.
1998) (jurisdictional determinations should not be
considered preclusive when made upon the grant of a
default judgment).
The District Court thus erred doubly in relying on the
Florida court’s findings of fact as the basis for its
jurisdiction: the Florida court did not make the findings
necessary to render Cuba subject to suit under the terrorism
exception of the FSIA and, even if it had, those findings
would not bind or aid the District Court, which was
required to analyze the record independently to determine
if Cuba was immune. By failing to make that factual
inquiry, the District Court did not fulfill its obligation to
“apply the detailed federal law standards set forth in the
[FSIA]” in order to “satisfy itself that one of the exceptions
[to immunity] applies.” Verlinden, 461 U.S. at 494. Had the
District Court engaged in the proper analysis, the only
conclusion it could have reached on this record is that Cuba
was immune from Vera’s suit.
16
2
In order to invoke the terrorism exception of the
FSIA, Vera had the burden to establish that Cuba was
designated a state sponsor of terrorism in 1982 as a result of
his father’s death. See City of New York v. Permanent Mission
of India to the United Nations, 446 F.3d 365, 369 (2d Cir. 2006)
(explaining that the burden of proof is on the party seeking
to establish the court’s jurisdiction). The only evidence Vera
submitted to link Cuba’s terrorist designation to the
extrajudicial killing of his father, however, consisted of a
single expert affidavit from a professor of Cuban‐American
studies, who opined that Cuba’s eventual designation as a
state sponsor of terrorism was “based, at least in part, on
extrajudicial killings and tortures.” J.A. 474. According to
Vera’s expert, “given the notoriety of [Vera’s father], his
stature among the Cuban exile community, and the press
coverage his assassination generated,” his death was likely
one of “260 acts of violence” by the Cuban government
between 1975 and 1982 that ultimately influenced the State
Department’s decision to designate Cuba a state sponsor of
terrorism. J.A. 476. But Vera’s expert cited no evidence to
support that conclusion or specifically link Cuba’s terrorist
designation to Vera’s father’s death.
The record suggests the State Department designated
Cuba a state sponsor of terrorism generally because of its
“support for revolutionary violence and groups [that] use
terrorism as a policy instrument.” J.A. 347 (excerpt of
Regulation Changes on Exports: Hearing Before the Subcomm.
on Near E. & S. Asian Affairs of the S. Comm. on Foreign
Relations, 97th Cong. 13 (1982) (statement of Ernest
17
Johnston, Jr., Deputy Assistant Sec’y for Econ. Affairs, Dep’t
of State)). For example, the State Department’s 1982 bulletin
designating Cuba a state sponsor of terrorism, which BBVA
introduced into evidence, indicates that Cuba’s terrorist
designation derived from the country’s support for groups
like M‐19 that have “repeatedly engaged in kidnappings,
bombings, hostage‐taking, and aircraft hijacking.” Id. A
contemporaneous State Department message to Congress
reinforces that view. See J.A. 314–19 (excerpt of The Role of
Cuba in Int’l Terrorism & Subversion: Hearing Before the
Subcomm. on Sec. & Terrorism of the S. Comm. on the Judiciary,
97th Cong. 143–45 (1982) (testimony of Ambassador
Thomas O. Enders, Assistant Sec’y of State for Inter‐Am.
Affairs, Dep’t of State)) (describing specific examples of
Cuba’s “promotion of violent revolution in Latin
America”). The legislative materials and statements by
government officials submitted in this case make no
mention of extrajudicial killings or of the death of Vera’s
father.
Because the record contains no evidence that
specifically links Cuba’s terrorist designation to Vera’s
father’s death, Vera failed to meet his burden to establish
that the terrorism exception applies. In the absence of a
statutory exception, Cuba was jurisdictionally immune
from Vera’s suit. See 28 U.S.C. § 1604; Bank Markazi, 136 S.
Ct. at 1317 n.1.8
8 In light of our conclusion, we have no need to address BBVA’s
arguments that Vera was not a proper “claimant” under § 1605A
or that Cuba was not responsible for the extrajudicial killing of
18
The D.C. Circuit reached a similar conclusion in Jerez.
The plaintiff in that case won a default judgment against
Cuba in Florida state court under the terrorism exception of
the FSIA, based on allegations that the Cuban government
tortured him in the 1960s and 1970s. Jerez, 775 F.3d at 421.
The plaintiff then sued Cuba in the United States District
Court for the Southern District of Florida, which granted
full faith and credit to the Florida judgment and awarded
the plaintiff over $200 million in damages. Id. The plaintiff
registered the federal judgment in the United States District
Court for the District of Columbia, but that court refused to
enforce the judgment and vacated the plaintiff’s writs of
attachment. Id. 421–22. It held that both the Florida state
court and the federal district court in Florida lacked subject
matter jurisdiction under the FSIA, rendering their default
judgments void. Id. at 422.
On appeal, the D.C. Circuit reviewed the
jurisdictional basis for Cuba’s immunity de novo and
affirmed the district court’s conclusion that the terrorism
exception did not apply. Id. at 423, 424–25. Relying on the
same Congressional testimony BBVA introduced in this
case, the D.C. Circuit held that “Cuba was designated a
state sponsor [of terrorism] not because of the torture
inflicted on [the plaintiff], but because of support for acts of
Vera’s father. Furthermore, because Vera did not meet his
burden to show that a statutory exception applies, the case
presents no relevant unanswered factual issues regarding the
existence of subject matter jurisdiction, and it is unnecessary to
remand to the District Court on the jurisdictional question.
19
international terrorism such as those committed by the
terrorist group M‐19.” Id. at 425 (internal quotation marks
omitted). As a result, the D.C. Circuit concluded that “no
statutory exception to sovereign immunity under the FSIA
applie[d].” Id. Both the Florida state court that initially
granted the default judgment and the Florida district court
that gave full faith and credit to the state court judgment
lacked subject matter jurisdiction. Their “default judgments
[were] therefore void.” Id.
Although our case arises in a somewhat different
procedural context, we agree with the reasoning and
conclusion of Jerez. The State Department did not designate
Cuba a state sponsor of terrorism until 1982—six years after
Vera’s father was killed—and the record before us fails to
establish that Cuba was designated a state sponsor of
terrorism as a result of Vera’s father’s death. Accordingly,
the terrorism exception of the FSIA, the only potential basis
for subject matter jurisdiction in this case, does not apply.
Cuba was immune from Vera’s federal action, the District
Court lacked subject matter jurisdiction to enter judgment
against it, and the subpoena issued to enforce the invalid
judgment was void.9
9 We need not consider a collateral attack on the Florida
judgment to resolve this appeal. BBVA’s principal argument—an
argument with which we agree—is that the District Court lacked
subject‐matter jurisdiction over Vera’s action against Cuba. In
the absence of a statutory exception to sovereign immunity, the
District Court did not have adjudicatory authority to entertain
Vera’s cause of action seeking recognition and entry of the
20
C
Faced with the evidence of Cuba’s immunity under
the FSIA, Vera proposes two alternative sources of subject
matter jurisdiction over his claim.
First, he contends that an action seeking recognition
of a foreign judgment under the Full Faith and Credit Act
presents a question arising under the laws of the United
States and establishes federal question jurisdiction under 28
U.S.C. § 1331(a). But the Full Faith and Credit Act, which
requires state court judgments to receive the same credit,
validity, and effect in every other court in the United States,
28 U.S.C. § 1738, has no bearing on the question of whether
a district court has subject matter jurisdiction to hear a
claim. See Minnesota v. N. Sec. Co., 194 U.S. 48, 72 (1904)
(concluding that the Full Faith and Credit Clause does not
“ha[ve] any bearing whatever” upon questions of
jurisdiction). It “merely provides the standard to be used in
. . . proceedings over which the court already has
jurisdiction.” Hazen Research, Inc. v. Omega Minerals, Inc.,
497 F.2d 151, 153 n.1 (5th Cir. 1974).
As the Supreme Court has said of the Full Faith and
Credit Act and its constitutional counterpart,
While they make the record of a judgment,
rendered after due notice in one state,
conclusive evidence in the courts of another
Florida judgment. Our analysis ends there—as the District
Court’s should have.
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state, or of the United States, of the matter
adjudged, they do not affect the jurisdiction,
either of the court in which the judgment is
rendered, or of the court in which it is offered
in evidence.
Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 292 (1888),
overruled in part on other grounds by Milwaukee Cty. v. M.E.
White Co., 296 U.S. 268, 278 (1935).
Thus, an attempt to obtain a federal judgment based
on the strength of a state court judgment is not a case
arising under the Constitution, laws, or treaties of the
United States that would trigger federal question
jurisdiction. See Thompson v. Thompson, 484 U.S. 174, 182
(1988) (“[T]he Full Faith and Credit Clause, in either its
constitutional or statutory incarnations, does not give rise
to an implied federal cause of action.”); see also Miccosukee
Tribe of Indians of Fla. v. Kraus‐Anderson Constr. Co., 607 F.3d
1268, 1276 (11th Cir. 2010) (The Full Faith and Credit Act
“does not . . . confer jurisdiction on a federal district court
to domesticate a judgment rendered by a court of another
jurisdiction.”); Rogers v. Platt, 814 F.2d 683, 690 (D.C. Cir.
1987) (“[N]either the constitutional full faith and credit
clause nor the statutory implementing provisions provides
a predicate for federal jurisdiction.”). If it were otherwise,
“any attempt, at any time or place, by any person, to
enforce the provisions of any state statute or judgment
would be, without more, a subject of federal jurisdiction.”
California ex rel. McColgan v. Bruce, 129 F.2d 421, 424 (9th
Cir. 1942).
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Second, Vera contends that the District Court had
subject matter jurisdiction over the proceedings to enforce
the federal default judgment pursuant to the Terrorism Risk
Insurance Act of 2002 (the “TRIA”), Pub. L. No. 107‐297, 116
Stat. 2322, 2337 (codified at 28 U.S.C. § 1610 note). The TRIA
provides courts with subject matter jurisdiction over post‐
judgment execution and attachment proceedings against
property of a foreign state “in every case in which a person
has obtained a judgment against a terrorist party on a claim
based upon an act of terrorism, or for which a terrorist
party is not immune under section 1605A or 1605(a)(7).”
TRIA § 201(a).
That provision grants jurisdiction over execution and
attachment proceedings, however, only if “a valid judgment
has been entered against [the] foreign sovereign.” Weinstein
v. Islamic Republic of Iran, 609 F.3d 43, 48 (2d Cir. 2010)
(emphasis added); see also Kirschenbaum v. 650 Fifth Ave. &
Related Props., 830 F.3d 107, 123 (2d Cir. 2016) (“[W]here a
valid judgment has been entered against a foreign state, the
foreign state’s United States property is immune from
attachment and execution unless a statutory exception
applies.” (emphasis added)). For the reasons already
discussed, the District Court has not entered a valid
judgment against Cuba. Therefore, the TRIA did not
provide a proper basis for subject matter jurisdiction over
subsequent proceedings to execute the District Court’s
judgment.
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III
Because the District Court lacked subject matter
jurisdiction over Vera’s action against Cuba, the subpoena
served on BBVA to enforce the judgment entered in that
action is void. The District Court’s order is reversed, with
costs, and the case is remanded with instructions to grant
BBVA’s motion to quash.
24