Sherry Sullivan v. Republic of Cuba

United States Court of Appeals
For the First Circuit

No. 17-2011

SHERRY SULLIVAN,

Plaintiff, Appellant,

v.

REPUBLIC OF CUBA,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Howard, Chief Judge,
Lynch and Kayatta, Circuit Judges.

David J. Van Dyke and Lynch & Van Dyke, P.A. on brief for
appellant.

May 22, 2018
 LYNCH, Circuit Judge. In 2009, a Maine Superior Court

awarded the plaintiff, Sherry Sullivan ("Sullivan"), a default

judgment of $21 million against the Republic of Cuba for the

alleged "extrajudicial killing" of her father, said to be a covert

U.S. agent. Sullivan sought to enforce this judgment in federal

district court in 2016. When Cuba again failed to appear, Sullivan

moved for a default judgment in federal court as well. The

district court denied Sullivan's motion and dismissed her suit for

lack of subject matter jurisdiction under the Foreign Sovereign

Immunities Act ("FSIA"), 28 U.S.C. §§ 1330, 1602-1611. Sullivan

v. Republic of Cuba, 289 F. Supp. 3d 231, 246 (D. Me. 2017). We

affirm.

I.

Sherry Sullivan's father, Geoffrey Sullivan ("Mr.

Sullivan"), disappeared in October 1963 while serving in the Army

National Guard. Id. at 233. Sullivan was a child at the time.

She has since dedicated much of her life to discovering the truth

about his disappearance, including "contacting dozens of federal

agencies and officials" and filing a Freedom of Information Act

("FOIA") request. Id. at 235. Based on her research, Sullivan

concluded that her father was captured during a covert mission

against Fidel Castro, was incarcerated by the Castro regime, and

eventually died while in the custody of the Cuban government

sometime after 1982.

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 In 2007, Sullivan filed a wrongful-death suit against

Cuba in Maine Superior Court. Cuba was properly served and did

not appear in the case. A Maine Superior Court entered default

judgment for Sullivan on August 10, 2009. After conducting a

hearing, at which Cuba also did not appear, the court awarded

Sullivan $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. Sullivan was the sole

witness at the hearing. The court issued a memorandum detailing

its factual findings and legal conclusions said to be in support

of its award. That memorandum tracked the proposed findings and

conclusions Sullivan had submitted to the court and adopted them

virtually verbatim. We recount the portions relevant to this

appeal.

According to the Maine Superior Court, Mr. Sullivan and

another member of the National Guard, Alexander Rorke, Jr.,

participated in a series of covert missions in Cuba and Central

America against Castro's regime from 1960 to 1963. In the fall of

1963, the two men flew a plane from Florida, purportedly to go

"lobster hauling" in Honduras. They actually traveled to various

cities in Mexico before leaving for an "undisclosed location" on

October 1, 1963.

The court adopted Sullivan's proposed finding that, on

this journey, "Mr. Sullivan was shot down over Cuba . . . and had

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been imprisoned by the Castro regime in Cuba . . . in violation of

international law, thereafter." The court based its conclusion on

second- and third-hand reports, provided by Sullivan, of those who

had witnessed or heard of Mr. Sullivan's capture and subsequent

detention in Havana. The court also adopted Sullivan's proposed

finding that Cuba "intentionally . . . caused the indeterminate,

undisclosed and illegal incarceration of Mr. Sullivan,

which . . . has culminated in the legally-declared death of Mr.

Sullivan and which constitutes an extrajudicial killing under

applicable law." The court supported this conclusion by noting

that Mr. Sullivan had been "declared legally dead" by the United

States Social Security Administration as of 1963.1

Based on these factual findings, the court concluded

that it had subject matter jurisdiction over Sullivan's suit.

Although the FSIA generally bars suits against foreign sovereigns,

the court adopted Sullivan's proposed legal conclusion that Cuba

did not have immunity in this case because its "extrajudicial

killing" of Mr. Sullivan fell under the terrorism exception to the

FSIA. See 28 U.S.C. § 1605A(a)(1) (originally enacted as 28 U.S.C.

1 Although the record is unclear as to whether Sullivan or
her mother applied to have Mr. Sullivan declared legally dead,
Sullivan admitted at a hearing before the federal district court
that "she has benefited from a Social Security Administration
determination that [her father] died in 1963." Sullivan, 289 F.
Supp. 3d at 246.

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§ 1605(a)(7)). The court concluded that "as the successor to,

heir to, and guardian of her father's estate," Sullivan was

entitled to the damages enumerated above.

Over the next seven years, Sullivan did not collect any

portion of her $21 million damages award. On June 21, 2016, she

filed suit in federal district court to enforce her default

judgment. Cuba again did not appear after being properly served.

Sullivan, 289 F. Supp. 3d at 235. On May 12, 2017, Sullivan moved

for entry of default. Id.

The district court was concerned about the validity of

the state court's default judgment and ordered further briefing.

Specifically, the court asked Sullivan to address whether the Maine

Superior Court had subject matter jurisdiction over the original

action and whether there was sufficient evidence of an

"extrajudicial killing" to warrant entry of default against Cuba.

Id. at 235-36. After considering Sullivan's submission, the

district court scheduled a hearing for August 28, 2017. Id. at

237.

Sullivan presented two witnesses at the hearing: herself

and an attorney.2 Sullivan primarily testified regarding evidence

2 The attorney only testified as to Sullivan's incentive
for filing suit in federal court: she needed a final judgment
issued by a federal district court in order to collect her award
from a designated fund established by the Justice for United States
Victims of State Sponsored Terrorism Act, 34 U.S.C. § 20144. The
attorney offered no testimony as to Mr. Sullivan's disappearance

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that -- in her view -- proved her father was imprisoned in Cuba

into the early 1990s. Id. She introduced several exhibits,

including:

x A letter from her mother, Cora Sullivan, indicating that Cora

had received information about Mr. Sullivan's plane crash and

imprisonment in Cuba;

x A compilation of second- and third-hand reports of sightings

of Mr. Sullivan in Cuban prisons;

x Notes from researchers of the show "Unsolved Mysteries,"

which featured Mr. Sullivan's disappearance; and

x A sworn affidavit by Stephen Scherer stating that a security

guard at his former job had mentioned encountering a "white

American" who "claimed to be a private pilot" in a Cuban

prison. Id. at 237-38.

Sullivan also submitted additional exhibits after the hearing,

including two purported government documents that confirmed Mr.

Sullivan's plane had crashed after departing Mexico, and indicated

that "rumors emanating from Cuban refugees" suggested Mr. Sullivan

may have survived the crash in Cuba. Id. at 238-39.

After considering all of Sullivan's proffer, and

without ruling on whether the items were admissible, the district

court denied her motion for default judgment and dismissed the

or as to other matters pertinent to the applicability of the
terrorism exception. Id. at 237.

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action. The district court held that it lacked subject matter

jurisdiction over the suit because of Sullivan's failure to "show[]

that the terrorism exception to foreign sovereign immunity

applie[d]." Id. at 244. Specifically, the district court

disagreed with the Maine Superior Court's conclusion that Mr.

Sullivan was "extrajudicially killed" by Cuba for purposes of the

FSIA, finding that Sullivan "ha[d] not proffered any evidence" to

that effect. Id. Sullivan timely appealed.

II.

The FSIA "provides the sole basis for obtaining

jurisdiction over a foreign state in the courts of this country."

Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428,

443 (1989). The Republic of Cuba is presumptively immune from

suit unless Sullivan can prove that its alleged conduct falls under

one of the exceptions specified in the FSIA. Saudi Arabia v.

Nelson, 507 U.S. 349, 355 (1993).

Sullivan argues that the district court erred in

dismissing her complaint because the Maine Superior Court had

expressly found that the terrorism exception to the FSIA applies

to the alleged extrajudicial killing of her father. Sullivan

asserts that by "'looking behind' the factual findings of the Maine

Judgment and determining . . . that there was no evidence of an

extra-judicial killing," the district court violated the Full

Faith and Credit Act ("FFCA"), 28 U.S.C. § 1738, which requires

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"judicial proceedings" to be given "the same full faith and credit

in every court within the United States . . . as they have by law

or usage in the courts of such State, Territory or Possession from

which they are taken." We find no error and affirm the dismissal

of this action.

A.

We assume arguendo that the FFCA applies and find that

the district court's independent assessment of subject matter

jurisdiction did not violate the Act. As a matter of state law,

Sullivan's best possible argument is that the Maine court gave her

a binding judgment to which full faith and credit must be given.

She cannot prevail even on that argument.

Maine law expressly permits litigants to collaterally

attack a default judgment based on the issuing court's lack of

subject matter jurisdiction. See Hawley v. Murphy, 736 A.2d 268,

271 (Me. 1999) (holding that "an entry of default against an

individual does not serve as a bar to that individual's right to

challenge the subject matter jurisdiction of the court"). That

concept is also embodied in Me. R. Civ. P. 12(h)(3), which says,

"[w]henever it appears by suggestion of the parties or otherwise

that the court lacks jurisdiction of the subject matter, the court

shall dismiss the action." (emphasis added). As such, even if the

Maine Superior Court's default judgment were to be accorded full

faith and credit, a federal court would not be precluded from

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determining, de novo, whether the state court had subject matter

jurisdiction to enter that judgment.3

But Sullivan may not even be entitled to argue that the

Maine judgment should be accorded full faith and credit. Two of

our sister circuits, in decisions under the FSIA, have held that,

as a matter of federal law, the FFCA does not apply to default

judgments rendered in excess of the court's subject matter

jurisdiction. See Vera v. Republic of Cuba, 867 F.3d 310, 320 (2d

Cir. 2017); Jerez v. Republic of Cuba, 775 F.3d 419, 423 (D.C.

Cir. 2014). These circuits cite the Supreme Court's decision in

Underwriters National Assurance Co. v. North Carolina Life and

Accident and Health Insurance Guaranty Ass'n, 455 U.S. 691 (1982),

which expressly held that "before a court is bound by the judgment

rendered in another State, it may inquire into the jurisdictional

basis of the foreign court's decree. If that court did not have

jurisdiction over the subject matter . . . full faith and credit

3 No Maine court has directly addressed whether a court
asked to enforce a default judgment should accord a degree of
deference to the issuing court's jurisdictional findings of fact.
Indeed, under Maine law, "the question of the preclusive effect of
facts established by default" is an open one. See McAlister v.
Slosberg (In re Slosberg), 225 B.R. 9, 14-15 (Bankr. D. Me. 1998).
However, given that the Supreme Judicial Court of Maine has held
that a court's determination of subject matter jurisdiction in a
default judgment is not binding on future courts, see Hawley, 736
A.2d at 271, there is no reason why the superior court's
jurisdictional findings of fact should nevertheless command
deference.

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need not be given." Id. at 705. We need not decide, however,

whether the FFCA applies here.

We hold that the district court was entitled to

independently review whether Sullivan's case fell within the

terrorism exception to the FSIA.

B.

We turn to whether the district court correctly

dismissed Sullivan's suit for lack of subject matter jurisdiction

under the FSIA. In so doing, we review the district court's

findings of fact for clear error and its legal conclusions de novo.

Vera, 867 F.3d at 315.

The terrorism exception to the FSIA expressly permits

suits against foreign states for "personal injury or death" caused

by an act of terrorism, such as an "extrajudicial killing."

28 U.S.C. § 1605A(a)(1). To invoke this exception, Sullivan must

establish that (1) Cuba committed an "extrajudicial killing,"

which is defined, by cross-reference to the Torture Victim's

Protection Act ("TVPA"), as "a deliberated killing not authorized

by a previous judgment pronounced by a regularly constituted

court," see id. § 1605A(h)(7) (citing Pub. L. No. 102-256, § 3(a),

106 Stat. 73, 73 (1992)); and that (2) Cuba was "designated as a

state sponsor of terrorism at the time the [extrajudicial killing]

occurred" or was later "so designated as a result of such act,"

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id. § 1605A(a)(2)(A)(i)(I). The district court correctly

determined that Sullivan failed to establish the first prong.

The record is empty of "any evidence that [Sullivan's]

father was the victim of an intentional killing by Cuba and that

any such killing was committed in the absence of legal process."

Sullivan, 289 F. Supp. 3d at 244. At best, Sullivan's second- and

third-hand reports -- e.g., her mother's letter, the government

documents, and Scherer's affidavit, even assuming admissibility

-- give rise to a plausible inference that her father's plane was

shot down over Cuba and that he was captured and incarcerated by

the Cuban government into the early 1990s (well after Cuba was

designated a state sponsor of terrorism in 1982). That is far

from enough.

Sullivan provided no evidence that Mr. Sullivan was the

subject of a "deliberated killing not authorized by a previous

judgment pronounced by a regularly constituted court." Pub. L.

No. 102-256, § 3(a), 106 Stat. 73, 73 (1992). The Maine Superior

Court excused this failure by ruling that "the

incarceration . . . of Mr. Sullivan, which has culminated in the

legally-declared death of Mr. Sullivan[,] . . . constitutes an

extrajudicial killing under applicable law."4 As the district

4 But, as noted above, the declaration of death was made
by the Social Security Administration, pursuant to its own
regulations, which have nothing to do with whether the cause of
death was an "extrajudicial killing."

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court astutely pointed out, this conclusion has no basis under any

reading of the FSIA or the TVPA. In any event, Mr. Sullivan was

declared legally dead in 1963, well before Cuba was designated a

state sponsor of terrorism.

Sullivan's only rejoinder is that this court should join

the D.C. Circuit in what she says was that court's lowering of the

evidentiary burden where the defendant is a former or current state

sponsor of terrorism who refuses to submit to discovery. See Han

Kim v. Democratic People's Republic of Korea, 774 F.3d 1044, 1045

(D.C. Cir. 2014). She misreads the case. The court there did say

that "[r]equiring a plaintiff to produce direct, firsthand

evidence of the victim's torture and murder would . . . thwart the

purpose of the terrorism exception: holding state sponsors of

terrorism accountable for torture and extrajudicial killing." Id.

However, the considerations here are quite different, and we would

be reluctant to join Sullivan's reading of Han Kim. She would

fail to meet her burden of proof even if such a relaxed evidentiary

standard were applied.

Han Kim is distinguishable for many reasons. There, the

district court denied the plaintiffs' motion for default judgment

against North Korea because they provided no "first-hand" evidence

of their father's torture and subsequent death at the hands of the

North Korean government. Id. The court of appeals reversed,

finding that the plaintiffs had produced "admissible record

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evidence . . . that North Korea abducted Reverend Kim, that it

invariably tortures and kills political prisoners, and that

through terror and intimidation it prevents any information about

those crimes from escaping to the outside world." Id. Further,

the court noted that North Korea had long been "a mainstay on the

State Department's list of terror sponsors." Id. at 1046. Here,

Sullivan failed to provide any evidence, circumstantial or

otherwise, that the Cuban government killed her father after

keeping him incarcerated for at least twenty years, let alone that

Cuba acted extrajudicially.

Because Sullivan cannot establish that the terrorism

exception applies, the district court correctly held that it lacked

subject matter jurisdiction.

III.

We affirm the dismissal of this action.

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