Julio Cesar Lubian v. Republic of Cuba

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10662 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 21, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cv-20533-PAS

JULIO CESAR LUBIAN, M.D.,
ILEANA MASTRAPA, M.D., et al.,

Plaintiffs-Appellants,

versus

REPUBLIC OF CUBA,
State sponsor of terrorism,
BOLIVARIAN REPUBLIC OF VENEZUELA,
State in collaboration with such States sponsors of terrorism as Cuba and Iran,
PETROLEOUS DE VENEZUELA, S.A. (PDVSA),
commercial agency owned by the Venezuelan state,

Defendants-Appellees.

__________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(September 21, 2011)
Before BARKETT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

Plaintiffs, Cuban medical professionals who allege they were kept in

positions of forced labor in Venezuela, appeal the district court’s dismissal of their

claims on the basis that it lacked subject matter jurisdiction because Plaintiffs are

foreign citizens and Defendants are foreign sovereignties. On appeal, Plaintiffs

contend that the district court has jurisdiction pursuant to the Foreign

Sovereignties Immunity Act (“FSIA”).1 The district court was correct in its finding

that none of the FSIA exceptions apply to Plaintiffs claims and that the FSIA is the

sole source of jurisdiction for claims between foreign citizens and foreign

sovereignties. Thus, we affirm the district court’s dismissal of all of Plaintiffs’

claims.

The FSIA entitles foreign states immunity from the jurisdiction of United

States courts unless a statutory exception applies. 28 U.S.C. § 1604; Saudi Arabia

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Plaintiffs also argue that the court has jurisdiction under the Alien Tort Claims Act
(“ATCA”), the laws of the state of Florida, the laws of both Venezuela and Cuba, 28 U.S.C.
§ 1331, and 28 U.S.C. § 1367. Because the FSIA is the sole source of jurisdiction over a foreign
state in our courts, we need not address these other arguments. See Argentine Republic v.
Amereda Hess Shipping Corp., 488 U.S. 428, 435–38, 109 S. Ct. 683, 688–90 (1989). Further,
the Supreme Court has explicitly rejected the argument that the ATCA provides a basis for
jurisdiction over a foreign state. Id. Plaintiffs raise additional arguments in their brief that are, at
their core, additional arguments that jurisdiction existed. Because we conclude that no FSIA
statutory exception is met, we need not address those arguments either.

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v. Nelson, 507 U.S. 349, 351, 113 S. Ct. 1471, 1474 (1993). The act defines

“foreign states” to include agencies and instrumentalities of such states. 28 U.S.C.

§ 1603(a). It is the sole source of jurisdiction over a foreign state in our courts.

Argentine Republic v. Amereda Hess Shipping Corp., 488 U.S. 428, 435–38, 109

S. Ct. 683, 688–90 (1989). Venezuela is a foreign state and Plaintiffs concede that

Petróleos de Venezuela, S.A. (“PDVSA”), is an “agency or instrumentality” of

Venezuela, and therefore a “foreign state” within the meaning of the FSIA. See 28

U.S.C. § 1603(a), (b). Thus, both are entitled to immunity unless one of the

FSIA’s statutory exceptions applies.

Plaintiffs argue that the court has jurisdiction because two statutory

exceptions to the FSIA—the commercial activity exception, 28 U.S.C.

§ 1605(a)(2), the terrorism exception, § 28 U.S.C. 1605A—apply. The commercial

activities exception of the FSIA does not apply, both because the actions

complained of are not commercial in nature and because they do not have a direct

effect on the United States. The terrorism exception does not apply because none

of its requirements are met in this case.

Courts have jurisdiction over a foreign state and its agencies or

instrumentalities if the cause of action is “based . . . upon an act outside the

territory of the United States in connection with a commercial activity of the

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foreign state elsewhere and that act causes a direct effect in the United States.” 28

U.S.C. § 1605(a)(2). Plaintiffs’ underlying claims are for false imprisonment and

forced labor—activities related to the exercise of police powers—and are not

commercial in nature. See Nelson, 507 U.S. at 361–62, 113 S. Ct. at 1479–80

(“The conduct boils down to abuse of the power of its police by the Saudi

Government, and however monstrous such abuse undoubtedly may be, a foreign

state’s exercise of the power of its police has long been understood for purposes of

the restrictive theory as peculiarly sovereign in nature. Exercise of the powers of

police and penal officers is not the sort of action by which private parties can

engage in commerce.”) (internal citations omitted).

Additionally, the acts alleged here have no direct effect in the United States.

A direct effect within the meaning of the FSIA is one that follows “as an

immediate consequence of the defendant’s . . . activity.” Republic of Argentina v.

Weltover, Inc., 504 U.S. 607, 618, 112 S. Ct. 2160, 2168 (1992) (quotations and

citation omitted). Plaintiffs claim there is a direct effect on the United States

because the work of the Cuban medical professionals creates an inflow of oil and

money to Cuba, which is in turn used to finance an army that is a direct threat to

the United States. They also argue that any actions of PDVSA have an effect on

the United States because they sell petroleum here and because American

4
consumers pay a higher price for gas as a result of the agreement between Cuba

and Venezuela. None of these allegations plead the type of direct effect on the

United States required by § 1605(a)(2).

It is not clear whether Plaintiffs intend to appeal the ruling that the terrorism

exception of the FSIA was not met, because they make only passing mention of it

in their brief on appeal. However, even if this claim is raised on appeal, it is

unpersuasive. The district court was correct in its conclusion that “[n]one of the

requirements of the terrorism exception” pertain. Section 1605A applies only to

claims for “personal injury or death” arising from acts of “torture, extrajudicial

killing, aircraft sabotage, hostage taking, or the provision of material support or

resources for such an act” perpetrated by agents of a foreign state. 28 U.S.C.

§ 1605A(a)(1). Plaintiffs do not assert any “personal injury or death” claims.

Furthermore, even if plaintiffs’ claim fell within § 1605A, the district court

correctly found that three of 1605’s additional requirements were not met: (1) the

foreign state must have been designated a “state sponsor of terrorism” when the

predicate act occurred, 28 U.S.C. 1605A(a)(2)(A)(i)(I); (2) the claimant or victim

must, at the time the predicate act occurred, have been a citizen, soldier, or

employee of the United States, 28 U.S.C. 1605A(a)(2)(ii); and (3) the claimant

must have afforded the foreign state a reasonable opportunity to arbitrate before

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bringing suit, 28 U.S.C. 1605A(a)(2)(iii). The district court was correct in finding

that none of these requirements was satisfied.

The district court was correct in its determination that no statutory exception

to the FSIA is applicable and that, therefore, our courts lack subject matter

jurisdiction over Plaintiffs’ claims. Accordingly, we affirm.

AFFIRMED.