[DO NOT PUBLISH]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, PETROLEOS 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
1 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.
2 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
3 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.
Free access — add to your briefcase to read the full text and ask questions with AI
[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, PETROLEOS 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
1 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.
2 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
3 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
5 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.