The
United States of America’s State Department
issued an official report on the country conditions in the Philippines in 2016
which states in part: “President Rodrigo Roa Duterte, elected in May, began the
first year of his constitutionally limited six-year term on June 30…. Since
July police and unknown vigilantes have killed more than 6,000 suspected drug
dealers and users as the government pursued a policy aimed at eliminating
illegal drug activity in the country by the end of the year. Extrajudicial
killings have been the chief human rights concern in the country for many years
and they increased sharply over the past year.
https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper
There is at least one mother
in Hawaii whose son, who was suspected of being a drug user, was reportedly the
victim of an extrajudicial killing in Ilocos Norte, Philippines after President
Duterte came to power. Can the mother sue the Republic of the Philippines for
the extrajudicial killing of her son and recover damages?
The following case, decided
yesterday, August 14, 2017, by the U.S. Court of Appeals for the Second
Circuit, will help her answer the question. Vera v. Republic of Cuba, No.
16-1227, 08/14/2017.http://www.ca2.uscourts.gov/decisions/isysquery/2f53f9cc-b029-462b-9193-71e3c202cc47/1/doc/16-1227_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2f53f9cc-b029-462b-9193-71e3c202cc47/1/hilite/
Aldo Vera, Jr. sued in a
Florida state court the Republic of Cuba for the extrajudicial killing of his
father, the former police chief in Havana, in San Juan, Puerto Rico, on October
25, 1976. Vera, Sr. had fled Cuba in the
1960s and engaged in counterrevolutionary activities in Puerto Rico and Florida. Mr. Vera Jr. alleged
that agents acting on orders of the Cuban government executed Vera’s father.
Mr. Vera Jr. obtained a
default judgment for US$95 million against Cuba which did not appear in the
action. Although foreign states are generally immune from the jurisdiction of
the United States under the Foreign Sovereign Immunities Act of 1976 (FSIA), 28
USC §§ 1602 et seq., the Florida court held that Cuba was subject to suit under
a statutory exception to immunity in 28 USC § 1605(a)(7), known as the
“terrorism exception”. The exception authorizes suits against foreign states
that sponsor certain acts of terrorism, such as extrajudicial killings and
torture. 28 USC § 1605A(a)(1).
The Florida court found that
Cuba ordered the extrajudicial killing of Vera’s father 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.
Mr. Vera then 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 USC § 1738. Cuba failed to appear
in the federal action and the District Court entered a default judgment against
it for approximately US$45 million.
Mr. Vera served information
subpoenas on the New York branches of certain foreign banks, including BBVA.
The bank refused to comply with the subpoenas’ request for information
regarding Cuban assets and moved to quash the subpoena. It argued that Vera’s
default judgment against Cuba was void for lack of subject matter jurisdiction
under the FSIA and that the District Court lacked personal jurisdiction over
BBVA. The District Court rejected BBVA’s challenge and ordered it to provide
full and complete answers to Mr. Vera’s request for information on Cuban assets
located in BBVA’s branches in and outside the United States. The court held
BBVA in contempt when it refused to comply. BBVA appealed.
28 USC § 1604 bars state and
federal courts from exercising jurisdiction when a foreign state is entitled to
immunity. 28 USC § 1330 confers jurisdiction
on federal district courts only if one of the exceptions to immunity applies.
28 U.S.C. § 1605A 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.”
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).
The Court of Appeals held
that the District Court lacked subject matter jurisdiction over Mr. Vera’s
action against Cuba because Cuba was not designated a state sponsor of
terrorism at the time Vera’s father was killed in 1976, and Mr. Vera failed to
establish that Cuba was later designated in 1982 as 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. Therefore, Cuba was immune from
Vera’s federal action and the District Court had no jurisdiction to enter
judgment against Cuba and to enforce the subpoenas.
(Atty. Tipon has a Master of Laws degree from Yale Law School where he
specialized in Constitutional Law. He has also a Bachelor of Laws degree from
the University of the Philippines. He placed third in the Philippine Bar
Examination in 1956. His current practice focuses on immigration law and
criminal defense. He writes law books for the world’s largest law book
publishing company and writes legal articles for newspapers. He has a radio
show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki &
Tipon law firm, where they discuss legal and political issues. Office: American
Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A.
96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website:
www.bileckilawgroup.com. He was born in Laoag City, and lived during the war in
Magsingal, Ilocos Sur, Philippines. He served as a U.S. Immigration Officer. He
is co-author with former Judge Artemio S. Tipon of the best-seller “Winning by
Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st
ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty.
Tipon has personally experienced the entire immigration cycle by entering the
United States on a non-immigrant working visa to write law books, adjusting his
status to that of a lawful permanent resident, and becoming a naturalized
United States citizen.)
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