16‐1227‐cv

Vera v. Republic of Cuba

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.

______________
2

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.
3

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
4

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
5

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.
6

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,
7

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.
8

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.
9

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.
10

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).
11

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
12

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.
13

(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
14

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
15

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
16

. . . 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.
17

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
18

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
19

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.
20

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
21

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.
22

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).
23

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.
24

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.