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 
- 2 - 

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.
- 3 - 

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 
- 4 - 

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.
- 5 - 

§ 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 
- 6 - 

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. 
- 7 - 

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 
- 8 - 

"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 
- 9 - 

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.
- 10 - 

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," 
- 11 - 

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."
- 12 - 

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 
- 13 - 

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.