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Sullivan v. Republic of Cuba

United States Court of Appeals, First Circuit

May 22, 2018

SHERRY SULLIVAN, Plaintiff, Appellant,
REPUBLIC OF CUBA, Defendant, Appellee.


          David J. Van Dyke and Lynch & Van Dyke, P.A. on brief for appellant.

          Before Howard, Chief Judge, Lynch and Kayatta, Circuit Judges.

          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.


         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.

         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 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. § 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 that -- in her view -- proved her father was imprisoned in Cuba into the ...

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