Reciprocity

• Author: International Law Group

Several Cuban nationals who had served in the U.S. armed forces during World War II and their surviving spouses brought an action in the U.S. Court of Federal Claims to obtain pension benefits under the Civil Service Retirement System from the U.S. Government. They had been regularly getting retirement annuity checks from the U.S. until a letter from the U.S. Treasury Department (USTD) arrived in 1963.

Part of the Cuban embargo program, it declared that the USDT had "determined that there is no reasonable assurance that a payee living in Cuba will actually receive United States Government checks or be able to negotiate them for full value. Therefore, since the United States Treasury Department Regulations now prohibit payments to persons residing in Cuba, Civil Service annuity payments are being suspended." The referenced regulations were the Cuban Asset Control Regulations at 31 C.F.R. Part 515 (1963).

The Reciprocity Act (the Act) [28 U.S.C. Section 2502(a); originally Act of July 27, 1868, Section 2, 15 Stat. 243.] generally limits the jurisdiction of the Court of Federal Claims over actions against the U.S. brought by aliens. It does, however, allow these suits to the extent that the alien's home country would let U.S. citizens bring similar suits against that government in the alien's home tribunals.

The current Act provides in part that: "Citizens or subjects of any foreign government which accords to citizens of the United States the right to prosecute claims against their government in its courts may sue the United States in the Court of Claims if the subject matter of the suit is otherwise within such court's jurisdiction." (In 1992, Congress updated the lower Court's title to "U.S. Court of Federal Claims.")

As evidence of reciprocity under the Act, plaintiffs submitted an affidavit of Jorge Cobask. He was a Cuban attorney who had represented U.S. citizens in actions against the Cuban government.

It put U.S. citizens on an equal footing with Cuban citizens in suing that government.

Supporting the defense side, the U.S. Department of State (DOS) issued a judicially requested opinion letter declaring that "any right of a U.S. citizen to pursue a claim against the Cuban government in Cuban courts is subject to the political interference of the Cuban government and, thus, there are serious impediments to the ability of a U.S. citizen to pursue effectively a lawsuit against the Cuban government."

Based solely on the DOS's opinion, the...