Sovereign Immunity

• Pages: 21-22

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international law update Volume 23, January–March 2017

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(2010)). Without any compelling justif‌ication for

developing a new personal-jurisdiction doctrine,

the Court declined to send courts and litigants

on that journey. Finally, the Court disagreed that

applying the usual personal-jurisdiction doctrine in

Fifth Amendment cases will, as the Livnats, Safras,

and amici suggest, threaten extraterritorial law

enforcement. *56

e appellants did not argue that the

Palestinian Authority may be “fairly regarded as at

home” in the United States, and for good reason.

Its headquarters, of‌f‌icials, and primary activities are

all in the West Bank. e Palestinian Authority is

therefore not subject to general jurisdiction in the

United States. e appellants failed in their burden

to show specif‌ic personal jurisdiction. Finally, the

appellants argued in the alternative that the district

court should have permitted jurisdictional discovery.

e district court did not abuse its discretion here,

because the additional discovery requested by the

appellants would not change the court’s analysis.

e appellate court therefore af‌f‌irmed both the

district court’s denial of the Livnats’ and Safras’

motions for jurisdictional discovery and its grant of

the Palestinian Authority’s motions to dismiss for

lack of personal jurisdiction. *58

citation: Livnat v. Palestinian Authority, 851 F.

3d 45—Court of Appeals, Dist. of Columbia Circuit

2017.

SOVEREIGN IMMUNITY

Second Circuit reverses district

court’s order citing lack of subject

matter jurisdiction to enter judgment

against Cuba under the FSIA, quashes

information subpoena served on bank

Aldo Vera, Jr. (“Vera”) f‌iled a case because of the

extra judicial killing of his father in 1976 in Cuba.

Cuba was declared as a state sponsoring terrorism

in 1982. In 2008, Vera obtained a default judgment

against Cuba in Florida State Court by relying on

the “terrorism exception” to sovereign immunity, 28

U.S.C. § 1605A(a)(1). Vera then obtained a default

judgment in United States District Court for the

Southern District of New York which granted

full faith and credit to the Florida Judgment.

Vera, thereafter, served information subpoenas on

the New York branches of various foreign banks

including Banco Bilbao Vizcaya Argentaria, S.A.

(“BBVA”). BBVA refused to comply with the

subpoena’s request for information pertaining to

Cuban assets located outside the United States.

BBVA moved to quash this subpoena contending

that the United States District Court was not having

subject matter jurisdiction under the Foreign

Sovereign Immunities Act, 1976 (the “FSIA”), as

amended, 28 U.S.C. §§ 1602 et seq. District Court

rejected the jurisdictional challenge and ordered

complete disclosure. BBVA appealed against the

order of District Court in the Second Circuit.

e U.S. Court of Appeals for the Second

Circuit reverses the decision and remands the case

back to the District Court with the observation

that it lacked subject matter jurisdiction over Vera’s

action against Cuba. e FSIA’s terrorism exception

to sovereign immunity—the only potential basis

for subject matter jurisdiction in this case—did not

apply. Cuba was immune from Vera’s action.

Two principles of federal jurisdiction guided

Second Circuit’s 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, 102 S.Ct.

2099, 72 L.Ed.2d 492 (1982). Federal courts

may not proceed at all in any case without it. See

Sinochem, 549 U.S. at 430-31, 127 S.Ct. 1184.

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, 108 S.Ct. 2268, 101 L.Ed.2d 69

(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, 108 S.Ct.

2268.” (Page 316)