22 U.S.C. § 6082 — Liability for trafficking in confiscated

Page 1757 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 6082 (10) The United States Government has an obligation to its citizens to provide protection against wrongful confiscations by foreign na- tions and their citizens, including the provi- sion of private remedies. (11) To deter trafficking in wrongfully con- fiscated property, United States nationals who were the victims of these confiscations should be endowed with a judicial remedy in the courts of the United States that would deny traffickers any profits from economically ex- ploiting Castro’s wrongful seizures. (Pub. L. 104–114, title III, § 301, Mar. 12, 1996, 110 Stat. 814.) § 6082. Liability for trafficking in confiscated property claimed by United States nationals (a) Civil remedy (1) Liability for trafficking (A) Except as otherwise provided in this sec- tion, any person that, after the end of the 3- month period beginning on the effective date of this subchapter, traffics in property which was confiscated by the Cuban Government on or after January 1, 1959, shall be liable to any United States national who owns the claim to such property for money damages in an amount equal to the sum of— (i) the amount which is the greater of— (I) the amount, if any, certified to the claimant by the Foreign Claims Settle- ment Commission under the International Claims Settlement Act of 1949 [22 U.S.C. 1621 et seq.], plus interest; (II) the amount determined under sec- tion 6083(a)(2) of this title, plus interest; or (III) the fair market value of that prop- erty, calculated as being either the cur- rent value of the property, or the value of the property when confiscated plus inter- est, whichever is greater; and (ii) court costs and reasonable attorneys’ fees. (B) Interest under subparagraph (A)(i) shall be at the rate set forth in section 1961 of title 28, computed by the court from the date of confiscation of the property involved to the date on which the action is brought under this subsection. (2) Presumption in favor of the certified claims There shall be a presumption that the amount for which a person is liable under clause (i) of paragraph (1)(A) is the amount that is certified as described in subclause (I) of that clause. The presumption shall be rebut- table by clear and convincing evidence that the amount described in subclause (II) or (III) of that clause is the appropriate amount of li- ability under that clause. (3) Increased liability (A) Any person that traffics in confiscated property for which liability is incurred under paragraph (1) shall, if a United States national owns a claim with respect to that property which was certified by the Foreign Claims Set- tlement Commission under title V of the International Claims Settlement Act of 1949 [22 U.S.C. 1643 et seq.], be liable for damages computed in accordance with subparagraph (C). (B) If the claimant in an action under this subsection (other than a United States na- tional to whom subparagraph (A) applies) pro- vides, after the end of the 3-month period de- scribed in paragraph (1) notice to— (i) a person against whom the action is to be initiated, or (ii) a person who is to be joined as a de- fendant in the action, at least 30 days before initiating the action or joining such person as a defendant, as the case may be, and that person, after the end of the 30-day period beginning on the date the notice is provided, traffics in the confiscated prop- erty that is the subject of the action, then that person shall be liable to that claimant for damages computed in accordance with sub- paragraph (C). (C) Damages for which a person is liable under subparagraph (A) or subparagraph (B) are money damages in an amount equal to the sum of— (i) the amount determined under para- graph (1)(A)(ii), and (ii) 3 times the amount determined appli- cable under paragraph (1)(A)(i). (D) Notice to a person under subparagraph (B)— (i) shall be in writing; (ii) shall be posted by certified mail or per- sonally delivered to the person; and (iii) shall contain— (I) a statement of intention to com- mence the action under this section or to join the person as a defendant (as the case may be), together with the reasons there- for; (II) a demand that the unlawful traf- ficking in the claimant’s property cease immediately; and (III) a copy of the summary statement published under paragraph (8). (4) Applicability (A) Except as otherwise provided in this paragraph, actions may be brought under paragraph (1) with respect to property con- fiscated before, on, or after March 12, 1996. (B) In the case of property confiscated before March 12, 1996, a United States national may not bring an action under this section on a claim to the confiscated property unless such national acquires ownership of the claim be- fore March 12, 1996. (C) In the case of property confiscated on or after March 12, 1996, a United States national who, after the property is confiscated, ac- quires ownership of a claim to the property by assignment for value, may not bring an action on the claim under this section. (5) Treatment of certain actions (A) In the case of a United States national who was eligible to file a claim with the For- eign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 [22 U.S.C. 1643 et seq.] but did not so file the claim, that United States national Page 1758 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 6082 may not bring an action on that claim under this section. (B) In the case of any action brought under this section by a United States national whose underlying claim in the action was timely filed with the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 but was denied by the Commission, the court shall accept the findings of the Commission on the claim as conclusive in the action under this section. (C) A United States national, other than a United States national bringing an action under this section on a claim certified under title V of the International Claims Settlement Act of 1949, may not bring an action on a claim under this section before the end of the 2-year period beginning on March 12, 1996. (D) An interest in property for which a United States national has a claim certified under title V of the International Claims Set- tlement Act of 1949 may not be the subject of a claim in an action under this section by any other person. Any person bringing an action under this section whose claim has not been so certified shall have the burden of establishing for the court that the interest in property that is the subject of the claim is not the subject of a claim so certified. (6) Inapplicability of act of state doctrine No court of the United States shall decline, based upon the act of state doctrine, to make a determination on the merits in an action brought under paragraph (1) . (7) Licenses not required (A) Notwithstanding any other provision of law, an action under this section may be brought and may be settled, and a judgment rendered in such action may be enforced, with- out obtaining any license or other permission from any agency of the United States, except that this paragraph shall not apply to the exe- cution of a judgment against, or the settle- ment of actions involving, property blocked under the authorities of section 4305(b) of title 50, that were being exercised on July 1, 1977, as a result of a national emergency declared by the President before such date, and are being exercised on March 12, 1996. (B) Notwithstanding any other provision of law, and for purposes of this subchapter only, any claim against the Cuban Government shall not be deemed to be an interest in prop- erty the transfer of which to a United States national required before March 12, 1996, or re- quires after March 12, 1996, a license issued by, or the permission of, any agency of the United States. (8) Publication by Attorney General Not later than 60 days after March 12, 1996, the Attorney General shall prepare and pub- lish in the Federal Register a concise sum- mary of the provisions of this subchapter, in- cluding a statement of the liability under this subchapter of a person trafficking in con- fiscated property, and the remedies available to United States nationals under this sub- chapter. (b) Amount in controversy An action may be brought under this section by a United States national only where the amount in controversy exceeds the sum or value of $50,000, exclusive of interest, costs, and attor- neys’ fees. In calculating $50,000 for purposes of the preceding sentence, the applicable amount under subclause (I), (II), or (III) of subsection (a)(1)(A)(i) may not be tripled as provided in sub- section (a)(3). (c) Procedural requirements (1) In general Except as provided in this subchapter, the provisions of title 28 and the rules of the courts of the United States apply to actions under this section to the same extent as such provisions and rules apply to any other action brought under section 1331 of title 28. (2) Service of process In an action under this section, service of process on an agency or instrumentality of a foreign state in the conduct of a commercial activity, or against individuals acting under color of law, shall be made in accordance with section 1608 of title 28. (d) Enforceability of judgments against Cuban Government In an action brought under this section, any judgment against an agency or instrumentality of the Cuban Government shall not be enforce- able against an agency or instrumentality of ei- ther a transition government in Cuba or a demo- cratically elected government in Cuba. (e) Omitted (f) Election of remedies (1) Election Subject to paragraph (2)— (A) any United States national that brings an action under this section may not bring any other civil action or proceeding under the common law, Federal law, or the law of any of the several States, the District of Co- lumbia, or any commonwealth, territory, or possession of the United States, that seeks monetary or nonmonetary compensation by reason of the same subject matter; and (B) any person who brings, under the com- mon law or any provision of law other than this section, a civil action or proceeding for monetary or nonmonetary compensation arising out of a claim for which an action would otherwise be cognizable under this section may not bring an action under this section on that claim. (2) Treatment of certified claimants (A) In the case of any United States national that brings an action under this section based on a claim certified under title V of the Inter- national Claims Settlement Act of 1949 [22 U.S.C. 1643 et seq.]— (i) if the recovery in the action is equal to or greater than the amount of the certified claim, the United States national may not receive payment on the claim under any agreement entered into between the United States and Cuba settling claims covered by Page 1759 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 6083 such title, and such national shall be deemed to have discharged the United States from any further responsibility to represent the United States national with respect to that claim; (ii) if the recovery in the action is less than the amount of the certified claim, the United States national may receive payment under a claims agreement described in clause (i) but only to the extent of the dif- ference between the amount of the recovery and the amount of the certified claim; and (iii) if there is no recovery in the action, the United States national may receive pay- ment on the certified claim under a claims agreement described in clause (i) to the same extent as any certified claimant who does not bring an action under this section. (B) In the event some or all actions brought under this section are consolidated by judicial or other action in such manner as to create a pool of assets available to satisfy the claims in such actions, including a pool of assets in a proceeding in bankruptcy, every claimant whose claim in an action so consolidated was certified by the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 [22 U.S.C. 1643 et seq.] shall be entitled to payment in full of its claim from the assets in such pool before any payment is made from the assets in such pool with respect to any claim not so certified. (g) Deposit of excess payments by Cuba under claims agreement Any amounts paid by Cuba under any agree- ment entered into between the United States and Cuba settling certified claims under title V of the International Claims Settlement Act of 1949 [22 U.S.C. 1643 et seq.] that are in excess of the payments made on such certified claims after the application of subsection (f) shall be deposited into the United States Treasury. (h) Termination of rights (1) In general All rights created under this section to bring an action for money damages with respect to property confiscated by the Cuban Govern- ment— (A) may be suspended under section 6064(a) of this title; and (B) shall cease upon transmittal to the Congress of a determination of the President under section 6063(c)(3) of this title that a democratically elected government in Cuba is in power. (2) Pending suits The suspension or termination of rights under paragraph (1) shall not affect suits com- menced before the date of such suspension or termination (as the case may be), and in all such suits, proceedings shall be had, appeals taken, and judgments rendered in the same manner and with the same effect as if the sus- pension or termination had not occurred. (i) Imposition of filing fees The Judicial Conference of the United States shall establish a uniform fee that shall be im- posed upon the plaintiff or plaintiffs in each ac- tion brought under this section. The fee should be established at a level sufficient to recover the costs to the courts of actions brought under this section. The fee under this subsection is in addi- tion to any other fees imposed under title 28. (Pub. L. 104–114, title III, § 302, Mar. 12, 1996, 110 Stat. 815.) Editorial Notes REFERENCES IN TEXT For the effective date of this subchapter, referred to in subsec. (a)(1)(A), as Aug. 1, 1996, or date determined pursuant to suspension authority of President see sec- tion 6085 of this title. The International Claims Settlement Act of 1949, re- ferred to in subsecs. (a)(1)(A)(i)(I), (3)(A), (5), (f)(2), and (g), is act Mar. 10, 1950, ch. 54, 64 Stat. 12, which is clas- sified generally to chapter 21 (§ 1621 et seq.) of this title. Title V of the Act is classified generally to subchapter V (§ 1643 et seq.) of chapter 21 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1621 of this title and Tables. This subchapter, referred to in subsecs. (a)(7)(B), (8) and (c)(1), was in the original ‘‘this title’’, meaning title III of Pub. L. 104–114, Mar. 12, 1996, 110 Stat. 814, which enacted this subchapter and sections 1643l and 1643m of this title and amended section 1611 of Title 28, Judiciary and Judicial Procedure. For complete classi- fication of title III to the Code, see Tables. CODIFICATION Section is comprised of section 302 of Pub. L. 104–114. Subsec. (e) of section 302 of Pub. L. 104–114 amended section 1611 of Title 28, Judiciary and Judicial Proce- dure. § 6083. Proof of ownership of claims to con- fiscated property (a) Evidence of ownership (1) Conclusiveness of certified claims In any action brought under this subchapter, the court shall accept as conclusive proof of ownership of an interest in property a certifi- cation of a claim to ownership of that interest that has been made by the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 (22 U.S.C. 1643 and following). (2) Claims not certified If in an action under this subchapter a claim has not been so certified by the Foreign Claims Settlement Commission, the court may appoint a special master, including the Foreign Claims Settlement Commission, to make determinations regarding the amount and ownership of the claim. Such determina- tions are only for evidentiary purposes in civil actions brought under this subchapter and do not constitute certifications under title V of the International Claims Settlement Act of 1949. (3) Effect of determinations of foreign or inter- national entities In determining the amount or ownership of a claim in an action under this subchapter, the court shall not accept as conclusive evidence any findings, orders, judgments, or decrees from administrative agencies or courts of for- eign countries or international organizations that declare the value of or invalidate the