§ 6082. — Liability for trafficking in confiscated property claimed by United States nationals.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 22USC6082]
TITLE 22--FOREIGN RELATIONS AND INTERCOURSE
CHAPTER 69A--CUBAN LIBERTY AND DEMOCRATIC SOLIDARITY (LIBERTAD)
SUBCHAPTER III--PROTECTION OF PROPERTY RIGHTS OF UNITED STATES NATIONALS
Sec. 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 section, 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 Settlement Commission under the International
Claims Settlement Act of 1949 [22 U.S.C. 1621 et seq.], plus
interest;
(II) the amount determined under section 6083(a)(2) of
this title, plus interest; or
(III) the fair market value of that property, calculated
as being either the current value of the property, or the
value of the property when confiscated plus interest,
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 rebuttable by clear and convincing evidence
that the amount described in subclause (II) or (III) of that clause
is the appropriate amount of liability 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 Settlement 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 national to whom subparagraph (A) applies)
provides, after the end of the 3-month period described 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 defendant 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 property that is the subject of the
action, then that person shall be liable to that claimant for
damages computed in accordance with subparagraph (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 paragraph (1)(A)(ii), and
(ii) 3 times the amount determined applicable 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 personally
delivered to the person; and
(iii) shall contain--
(I) a statement of intention to commence the action
under this section or to join the person as a defendant (as
the case may be), together with the reasons therefor;
(II) a demand that the unlawful trafficking 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 confiscated
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 before 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, acquires 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 Foreign 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 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
Settlement 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, without obtaining any
license or other permission from any agency of the United States,
except that this paragraph shall not apply to the execution of a
judgment against, or the settlement of actions involving, property
blocked under the authorities of section 5(b) of title 50, Appendix,
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 property the transfer of
which to a United States national required before March 12, 1996, or
requires 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 publish in the Federal Register a concise
summary of the provisions of this subchapter, including a statement
of the liability under this subchapter of a person trafficking in
confiscated property, and the remedies available to United States
nationals under this subchapter.
(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 attorneys' 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) of this section may not be tripled as provided in
subsection (a)(3) of this section.
(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
enforceable against an agency or instrumentality of either a transition
government in Cuba or a democratically 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 Columbia, 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 common 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 International 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 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 difference 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 payment 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 agreement 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) of this section 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
Government--
(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 commenced 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 suspension 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 imposed upon the plaintiff or plaintiffs in
each action 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 addition to any
other fees imposed under title 28.
(Pub. L. 104-114, title III, Sec. 302, Mar. 12, 1996, 110 Stat. 815.)
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 section 6085 of this title.
The International Claims Settlement Act of 1949, referred 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, as amended, which is classified generally to
chapter 21 (Sec. 1621 et seq.) of this title. Title V of the Act is
classified generally to subchapter V (Sec. 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 classification 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 Procedure.
Section Referred to in Other Sections
This section is referred to in sections 1643l, 6064, 6084 of this
title.
