11th Circuit Upholds Dismissal Of One Libertad Act Cuba Lawsuit Against Cruise Lines. Significantly, One Justice Sends Message To U.S. Congress And Opens Door For Revising Law To Help Plaintiffs

JAVIER GARCIA-BENGOCHEA V. CARNIVAL CORPORATION D/B/A/ CARNIVAL CRUISE LINE, A FOREIGN CORPORATION [1:19-cv-21725 Southern Florida District; 20-12960 11th Circuit Court of Appeals]
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Creed & Gowdy (plaintiff- appellate)
Jones Walker (defendant)
Boies Schiller Flexner LLP (defendant)
Akerman (defendant)

JAVIER GARCIA-BENGOCHEA VS. ROYAL CARIBBEAN CRUISES, LTD. [1:19-cv-23592; Southern Florida District; 20-14251 11th Circuit Court of Appeals]
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Creed & Gowdy, P.A. (plaintiff)
Holland & Knight (defendant)

JAVIER GARCIA-BENGOCHEA V. NORWEGIAN CRUISE LINE HOLDINGS, LTD. [1:19-cv-23593; Southern Florida District]
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Creed & Gowdy, P.A. (plaintiff)
Hogan Lovells US LLP (defendant)

11/23/2022- Opinion issued by court as to Appellant Javier Garcia-Bengochea in 20-12960, 20-14251. Decision: Affirmed. Opinion type: Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions. [20-12960, 20-14251] [Entered: 11/23/2022 09:44 AM]

11/23/2022- Judgment entered as to Appellant Javier Garcia-Bengochea in 20-12960, 20-14251. [20-12960, 20-14251] [Entered: 11/23/2022 09:48 AM] 

LINK To Opinion (11/23/2)
LINK To Libertad Act Title III Lawsuit Statistics

Excerpts From Opinion And Concurring

When Fidel Castro overthrew Fulgencio Batista in 1959, most Cubans who fled to the United States hoped that they would one day return to their homeland. But many would never again see the beaches of Varadero or stroll along the Malecón. They built homes and lives in the United States, never forgetting what they left behind on an island just 90 miles off the coast of Key West. 

This appeal concerns a number of issues pertaining to claims brought under Title III. First, does the plaintiff, Dr. Javier Garcia- Bengochea, have Article III standing to assert his claims against Carnival and Royal Caribbean? Second, has Dr. Garcia-Bengochea stated plausible Title III claims? We heard oral argument on these matters, invited the Department of Justice to file an amicus curiae brief addressing certain questions about the Act, and permitted the parties to respond to that brief.  We conclude that Dr. Garcia-Bengochea has standing to assert his Title III claims, but that those claims fail on the merits. We therefore affirm the district court’s grant of judgment on the pleadings in favor of Carnival and Royal Caribbean. 

Carnival and Royal Caribbean argue that Dr. Garcia-Bengochea’s injury is not concrete because he was not affected in any way by their use of La Marítima. As Carnival puts it, Dr. Garcia- Bengochea would be “in precisely the same position he stands in now” had it never sailed to Cuba or used La Marítima.

The cruise lines also contend that there is no historical analogue for the Title III cause of action that Dr. Garcia-Bengochea is asserting, and that Congress’ judgment does not identify any real injury. We disagree on both points. 

We begin where we must—with the text. When the words of a statute are clear, “we must enforce it according to its terms.” King v. Burwell, 576 U.S. 473, 486 (2015). Though the Helms-Burton Act defines a number of terms, see § 6023 (setting out the meaning of 15 words and phrases), it does not define the word “acquire[ ].” So we turn to ordinary meaning. See Barton v. U.S. Att'y Gen., 904 F.3d 1294, 1298 (11th Cir. 2018) (“[U]nless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning.”) (internal quotation marks and citation omitted).

In our view, the district court came to the correct conclusion. We agree with the Fifth Circuit’s analysis in American Airlines: 

Dr. Garcia-Bengochea has Article III standing to assert his Title III claims against Carnival and Royal Caribbean under Title III of the Helms-Burton Act. But those claims fail under § 6082(a)(4)(B) of the Act because the Cuban government confiscated La Marítima prior to March 12, 1996, and because Dr. Garcia-Bengochea acquired his interest in the property through inheritance after that date. AFFIRMED. 

Concurring: Judge Adalberto Jordan (born in Havana, Republic of Cuba), Appointed In 2012 By Barack Obama, President Of The United States 

With respect to our decision today, I join Parts I and II of the court’s opinion. As to Part III, I concur in the judgment but do so reluctantly because our interpretation of 22 U.S.C. § 6082(a)(4)(B)—which I think is unavoidable given the language of § 6082(a)(4)(C)—undermines the express purposes of Title III of the Act and leaves many (and maybe most) U.S. nationals without a remedy for the trafficking of their confiscated properties. 

The word “acquires” has both broad and narrow meanings, and dictionaries do not tell us what meaning to use for Title III. So we have to rely on matters outside of the text to interpret the text. 

These codified purposes, it seems to me, call for a narrow interpretation of the word “acquires” that does not encompass interests in property obtained by inheritance. Such a reading benefits U.S. nationals whose property was confiscated by the Cuban government (furthering the compensatory purpose) and deters those who might later traffic in that property (furthering the deterrence purpose).

f the word “acquires” in § 6082(a)(4)(B) is read to encompass interests obtained by inheritance, then the provision operates contrary to Congress’ express statutory purposes and is very hard to explain. The Cuban government carried out most of its confiscations of property held by U.S. nationals and U.S. companies in the early 1960s, shortly after Fidel Castro came to power.

The individual U.S. owners of confiscated property—assuming they were at least 20, the voting age in Cuba at the time, see Constitution of the Republic of Cuba, Title VII, Art. 99 (1940)—would be in their 80s today, assuming they were still alive. What compensatory and/or deterrent effect would Title III have if the only thing potential traffickers had to do was wait until the original owners died to benefit from their confiscated properties? 

That does not make much (if any) sense. I can think of no rational basis for allowing heirs to sue if they inherited their interests in confiscated properties prior to the passage of the Helms-Burton Act, while at the same time precluding heirs who inherited their interests after enactment. 

(“There is no more likely way to misapprehend the meaning of language—be it in a constitution, a statute, a will, or a contract—than to read it literally, forgetting the object which the document as a whole is meant to secure.”); Stanley Fish, The Trouble with Principle 5 (1999) (explaining that, when a statute is “detached from the history that renders it intelligible,” it “becomes unreadable, or . . . readable in any direction you like”). 

Given what I have said in Part II.B, one might wonder why this is a concurrence and not a dissent. That is a fair question, and one I will try to answer. Legislation is not always pristine. And sometimes Congress, despite a very clear intent, drafts poorly. That is what I think happened here. At the end of the day, there is one reason why I ultimately conclude that § 6082(a)(4)(B) must be interpreted as written despite its incongruity with express legislative purpose. The reason is that § 6082(a)(4)(B) cannot be read in isolation and must be inter preted with reference to its statutory companion, § 6082(a)(4)(C). 

Interpreting § 6082(a)(4)(B) as the Fifth Circuit did (and as we do today) goes against the express purposes of Title III, but it is not absurd. While the reach of Title III is narrowed—and maybe significantly so—there is still a group of people whose heirs will be able to file suit under the Act—namely, the U.S. national heirs of owners who passed away and bequeathed their property interest prior to the passage of the Helms-Burton Act. 

I join Parts I and II of the court’s opinion and concur in the judgment as to Part III. If, as I suspect, the language of §6082(a)(4)(B) was the result of sloppy drafting, I urge Congress to fix it.