In this garnishment action, the district court permitted the plaintiffs to collect a portion of their judgments against the Republic of Cuba (the “Cuban Government”) and the Cuban Air Force by garnishing certain debts owed to a Cuban telecommunications company. Because we conclude that this company is an entity separate from the Cuban Government, we vacate the judgment of the district court and remand this case with instructions to dissolve the writs of garnishment.
I.
This case grows out of a decision by the Cuban Government, carried out by pilots of the Cuban Air Force, to shoot down two unarmed civilian airplanes over international waters on February 24,1996. Three citizens of the United States and one non-citizen were killed in the attack. On October 31, 1997, the personal representatives of the estates of the three citizens, plaintiffs herein, brought actions in the United States District Court for the Southern District of Florida seeking monetary damages from the Cuban Government and the Cuban Air Force. Although neither defendant entered an appearance, the district court conducted a trial in order to determine whether the plaintiffs had satisfactory evidence to support their claims. See 28 U.S.C. § 1608(e) (1994) (prohibiting default judgment against foreign sovereign unless plaintiff establishes claim “by evidence satisfactory to the court”).
On December 17, 1997, the district court entered judgment for the plaintiffs and awarded them compensatory damages of $49,927,911 against the Cuban Government and Cuban Air Force, as well as punitive damages of $137,700,000 against the Cuban Air Force alone.
In an effort to collect a portion of this judgment against the Cuban Government and the Cuban Air Force, the plaintiffs filed a motion pursuant to Fed.R.Civ.P. 69(a)
On February 4, 1999, the carrier garnishees filed a joint motion to dissolve the plaintiffs’ writs of garnishment pursuant to Fla. Stat. ch. 77.07(2) (1997).
These affidavits contained the following relevant information regarding the relationship among ETECSA, the Cuban Government, and the carriers. Prior to a transition period that began in August 1994, the telephone system in Cuba was operated by Empresa de Telecomunica-ciones de Cuba (“EMTELCUBA”), a wholly-owned alter ego of the Cuban Government’s Ministry of Communications.
All necessary transactions are hereby authorized incident to the execution and performance of the Operating Agreement [the carrier] has negotiated with Empresa de Telecomunicaciones de Cuba (“EMTELCUBA”) for the provision of telecommunications service between the United States and Cuba.
This license authorizes all necessary transactions in connection with the transfer to Cuba of funds representing Cuba’s share of compensation due for its portion of the jointly provided international telecommunications service....
Meanwhile, on June 28, 1994, ETECSA was incorporated as a mixed enterprise under the provisions of a 1982 Cuban law. ETECSA’s stock was held by the following entities at the time of trial: 51% by Telefo-nica Antillana, S.A. (a Cuban company); 6.68% by Banco Financiero Internacional, S.A. (a Cuban company); 1% by Banco Internacional de Comercia, S.A. (a Cuban company); 29.29% by STET International Netherlands N.V. (a Dutch subsidiary of the publicly-owned company Telecom Ita-lia S.p.A.); and 12.03% by Universal Trade and Management Corporation (a Panamanian company). The three Cuban companies, which together held 58.68% of ETECSA’s stock, are apparently owned or controlled by the Cuban Government.
One result of this exclusive concession was that, between January and April 1995, each of the carriers that had an Operating Agreement with EMTELCUBA signed a document entitled “Amendment to Transfer Rights and Obligations.” Each document, which EMTELCUBA and ETECSA also signed, stated that the signatories agreed to transfer all rights, obligations, and interests of EMTELCUBA under the Operating Agreements to ETECSA. They also agreed to release EMTELCUBA from any future rights, obligations, and interests under the Agreements. ETEC-
After reviewing this factual information and holding a hearing on February 16, 1999, the district court issued an opinion disposing of the motions to dissolve and the issues raised by the garnishment pleadings. See Alejandre v. Republic of Cuba,
II.
The central question that we must answer on appeal is whether ETECSA is an entity separate from the Cuban Government, and therefore not responsible for the Government’s debt to the plaintiffs. Our review of the district court’s decision to hold ETECSA responsible for this debt is guided both by the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602-11 (1994), and by principles of Florida garnishment law.
A.
1.
The FSIA is the exclusive source of subject matter jurisdiction over all civil actions against foreign states. See Argentine Republic v. Amerada Hess Shipping Corp.,
The exception upon which the plaintiffs relied below is 28 U.S.C. § 1610(a)(7) (West Supp.1999),
The property in the United States of a foreign state, ... used for a commercial activity in the United States, shall not be immune from attachment in aid of execution ... upon a judgment entered by a court of the United States ... [if] the judgment relates to a claim for which the foreign state is not immune under section 1606(a)(7), regardless of whether the property is or was involved with the act upon which the claim is based.
The last requirement of this exception is clearly met here, as the plaintiffs’ underlying judgment against the Cuban Government related to a claim from which the Government was not immune by virtue of section 1605(a)(7). Thus, assuming ar-guendo that the amounts owed to ETEC-SA are property in the United States used for a commercial activity therein,
According to Bancec, “[t]he language and history of the FSIA clearly establish that the Act was not intended to affect the substantive law determining the liability of a foreign state or instrumentality, or the attribution of liability among instrumentalities of a foreign state.” Id. at 620,
In Bancec, the Supreme Court highlighted two situations in which a plaintiff may overcome the presumption of separate juridical status enjoyed by an instrumentality. First, when a corporate entity is so extensively controlled by its owner that a relationship of principal and agent is created, the Court observed that one may be held liable for the actions of the other.
2.
These principles of foreign sovereign immunity provide much of the context necessary for our review of the district court’s decision. Given the procedural posture of this case, however, we must also be guided by relevant principles of Florida garnishment law. See Fed.R.Civ.P. 69(a); Buck Creek Indus., Inc. v. Alcan Constr., Inc.,
In their replies to the garnishees’ answers, the plaintiffs asserted that the amounts owed by the garnishees to ETECSA were subject to garnishment on the ground that any indebtedness owed to ETECSA constituted an indebtedness to the Cuban Government. We interpret this assertion as a claim that ETECSA is an alter ego of the Cuban Government. Under Florida law, when a plaintiff (judgment creditor) seeks to garnish a debt owed to an entity that was not a party to the underlying judgment on the ground that the entity is an alter ego of the judgment debtor, the plaintiff bears the burden of demonstrating the alter ego relationship. See Live Supply, Inc. v. C&S Plumbing, Inc.,
In order to determine whether the plaintiffs carried their burden in this case, we must assess their arguments from the perspective of the Cuban Government. Florida law provides that when a plaintiff holding a judgment serves a writ of garnishment upon a garnishee, the plaintiff steps into the shoes of the judgment debt- or and can assert only the rights that the judgment debtor could have asserted against the garnishee. See Hughes Supply, Inc. v. A.C. Elec. Corp.,
B.
1.
With these principles in mind, we consider the district court’s decision to hold ETECSA responsible for the Cuban Government’s debt to the plaintiffs. The court disregarded the presumptively separate juridical status of ETECSA by invoking the second situation mentioned in Bancec: that the corporate entity will not be regarded where to do so would work fraud or injustice or defeat overriding public policies. The court did not rely upon the fraud element of this rule, and indeed there appears to be no evidence in the record that would support a finding of fraud. For example, the plaintiffs made no showing that the apparent novation that transferred the rights and obligations of EMTELCUBA (an alter ego responsible for the debts of the Cuban Government, see supra note 7) under the Operating Agreements to ETECSA was entered into for the purpose of insulating payments made under those Agreements from garnishment by the Cuban Government’s creditors. Instead, the court rested its decision on concerns about injustice and public policy. The core of the court’s legal rationale was that failing to disregard ETECSA’s separate status
not only would prevent [the plaintiffs] from collecting their court-ordered final judgment for the victims of a grave violation of international law, but also would override the clear legislative policy against such terrorist attacks and in favor of broadening the property which may be executed [upon] to compensate for them.
Alejandre II,
Upon reviewing this rationale de novo, we conclude that it is not a sufficient basis for overcoming the presumption of separate juridical status that ETECSA enjoys. While the district court’s concern about the injustice of preventing plaintiffs from collecting their judgment is understandable,
With regard to the district court’s public policy concerns, we agree that recent enactments evince a congressional policy against terrorist attacks and in favor of making additional property of governments that sponsor terrorism (such as Cuba) available to compensate victims of such attacks. We disagree, however, with the district court’s conclusion that Congress — in section 1610(f)(1)(A) — took the further step of overriding the Bancec presumption of separate juridical status by making instrumentalities responsible for the debts of their related terrorist-sponsoring governments.
Notwithstanding any other provision of law, ... any property with respect to which financial transactions are prohibited or regulated pursuant to [certain statutes, including those authorizing the CACR,24 ] ... [or any] license issued pursuant thereto, shall be subject to execution or attachment in aid of execution of any judgment relating to a claim for which a foreign state (including any agency or instrumentality of such state) claiming such property is not immune under section 1605(a)(7).
The effect of this section is not to subject property claimed by the instrumentality ETECSA to execution in order to satisfy the plaintiffs’ judgment against the Cuban Government, but to allow the plaintiffs to execute upon property claimed by the Government itself in order to satisfy their judgment (which relates to a claim from which the Government was not immune by virtue of section 1605(a)(7)) without first obtaining a license under the CACR. See 31 C.F.R. § 515.203(e). Congress has previously demonstrated in the FSIA context that it knows how to express clearly an intent to make instrumentalities substantively liable for the debts of their related foreign governments.
2.
Having concluded that the district court erroneously disregarded ETECSA’s separate juridical status on the ground that the second situation mentioned in Bancec applied, we turn to the question of whether the plaintiffs may instead overcome ETECSA’s separate status under the first Bancec situation — that is, whether the plaintiffs carried their burden under Florida law of proving the alter ego relationship between the Cuban Government and ETECSA. After considering the affidavits submitted by the parties, the district court held that the plaintiffs had not carried their burden. See Alejandre II,
Suppose, for example, that the Cuban Government sued AT&T Corp. on the ground that AT&T had failed to pay it (through EMTELCUBA, its alter ego) certain sums that allegedly became due under the Operating Agreement in 1996. AT&T surely would defend on the ground that while it would have owed such sums to the Government had they become due in 1994, the Government no longer had any right to the sums because ETECSA succeeded to EMTELCUBA’s rights and obligations under the Operating Agreement in early 1995. In order to prevail, then, the Government would have the burden of convincing the court to swallow the argument that the substitution of ETECSA for EM-TELCUBA under the Agreement had been a purposeless and ineffectual act by which the Government merely changed its name to “ETECSA” while remaining the real party in interest. The plaintiffs face exactly the same burden in this case, and we find that this argument is too difficult to digest.
Nevertheless, the plaintiffs contend that' we must conclude, as a matter of law, that ETECSA is an alter ego of the Cuban Government because ETECSA receives payments from the carriers under the OFAC licenses.
We reject this argument for two reasons. First, while the term “Cuba” is not specifically defined in the statute, the CACR define it to include “any political subdivision, agency, or instrumentality thereof.” 31 C.F.R. § 515.301 (1998) (defining “foreign country”); see also 31 C.F.R. § 515.201(d) (1998) (stating that the term “designated foreign country” means Cuba). Thus, the garnishees’ payments to “Cuba” under the licenses could be lawfully made to the separate instrumentality ETECSA rather than to the Cuban Government itself. In addition, we note that the licenses issued to all of the carriers authorize more than merely payments to “Cuba”; they also authorize all necessary transactions incident to the performance of the Operating Agreements that the carriers negotiated with EMTELCUBA.
C.
Finally, the plaintiffs contend on appeal that even if we reject their legal arguments that ETECSA is not a juridical entity separate from the Cuban Government, we must remand this case for discovery regarding the actual relationship between ETECSA and the Government. The plaintiffs argue that such discovery, which they never had an opportunity to seek below, is necessary if they must attempt to prove an alter ego relationship between ETECSA and the Government. We recognize that courts of appeals have not been hesitant to remand for further factual inquiry in an FSIA case after clarifying the legal standards that govern the case. See, e.g., Walter Fuller Aircraft Sales, Inc. v. Republic of the Philippines,
On February 12, 1999, only four days before the district court was scheduled to hold a hearing on the carriers’ motion to dissolve the writs of garnishment, the plaintiffs filed a motion to postpone the hearing for nine weeks and to set an expedited schedule for discovery regarding the issues raised by the writs. The carriers opposed this motion on the ground that a nine-week delay in payment of funds to ETECSA could lead to disruption of telecommunications services between the
We agree with the district court’s conclusion that the plaintiffs withdrew their motion for discovery. Therefore, the plaintiffs have waived any right to discovery on remand.
III.
For the foregoing reasons, we VACATE the judgment of the district court and REMAND this case with instructions to dissolve the plaintiffs’ writs of garnishment insofar as they seek to garnish amounts owed to ETECSA.
IT IS SO ORDERED.
Notes
. The family and estate of each citizen were awarded one-third of the damages. Originally, the district court did not award punitive damages against the Cuban Government because 28 U.S.C. § 1606 (1994) provided that a foreign state could not be liable for such damages. Section 1606 was later amended to allow punitive damages against a foreign state in a suit from which the state was not immune under 28 U.S.C. § 1605(a)(7) (Supp. II 1996); this amendment applied to causes of action arising before, on, or after October 21, 1998. See Pub.L. No. 105-277, § 101(h) [Title I, § 117], 112 Slat. 2681, 2681-491 (1998). The President promptly acted to waive the "requirements” of the statutory section that contained this amendment. See Pres. Deter
On November 5, 1998, nearly eleven months after the district court entered final judgment, the plaintiffs moved the court to amend the judgment in order to make the Cuban Government jointly liable for the punitive damages awarded against the Air Force. The district court entered an order granting the motion the same day. The President's purported waiver aside, we question whether the district court had jurisdiction to enter this order. Because we resolve the entirety of this appeal on other grounds, however, we need not pass upon the district court's decision to augment the plaintiffs’ damages against the Cuban Government.
.Rule 69(a) provides:
Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable.
. This vague reference to "agencies, entities, or instrumentalities” was made a part of the language of the writs issued by the clerk after the district court granted the plaintiffs' motion. For a discussion of the procedural due process concerns that this addition raises, see note 21, infra.
. Garnishees Citigroup Inc. and Global One Communications, L.L.C., failed to answer the writs. The district court entered a default judgment garnishing any amounts owed ETECSA in their possession or control.
Of the garnishees that did answer the writs, AT&T Corp. also identified debts owed to Cuban entities other than ETECSA. The Chase Manhattan Corporation’s answer did not mention ETECSA by name, but it did identify numerous accounts in which the Cuban Government, the Cuban Air Force, or other Cuban entities had or may have had an interest. The district court judgment presently on appeal, however, addressed only debts owed to ETECSA. Thus, we do not consider the debts owed to other Cuban entities by AT&T and Chase Manhattan.
. Although the plaintiffs did not raise the issue below, it could be argued that the carrier garnishees lacked standing to bring their motion to dissolve the writs. "The statutory right to move to dissolve [a writ of garnishment under Fla. Stat. ch. 77.07(2) ] is granted only to the defendant [ — i.e., the judgment debtor — ] and any other person having an ownership interest in the property, as disclosed by the garnishee’s answer." Navon, Kopelman & O’Donnell, P.A. v. Synnex Info. Techs., Inc.,
. Under Florida law, the garnishment pleadings — i.e., the plaintiffs’ motion for the writs, the garnishees' answers, and the plaintiffs’ replies — frame the issues for trial. See 13 Florida Jur.2d§ 151 (1998).
. In order to facilitate our analysis of this case, we assume arguendo that EMTELCUBA is not a juridical entity separate from the Cuban Government's Ministry of Communications. See infra part II.A (explaining separate juridical status inquiry under the Foreign Sovereign Immunities Act ("FSIA") and Florida garnishment law). The present record provides strong support for this characterization. Instead of being formed under preexisting Cuban law (as ETECSA later was), EMTELCUBA was simply created by a resolution of the Ministry of Communications on December 23, 1976. While this resolution stated that EMTELCUBA was to be a company "with its own juridical personality,” the Supreme Court has recognized that such a characterization is not to be given conclusive effect. See First Nat’l City Bank v. Banco Para El Comercio Exterior de Cuba,
. See Alejandre v. Republic of Cuba,
.The licenses issued to TLD and AT&T of Puerto Rico contained language identical to that previously quoted in text, except that the reference to "(‘EMTELCUBA’)” was omitted. Thus, the name of the Cuban party in the first quoted paragraph simply read "Empresa de Telecomunicaciones de Cuba”; no "S.A.” designation was added. While this name could be viewed as a reference to either ETECSA or EMTELCUBA, we think that the omission of the term EMTELCUBA indicates that the license was meant to authorize transactions incident to these carriers' agreements with ETECSA.
. Because we conclude that ETECSA is an entity separate from the Cuban Government that may not be held responsible for the Government’s debt to the plaintiffs, we do not reach the issue of whether the President waived section 1610(f)(1)(A). We express no opinion regarding the district court's holding on this issue.
. Unless otherwise indicated, all subsequent section references are to the 1994 edition of volume 28, United States Code.
. See H.R.Rep. No. 94-1487, at 28 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6627.
. We note that there are two reasons — neither of which has been raised on appeal — to question whether ETECSA's property is in fact immune from garnishment. First, there is a circuit split (which the district court did not address) on the issue of whether a company that is majority-owned by another company that is in turn owned or controlled by a foreign state can be described as a company “a majority of whose shares ... is owned by a foreign state or political subdivision thereof' in order to meet the requirement for instrumentality status under section 1603(b)(2). Compare In re Air Crash Disaster Near Rose-lawn, Ind.,
We need not resolve these questions, however, because ETECSA's immunity or lack thereof does not ultimately alter our analysis. Under the circumstances of this case, as we explain in greater detail below, we conduct exactly the same inquiry in order to determine both whether an exception to the Cuban Government's immunity from garnishment also applies to ETECSA and whether ETECSA can be held substantively liable for the Government's debt to the plaintiffs: namely, whether the plaintiffs have overcome the presumption that ETECSA is a juridical entity separate from the Government. Thus, even if we concluded that ETECSA's property was not immune for one of the reasons discussed in the previous paragraph, we would still have to conduct this inquiry in order to determine ETECSA's liability.
. See Alejandre II,
. The district court held that the amounts owed ETECSA were both within - the United States and used for a commercial activity therein. See Alejandre II,
. See also Walter Fuller Aircraft Sales, Inc. v. Republic of the Philippines,
. See also Foremost-McKesson, Inc. v. Islamic Republic of Iran,
In addition, we note that applying this presumption of separate juridical status to instru-mentalities at the immunity stage is consistent with the logic of section 1610(a)(7). Unless ETECSA and the Cuban Government are shown to be the same entity, it would make little sense to read section 1610(a)(7) as providing that the U.S. commercial property of ETECSA is not immune from garnishment to satisfy a judgment relating to a claim from which the Cuban Government was not immune under section 1605(a)(7).
.The principal/agent terminology used by the Court could be read to suggest only that an owner who exercises sufficient control over his corporate agent may be held liable for the agent's actions. As we discuss below, however, liability can also flow in the other direction. See infra part II.A.2. For example, the corporate agent may be held responsible for its owner’s debts to third parties upon a showing that the owner’s exercise of control constitutes an abuse of the corporate form sufficient to deprive the agent of its independent juridical identity. See Letelier,
. While "the presumption of independent status is not to be lightly overcome,” Here aire,
. In Bonner v. City of Prichard,
. Live Supply requires the plaintiff to make an initial showing regarding the alter ego relationship at an evidentiaty hearing on his motion for a writ of garnishment. This requirement is rooted in the procedural due process concerns associated with prejudgment garnishments. See id. Although we do not decide this case based upon whether the plaintiffs successfully showed — at an eviden-tiary hearing prior to the issuance of the writs — that ETECSA was an alter ego of the Cuban Government, it seems that they did not do so.
In Live Supply, the trial court issued writs of garnishment ex parte based upon the plaintiff's representation in its unsworn motion that an alter ego relationship existed between the judgment debtor and another entity named in the motion; no evidentiary hearing was held regarding this representation. On appeal, the Live Supply court said that all the entity need do to obtain dissolution of the writs was "to alert the court by motion of the impropriety of the writ because of the independent identity of the entity.” Id.; see also ABC Sewer Cleaning Co. v. Foxco, Inc., Civ. A. No. 90-1934,
. We note, however, that the injustice identified by the district court is not the type of injustice that concerned the Bancec Court. See Bancec,
.In evaluating this conclusion, it is important to keep in mind that the Bancec presumption of separate juridical status applies for purposes of determining both whether an instrumentality can be held responsible for the debts of its related foreign government and whether the instrumentality retains its immunity from execution. See supra part II. A.l. Thus, even if we agreed with the district court’s conclusion that section 1610(f)(1)(A) makes ETECSA liable for the Cuban Government’s debt to the plaintiffs, we would also have to conclude that it deprives ETECSA of its immunity from execution in order to allow the plaintiffs to garnish amounts owed ETEC-SA. It is unclear whether section 1610(f)(1)(A) could be viewed as having this effect. On the one hand, the difference between the operative language of section 1610(a)(7) (property "shall not be immune from” execution) and section 1610(f)(1)(A) (property "shall be subject to” execution) suggests that these two provisions work together: the former provision renders a foreign state’s U.S. commercial assets non-immune from garnishment to satisfy a judgment relating to a claim from which that slate was not immune under section 1605(a)(7); the latter then removes the CACR license requirement for a plaintiff who seeks to garnish non-immune assets to satisfy a judgment that relates to such a claim. Under this interpretation, section 1610(f)(1)(A) does not have any effect upon the immunity of the state. On the other hand, the statement in section 1610(f)(1)(A) that certain state assets shall be subject to execution "[notwithstanding any other provision of law” could be read as both an exception to the state’s immunity from execution and an exception to the CACR license requirement. Both interpretations seem plausible, but it is not necessary for us to choose between them here.
. For a discussion of changes in the statutory provisions authorizing the CACR, see Regan v. Wald,
. In 1988, a bill was introduced in the House of Representatives that would have amended 28 U.S.C. § 1610(a) to deprive a
. The reference in this section to "a foreign state (including any agency or instrumentality of such state) claiming such property” merely indicates that the regulated property claimed by an agency or instrumentality of state X is subject to execution upon a judgment relating to a claim from which that agency or instrumentality was not immune under section 1605(a)(7). In our view, this reference cannot plausibly be interpreted to mean that regulated property claimed by an instrumentality of state X — and thus not by the government of state X or some other instrumentality thereof — is subject to execution upon a judgment relating to a claim from which the government of state X (or its other instrumentality) was not immune under section 1605(a)(7).
. The plaintiffs made a similar argument to the district court. The district court rejected it. See Alejandre II,
. The plaintiffs also note that the President has consistently reported to Congress, on a semi-annual basis, that the payments made by the carriers under the OFAC licenses are made to the “Government of Cuba.” See, e.g., 144 Cong. Rec. HI 0343-02 (daily ed. Oct. 9, 1998). While such reports are required by the statute that authorized the issuance of the licenses, see 22 U.S.C.A. § 6004(e)(6) (West Supp.1999), there is no evidence that they have any legal effect at all, much less the effect of prohibiting payment to an entity (such as ETECSA) that is not mentioned in the reports but is authorized to receive payment under the terms of the licenses themselves.
. As discussed in note 9, supra, the licenses issued to TLD and AT&T of Puerto Rico authorize transactions incident to those carriers’ agreements with ETECSA itself.
. In a subsequent order, the court formally denied as moot the plaintiffs’ motion to postpone the hearing and set an expedited discovery schedule.