JAVIER GARCIA-BENGOCHEA, Plaintiff-Appellant, versus CARNIVAL CORPORATION, a foreign corporation d.b.a. Carnival Cruise Lines, Defendant-Appellee.
No. 20-12960
United States Court of Appeals For the
January 10, 2023
Appeal from the United States District Court for the Southern
JAVIER GARCIA-BENGOCHEA, Plaintiff-Appellant, versus ROYAL CARIBBEAN CRUISES, LTD., Defendant-Appellee.
No. 20-14251
United States Court of Appeals For the Eleventh Circuit
January 10, 2023
Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:19-cv-23592-JLK
Before JORDAN and NEWSOM, Circuit Judges, and BURKE,* District Judge.
* The Honorable Liles Burke, U.S. District Judge for the Northern District of Alabama, sitting by designation.
PER CURIAM:
We grant the petition for panel rehearing, vacate our prior opinion and Judge Jordan’s concurrence, reported at __ F. 4th __, 2022 WL 17170885 (11th Cir. Nov. 23, 2022), and substitute the following in their place. The only changes to the prior opinion and the concurrence consist of statutory citations and references to the Helms-Burton Act.
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.
In 1996, Congress enacted the
Title III remained dormant for 23 years, and through three different administrations, because the right to bring an action under Title III was suspended by Presidential decree. See
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.
I
We begin with an overview of Title III of the Helms-Burton Act and then pivot to the allegations in Dr. Garcia-Bengochea’s complaints. Given that this case was resolved at the pleading stage, we accept those allegations as true and draw reasonable inferences in Dr. Garcia-Bengochea’s favor. See Glynn Env’t Coal., Inc. v. Sea Island Acquisition, LLC, 26 F.4th 1235, 1240 (11th Cir. 2022).
A
In response to the takings of American property in Cuba by the Castro regime, Congress amended the
In 1996, Congress passed the Helms-Burton Act in part “to protect United States nationals against confiscatory takings and the wrongful trafficking in property confiscated by the Castro regime.”
Specifically, Title III provides “United States nationals who were the victims of th[o]se confiscations . . . with a judicial remedy in the courts of the United States.”
A person “traffics” in confiscated property if that person knowingly and intentionally:
(i) sells, transfers, distributes, dispenses, brokers, manages, or otherwise disposes of confiscated property, or purchases, leases, receives, possesses, obtains control of, manages, uses, or otherwise acquires or holds an interest in confiscated property,
(ii) engages in a commercial activity using or otherwise benefiting from confiscated property, or
(iii) causes, directs, participates in, or profits from, trafficking (as described in clause (i) or (ii)) by another person, or otherwise engages in trafficking (as described in clause (i) or (ii)) through another person,
without the authorization of any United States national who holds a claim to the property.
B
Dr. Garcia-Bengochea is a U.S. citizen and a U.S. national as that term is defined in
The Cuban government nationalized, expropriated, and seized ownership of La Marítima on October 13, 1960, via Cuba’s Gazette Law 890, and maintains possession of the property today. It has not paid any compensation to Dr. Garcia-Bengochea or anyone else for its seizure or use and the claim to the property has not been resolved pursuant to an international claims settlement or other settlement procedure. Dr. Garcia-Bengochea has never abandoned his legitimate interest in the property. See CC D.E. 1 at ¶¶ 7–9; RC D.E. 1 at ¶¶ 8–10.
The Foreign Claims Settlement Commission—pursuant to the International Claims Settlement Act—certified a portion of Dr. Garcia-Bengochea’s ownership interest in La Marítima when it adjudicated the claim of his cousin, Albert Parreño. This portion represents Dr. Garcia-Bengochea’s 32.5% interest in the property, and was valued by the Commission in 1970 at $289,549.92. See CC D.E. 1-1 at 6. The remaining portion of Dr. Garcia-Bengochea’s interest in the proрerty is based upon an uncertified claim. See CC D.E. 1
Starting in May of 2016, Carnival knowingly and intentionally conducted its commercial cruise line business to Cuba using La Marítima by regularly embarking and disembarking its passengers there. In the summer of 2018, Royal Caribbean began doing the
same. Both cruise lines have used the property without the authorization of Dr. Garcia-Bengochea or any other U.S. national who holds a claim to it. And both cruise lines have profited from the Cuban government’s possession of La Marítima, again without the authorization of or payment to Dr. Garcia-Bengochea (or any other U.S. national who holds a claim to the property). See CC D.E. 1 at ¶¶ 12–13; RC D.E. 1 at ¶¶ 13–14.
According to the complaints, the knowing and intentional conduct of Carnival and Royal Caribbean constitutes trafficking under
II
Carnival and Royal Caribbean argue for the first time on appeal that Dr. Garcia-Bengochea does not have Article III standing to assert his Title III claim. Despite the late assertion, we are required to address standing because it affects subject-matter jurisdiction, see Florida Ass‘n of Med. Equip. Dealers v. Apfel, 194 F.3d 1227, 1230 (11th Cir.1999), and we do so below. Our analysis is plenary. See Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 923 (11th Cir. 2020) (en banc).
To have Article III standing, a plaintiff must have suffered an injury in fact that can be fairly traced to the defendant’s conduct and that can be redressed with a favorable decision. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). As this case is at the pleading stage, Dr. Bengochea has to allege sufficient facts to plausibly state these three elements. See Thole v. U.S. Bank N.A., 140 S.Ct. 1615, 1621 (2020); Glynn Env’t Coal., 26 F.4th at 1240.
We must not, however, “confus[e] weakness on the merits with absence of Article III standing.” Ariz. State Legislature v. Ariz. Ind. Redistricting Comm’n, 576 U.S. 787, 800 (2015) (citation omitted). Indeed, we “must . . . assume that on the merits [Dr. Garcia-Bengochea] would be successful in [his Title III] claim[s.]” Culverhouse v. Paulson & Co. Inc., 813 F.3d 991, 994 (11th Cir. 2016) (citation omitted). See also Warth v. Seldin, 422 U.S. 490, 502 (1975) (assuming the validity of the plaintiff’s claims in determining the question of standing).
As far as we can tell, all the courts that have addressed the issue—two circuit courts and a number of district courts—have concluded that a plaintiff like Dr. Garcia-Bengochea has, at the motion to
A
To establish an injury in fact a plaintiff must have suffered “an invasion of a legally protected interest” that is both “concrete and particularized.” Lujan, 504 U.S. at 560 (citations omitted). An injury is particularized if it “affect[s] the plaintiff in a personal and individual way.’” Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting Lujan, 504 U.S. at 560 n.1). See also Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) (“Art. III requires the [plaintiff] … to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.“) (internal quotation marks and citation omitted). An injury is concrete if it is “real” and “not abstract.” Spokeo, 578 U.S. at 340.
The alleged injury here is particularized, and the cruise lines do not argue to the contrary. Dr. Garcia-Bengochea is suing based on his alleged personal interest in (or at least claim to) property that the Cuban government confiscated decades ago, and which has since been used without permission and without compensation. See Trip Advisor, 529 F.Supp.3d at 327; Norwegian Cruise Line, 484 F.Supp.3d at 1229. He is not asking a court to “decid[e] questions of broad social import” that are shared by other citizens in equal mеasure. See Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99–100 (1979). He is instead claiming injury to himself “as a result of the violation of . . . [statutorily] created legal rights.” Palm Beach Golf Center-Boca, Inc. v. John D. Sarris, D.D.S., P.A., 781 F.3d 1245, 1251 (11th Cir. 2015). And to the extent that there may be a dispute about whether Dr. Garcia-Bengochea has an enforceable interest in La Marítima, that dispute does not affect his standing. We must assume the validity of a claim in assessing standing, see Culverhouse, 813 F.3d at 994, and “‘when the existence of a protected property interest is an element of the claim, deciding whether the interest exists virtually always goes to the merits rather than the standing.’” Am. Airlines, 7 F.4th at 335 (quoting Protect Our Parks, Inc. v. Chicago Park Dist., 971 F.3d 722, 736 (7th Cir. 2020)). Accord PDVSA U.S. Litig. Tr. v. Lukoil Pan Americas, LLC, 991 F.3d 1187, 1191–92 (11th Cir. 2021).
Carnival and Royal Caribbean argue that Dr. Garcia-Bengochea’s injury is not
The Supreme Court has said that “[i]f a defendаnt has caused physical or monetary injury to the plaintiff, the plaintiff has suffered a concrete injury in fact under Article III.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204 (2021) (emphasis added). We have similarly stated that “financial loss” is an “obvious” tangible harm that constitutes injury in fact. See Muransky, 979 F.3d at 926. Assuming the validity of his Title III claims, see Culverhouse, 813 F.3d at 994, Dr. Garcia-Bengochea has alleged a tangible, and therefore concrete, injury. According to the complaints, the Foreign Claims Settlement Commission certified a portion of Dr. Garcia-Bengochea’s interest in La Marítima and valued that portion at $289,549.92 in 1970. That certified claim provides, in part, a means of quantifying financial harm. See Exxon Mobil, 534 F.Supp.3d at 31.
Though “the injury may have its origin in the confiscation” of La Marítima by the Cuban government, the cruise lines’ alleged “continued use” of the property without Dr. Garcia-Bengochea’s authorization does not render his “harm less tangible today.” Norwegian Cruise Line, 484 F.Supp.3d at 1228. See also Moreira, 573 F.Supp.3d at 926 (“Plaintiffs allege an injury from Defendants’ trafficking that is distinct from the confiscation of Banco Pujol by the Cuban Government.“). In other words, the cruise lines’ failure to obtain permission and pay for use of the property constitutes a pocketbook injury. See
As someone with a claimed interest in La Marítima, Dr. Garcia-Bengochea “is shut out wrongfully from the gains produced by exploiting property that is rightfully h[is].” Sucesores, 577 F.Supp.3d at 309. When Carnival and Royal Caribbean used the property as a part of their commercial businesses—without the permission of or payment to Dr. Garcia-Bengochea—they engaged in exactly the kind of conduct contemplated and prohibited by the Act. Congress knew that the Cuban government had wrongfully confiscated property from U.S. nationals, and enacted Title III for the very purpose of denying traffickers any profits they might obtain by subsequently exploiting the wrongful seizures. See
Consider an analogy to takings law. When real property is taken by the government through eminent domain, the financial harm to the owner does not necessarily end with the physical act of confiscation. If the property produced rental income, for example, the just compensation analysis can include the amounts that would have been recеived by the owner during the useful life of the property. See, e.g., Monongahela Nav. Co. v. United States, 148 U.S. 312, 343 (1893)
Even if we assume that Dr. Garcia-Bengochea’s claimed injury is somehow intangible, it is still concrete. The existence of a statutory right does not, by itself, establish concreteness, see Thole, 140 S.Ct. at 1620, but here the Title III remedy Congress created bears a close relationship to the remedy of unjust enrichment. See generally Restatement (First) of Restitution § 1 (ALI 1937) (“A person who has been unjustly enriched at the expense of another is required to make restitution to the other.“). In enacting Title III, Congress recognized that the international judicial system “lack[ed] fully effective remedies for the wrongful confiscation of property and for unjust enrichment from the use of wrongfully confiscated property,”
We agree with the Fifth Circuit (and other courts) that “[t]he harm allegedly caused by [the cruise lines’] trafficking bears a close relationship to unjust enrichment, which has indisputable common-law roots.” Am. Airlines, 7 F.4th at 334 (citing Development in the Law: Chapter One—The Intellectual History of Unjust Enrichment, 133 Harv. L. Rev. 2077, 2078–87 (2020)). See also Glen, 2022 WL 3538221, at *2 (“[W]e agree with the Fifth Circuit that the harm Glen alleges—namely, [the defendants’] wrongfully profiting from his usurped properties—bears a ‘close relationship to unjust enrichment, which has indisputable common-law roots.’“); Moreira, 573 F.Supp.3d at 927 (“Congress did indeed ‘elevate to the status of legally cognizable’ a harm that has traditionally been regarded as providing a basis for a lawsuit in American courts: the harm of unjust enrichment.“). As noted earlier, a Title III plaintiff like Dr. Garcia-Bengochea is “injured concretely when [he] is shut out wrongfully from the gains produced by exploiting property” that he claims is “rightfully h[is].” Sucesores, 577 F.Supp.3d at 309.
Think of a situation where the government nationalizes or confiscates a six-bedroom beachfront home without paying its owner anything for it and transfers the property to a political supporter for free. The supporter then turns the property into a successful boutique hotel, which he operates for decades at a significant profit. The political supporter, who has not obtained the original owner’s permission (or paid anything) for the use of the property, can be said to have been unjustly enriched (at
B
To satisfy the traceability requirеment, a plaintiff must establish a “causal connection between the injury and the conduct complained of.” Lujan, 504 U.S. at 560. Dr. Garcia-Bengochea therefore needs to sufficiently allege that his injury is “fairly traceable” to the cruise lines’ conduct rather than “the result of the independent action of some third party not before the court.” Id. (internal quotation and citation omitted).
Carnival and Royal Caribbean contend, in an argument related to their position on injury, that Dr. Garcia-Bengochea has not alleged causation because his injury is the result of the Cuban government’s confiscation of La Marítima, and not their own conduct. Like other courts which have addressed the same or similar argument in Title III cases, we are not persuaded.
It seems to us that the argument proceeds from the wrong starting point. The injury that must be traced here is the cruise lines’ alleged use of La Marítima without obtaining Dr. Garcia-Bengochea’s permission and without payment of compensation for that use. As we have explained, Dr. Bengochea has been allegedly injured by both the Cuban government’s initial confiscation of the property and the cruise lines’ subsequent trafficking in the property. Because his action targets the latter and not the former, the causation element is satisfied. See Am. Airlines, 7 F.4th at 336 (“[The plaintiff’s] alleged injury is traceable to American. He alleges an injury that is entirely separate from either the confiscation of the properties or the operations of hotels on the properties.“); Exxon Mobil, 534 F.Supp.3d at 31 (“Defendants . . . miss the mark by characterizing Exxon’s injury as the expropriation of Essosa’s property.“); Norwegian Cruise Line, 484 F.Supp.3d at 1230 (“NCL’s conduct of using and profiting from the Subject Property is fairly traceable to Plaintiff’s claimed injuries.“).
It is true, in a chronological sense, that the cruise lines’ ability to cause the trafficking injury identified in Title III is linked to the earlier actions of the Cuban government. Had the Cuban government not confiscated La Marítima, Carnival and Royal Caribbean would not have been able to use that property without compensating its owners. But that is not a problem at this point in the litigation. The Supreme Court has been clear that “[p]roximate cause is not a requirement of Article III standing.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 134 n.6 (2014). And so have we. See Resnick v. AvMed, Inc., 693 F.3d 1317, 1324 (11th Cir. 2012) (“A showing that an injury is fairly traceable requires less than a showing of proximate cause.“) (internal quotations omitted).
Resnick is a good example of how the traceability element works. In that case, members of health care plans brought several tort and contrаct claims against a health care plan operator for its failure to secure laptops at its office that contained the members’ sensitive information. The laptops were stolen by third parties and then sold to another individual with a history of dealing in stolen property. Subsequently, several members became victims of identity theft. Those members were injured by the person who allegedly either sold or used the information stored in the laptops to commit identity theft. See Resnick, 693 F.3d at 1321–22. The health care operator, the defendant which was being sued, was not the sole or even proximate cause of the members’ injuries. Had the laptops not been stolen, it is possible that the unsecured information would not have been compromised in the data breach. And if the laptops had not been sold by the thieves to the person who sold or used the confidential information, there may not have been any identity theft. Nevertheless, causation for the purposes of Article III was not a problem with respect to the health care operator. We explained that traceability does not equate to proximate cause, noting that “[e]ven a showing that a plaintiff’s injury is indirectly caused by a defendant’s actions satisfies the traceability requirement.” Id. at 1324.
As Resnick demonstrates, the presence of multiple actors in a chain of events that lead to the plaintiff’s injury does not mean that traceability is lacking with respect to the conduct of a particular defendant. If the facts alleged are taken as true, and if the validity of Dr. Garcia-Bengochea’s claim is assumed, the claimed trafficking injury is fairly traceable to Carnival and Royal Caribbean, even if they had some help from the Cuban government along the way.
C
Finally, we address redressability, the third and final requirement of Article III standing. To satisfy this requirement, a plaintiff needs to show that “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Lujan, 504 U.S. at 561 (quoting Simon v. Eastern Ky. Welfare Rts. Org., 426 U.S. 26, 38, 43 (1976)). At this stage, Dr. Garcia-Bengochea must plausibly allege that a decision in his favor would “significant[ly] increase ... the likelihood that [he] would obtain relief that directly redresses the injury suffered.” Harrell v. Fla. Bar, 608 F.3d 1241, 1260 n.7 (11th Cir. 2010) (citation omitted). Significantly, for standing purposes the relief sought need not be
complete. See Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801 (2021) (addressing whether an award of nominal damages satisfies redressability: “True, a single dollar often cannot provide full redress, but the ability ‘to effectuate a partial remedy’ sаtisfies the redressability requirement.“); Made in the U.S.A. Foundation v. United States, 242 F.3d 1300, 1310 (11th Cir. 2001) (agreeing that a “partial remedy would be sufficient for redressability“) (internal quotation marks and citation omitted).
Dr. Garcia-Bengochea has sufficiently alleged redressability. His claimed financial injury includes the cruise lines’ alleged use of (i.e., trafficking in) La Marítima without his permission and without compensation. An award of damages under Title III will, at least in part, redress that injury. See, e.g., Trip Advisor, 529 F.Supp.3d at 328 (“Glen‘s alleged injury can be redressed by a favorable judgment. A favorable judgment would entitle Glen to money damages as specified in the Helms-Burton Act . . ., compensation that would redress the harm [he] allegedly suffered from Defendants’ economic exploitation of the Subject Properties.“); Norwegian Cruise Line, 484 F.Supp.3d at 1231 (explaining that a Title III plaintiff need not regain its confiscated property to demonstrate redressability).
We note, as well, that Dr. Garcia-Bengochea alleges that he his interest in La Marítima has been partially certified by the Foreign Claims Settlement Commission. One measure of damages specified in Title III is the amount of such a certified claim, see
III
The district court granted judgment on the pleadings in favor of Carnival under
A
We review the grant of judgment on the pleadings de novo. See Perez v. Wells Fargo N.A., 774 F.3d 1329, 1335 (11th Cir. 2014). Under
B
In his complaint, Dr. Garcia-Bengochea alleged that he is the rightful owner of an interest in La Marítima, and that a portion of his interest was certified by the Foreign Claims Settlement Commission in 1970 in resolving the claim of Albert Parreño (whom we‘ll refer to as Albert). See e.g., CC D.E. 1-1 at ¶¶ 6, 10 & Ex. A. He did not allege anything further as to how, or when, or from whom, he obtained his interest in La Marítima.
The information about Dr. Garcia-Bengochea‘s ownership of the interest in La Marítima came from Carnival‘s answer, the exhibits attached to that answer, the
In sum, the district court went beyond the allegations in Dr. Garcia-Bengochea‘s complaint and attached exhibit in ruling on the
Dr. Garcia-Bengochea generally objected to Carnival‘s
On appeal, Dr. Garcia-Bengochea does not raise any procedural challenges to the district court‘s
C
With certain exceptions not relevant here, Title III of the Helms-Burton Act provides that “any person” who “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[.]”
At this stage of the proceedings, Dr. Garcia-Bengochea satisfies the requirements of these two provisions. Accepting
Two other provisions of Title III, however, contain limitations on which U.S. nationals can bring a claim:
(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.
The district court ruled that Dr. Garcia-Bengochea could not bring an action under Title III due to
It is undisputed that La Marítima was confiscated prior to the Act‘s passage. The parties, therefore, understandably focus on the meaning of the word “acquires” in
Dr. Garcia-Bengochea contends that the word “acquires” does not encompass the passive act of inheritance and rather requires affirmative effort to gain ownership or possession. He asserts that this reading is the appropriate one given the text and purpose of the Act. If the district court‘s reading is sustained, he says, no heirs could bring Title III claims where the property was confiscated before March 12, 1996, but the original owner died after that date and bequeathed his interest.
The cruise lines, in support of the district court‘s rulings, construe the word “acquires” broadly to include inheritance. They argue that because confiscation took place before the passage of the Act, and because Dr. Garcia-Bengochea inherited ownership after 1996, he is barred from asserting a Title III claim by
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
In our view, the district court came to the correct conclusion. We agree with the Fifth Circuit‘s analysis in American Airlines:
The plain meaning of “acquires” is “[t]o gain possession or control of; to get or obtain.” Acquire, BLACK‘S LAW DICTIONARY 29 (11th ed. 2019); WEBSTER‘S THIRD
NEW INT‘L DICTIONARY 18 (1993) (“[T]o come into possession, control, or power of disposal of.“). That includes inheritance. If Congress meant for “acquires” to require some form of active conduct, like a purchase, it knew how to communicate that meaning. In fact, it did so in the very same section of the Act: “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.” 22 U.S.C. § 6082(a)(4)(C) (emphasis added). There would have been no reason for Congress to add the words “by assignment for value” if “acquires ownership” was already limited to assignment for value.
Every court to address the issue has read the statute the same way as we do. See Gonzalez v. Amazon.com, Inc., 835 F. App‘x 1011, 1012 (11th Cir. 2021) (holding that the plaintiff, who inherited property in 2016, “did not possess a clаim to confiscated property until twenty years after the Helms-Burton Act‘s cutoff date“); Glen, 529 F.Supp.3d [at] 329–30, (“[S]ince Glen did not acquire the ownership of the claim before March 12, 1996, by inheritance or any other manner, he falls within the category of ‘United States nationals’ who ‘may not bring an action under this section.‘“) (quoting
IV
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
AFFIRMED.
JORDAN, Circuit Judge, Concurring.
José Martí, the 19th-century Cuban patriot, stateman, essayist, and poet, often used palm trees as metaphorical figures. In a speech to Cuban émigrés advocating for independence of his homeland from Spanish rule, he famously said that “las palmas son novias que esperan” (“the palm trees are brides who wait“). See José Martí, Discurso en El Liceo Cubano, Tampa, Nov. 25, 1891, in Martí en su Universo: Una Antología (Real Academia Española 2022). The phrase was a hopeful one for Cubans in the late 1800s and early 1900s, and it remains the same today for those who were forced to leave the island after Fidel Castro took power in 1959. Return, however, has only been a dream for Cuban immigrants. Today, more than 60 years
Much was lost in the Cuban migration to the United States, and the Helms-Burton Act,
With respect to our dеcision 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
I
As set out in the court‘s opinion, Dr. Javier Garcia-Bengochea alleged that he is a U.S. national and the rightful owner of an interest in La Marítima, which was confiscated by the Cuban government in 1960. A portion of that interest was certified by the Foreign Claims Settlement Commission in 1970 in resolving the claim of Albert Parreño, who was also a U.S. national. See CC D.E. 1-1 at ¶¶ 6, 7, 10 & Exh. A.
The parties agree that Albert, who died in 1972, passed on his interest in La Marítima to his brother, Desiderio Parreño, a Costa Rican national. And when Desiderio died in 2000, after the Helms-Burton Act went into effect, he passed on his interest in La Marítima to his cousin, Dr. Garcia-Bengochea. So Dr. Garcia-Bengochea obtained his interest in La Marítima through inheritance from Desiderio.
Two Title III provisions limit which U.S. nationals can bring a claim for the trafficking property confiscated by the Cuban government. They read as follows:
(B) In the case of property cоnfiscated 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.
II
The majority, agreeing with the Fifth Circuit‘s resolution of the same issue in Glen v. Am. Airlines, Inc., 7 F.4th 331, 336 (5th Cir. 2021), and with our unpublished decision in Gonzalez v. Amazon.com, Inc., 835 F. App‘x 1011, 1012 (11th Cir. 2021), affirms the district court‘s entry of judgment on the pleadings in favor of Carnival and Royal Caribbean. I concur in that
The Helms-Burton Act defines a number of terms, see
The Fifth Circuit, and the district court here, reasoned that “acquires” in
A
Even if Justice Robert Jackson was correct in describing dictionaries as “the last resort of the baffled judge,” Jordan v. De George, 341 U.S. 223, 234 (1951) (Jackson, J., dissenting), our current jurisprudence directs us to lay and legal dictionaries around the time of enactment to ascertain the meaning of statutory terms. See, e.g., EEOC v. Catastrophe Management Solutions, 852 F.3d 1018, 1026 (11th Cir. 2016). The problem here is that the relevant dictionary definitions do not settle the matter. 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. As one scholar has so aptly put it, “[t]extualism demands nontextual sources of argument.” H. Jefferson Powell, A Community Built on Words: The Constitution in History and Politics 21 (2002).
Looking first to lay dictionaries published around the time the Helms-Burton Act became law, there are two different conceptions of the word “acquire.” One broadly encompasses possession by any means, while another more narrowly requires proactive, affirmative effort to gain possession. See 1 New Shorter Oxford English Dictionary 20 (4th ed. 1993) (defining “acquire” broadly as to “[c]ome into possession of” and narrowly as to “[g]ain or get as one‘s own, by one‘s own exertions or qualities“); The American Heritage Dictionary of the English Language 12 (3d ed. 1993) (defining “acquire” broadly as “[t]o get possession of” and narrowly as “[t]o get by one‘s own efforts“); Random House Webster‘s Unabridged Dictionary 18 (2d ed. 1997) (defining “acquire” broadly as “to come into possession or ownership of” and narrowly as “to gain for oneself through one‘s actions or efforts“).
More contemporary lay dictionaries follow a similar pattern of distinguishing between gaining possession by any means, including passive inheritance, and gaining possession through affirmative efforts. See
The district court opted to use Black‘s Law Dictionary, both the sixth edition—which was the most current edition prior to the enactment of the Helms-Burton Act—and the most recent eleventh edition. It concluded that the “plain meaning” of the term “acquire” was “broad enough to cover inheritance,” but did not discuss the competing conceptions of the word “acquire” or why it chose the broader definition over the narrower one. See D.E. 120 at 7. Instead, the district court relied on the sixth edition‘s definition of the word “acquire,” only citing the final entry, which explained that the term “[i]ncludes taking by devise.” See D.E. 120 at 7. But that very entry was followed by a case citation to United States v. Merriam, 263 U.S. 179, 184–85 (1923), which concerned the interpretatiоn of a particular provision in a will and property “acquired by bequest.” Black‘s Law Dictionary 24 (6th ed. 1990). In that context, the definition of the word “acquired” invariably included inheritance because it was modified by the phrase “by bequest.” That is not the case here with respect to
In fact, the sixth edition of Black‘s Law Dictionary also defines “acquire” as “[t]o gain by any means, usually by one‘s own exertions.” The entry therefore includes both broad and narrow understandings of the word “acquire.” See also Burton‘s Legal Thesaurus 10 (4th ed. 2007) (categorizing “acquire” as a passive verb (i.e., “[r]eceive“) and as an affirmative verb (i.e., “secure“)); Black‘s Law Dictionary 29 (11th ed. 2019) (defining “acquire” generally as “[t]o gain possession or control of; to gain or obtain“).
So a survey of lay and legal dictionaries reveals different possible interpretations of the word “acquire,” and no definitive answer on which one should control here. “The bottom line is that the text [of
B
Clarity often comes with context. After all, to discern the meaning of a statute “words must be read and interpreted in their context, not in isolation.” Sw. Airlines Co. v. Saxon, 142 S. Ct. 1783, 1788 (2022) (internal quotation marks and citation omitted). See also Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000) (“The meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.“); Brown v. Gardner, 513 U.S. 115, 118 (1994) (”
And context includes textual purpose. See Stansell v. Revolutionary Armed Forces of Colombia, 45 F.4th 1340, 1354–55 (11th Cir. August 23, 2022) (relying, in part, on congressionally-codified purpose of a federal law to confirm interpretation of a statutory term); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (Thomson/West 1st ed. 2012) (“Of course, words are given meaning by their context, and context includes the purpose of the text[.]“). Here Congress stated that Title III of the Helms-Burton Act is meant “to protect United States nationals against confiscatory takings and the wrongful trafficking in property confiscated by the Castro regime.”
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). Cf. Morell E. Mullins, Sr., Coming to Terms with Strict and Liberal Construction, 65 Albany L. Rev. 9, 75 (2000) (“An express statutory purpose of avoiding inadequate compensation for accident victims leads rather naturally to statutory construction in favor of such victims.“).
Here‘s why. If the word “acquires” in
Moreover, as noted in the court‘s opinion, Congress built in a six-month suspension provision for Title III, see
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
Indeed, the legislative history indicates that Congress was worried not about the inheritance of interests in confiscated properties, but about the sale, trading, or bartering of such interests after the passage of the Helms-Burton Act. Congress was concerned that Title III would, upon enactment, create a marketplace for interests in confiscated properties and to claims for trafficking in those properties. The House Conference Report, for example, stated that
Title III provided a new way—through a private right of action for claims of trafficking—to monetize interests in confiscated properties. It therefore created value for claims that had seemed practically worthless given the inability of the United States to reach any financial settlements with the Cuban government. A U.S. nаtional who had no relationship to confiscated property, having taken note of Title III‘s remedies, might find it lucrative to buy a claim that could pay dividends every time the confiscated property was “trafficked.” See W. Fletcher Fairey, The Helms-Burton Act: The Effect of International Law on Domestic Implementation, 46 American U. L. Rev. 1289, 1308 n. 108 (1997). Congress wanted to prevent that sort of a marketplace for Title III claims—a concern not present when one U.S. national, through a will, passes on his or her interest in confiscated property to a relative who is also a U.S. national.
If the only statutory language at issue was the text of
C
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
Generally, an identical term used in the same statute is presumed to have the same meaning throughout. See, e.g., Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980). Though that presumption can be rebutted, see Environmental Defense v. Duke Energy Corp., 549 U.S. 561, 574 (2007) (explaining that “[a] given term in the same statute may take on distinct characters from association with distinct statutory objects calling for different implementation strategies“), I do not believe it can be successfully overcome here.
In defining the scope of liability for trafficking, Title III provides that “any person that . . . 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.”
As a reminder,
There are two textual differences between
This is where Dr. Garcia-Bengochea‘s suggested interpretation of the word
I concede that this is not a wholly satisfactory resolution in light of Congress’ express twin purposes of compensation and deterrence. U.S. nationals who are heirs of individuals whose property was confiscated after passage of the Helms-Burton Act can bring Title III claims, but many U.S. nationals who are heirs of individuals whose property was confiscated in the 1960s—as the vast majority of property was—are denied a Title III remedy. Why wоuld Congress deny a Title III claim to heirs of those more likely to be more numerous and older but allow a claim to heirs of those who suffered later (i.e., post-enactment) confiscations? I do not have any ready answers. All I can say is that, in my view, Dr. Garcia-Bengochea‘s interpretation of
Interpreting
Earlier, I used the example of Cuban twin brothers whо co-owned a casino that was confiscated by the Cuban government to show how our interpretation of
III
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