Trump Administration Backs Helms-Burton Plaintiffs in Two CVSGs
September 4, 2025
Last week, the Solicitor General filed briefs recommending that the Supreme Court grant review in two cases under the Helms-Burton Act. Passed in 1996, Helms-Burton allows U.S. nationals who own claims to property expropriated by Cuba to sue any person who traffics in such property, potentially for three times the value of the claim. Under the original terms of the Act, the President could suspend the right to bring suit for six-month periods, and every President did so until May 2019, when President Trump let the suspension lapse and suits began to be filed.
As Ingrid Brunk and I have discussed in various posts, some decisions in the lower courts have cut in favor of plaintiffs and some against them. Earlier this year, the Supreme Court called for the views of the Solicitor General (CVSG’d) in two cases that went against the plaintiffs. In Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., the Eleventh Circuit held that the plaintiff could not bring claims against cruise ship companies for using expropriated piers in Havana harbor after 2004, because plaintiff’s 99-year concession would have expired by then. In Exxon Mobil Corp. v. Corporación Cimex, S.A., the D.C. Circuit held that Helms-Burton did not override the Foreign Sovereign Immunities Act (FSIA) with respect to claims against agencies or instrumentalities of the Cuban government.
In both briefs, the SG said that the lower courts had wrongly limited plaintiffs’ rights to bring suit under Helms-Burton.
Such suits promote justice for American victims, impose accountability on the Cuban government, deter private actors from collaborating with that government to exploit expropriated property, deprive the Cuban government of funds that undermine the United States’ longstanding embargo of Cuba, and increase economic pressure to achieve democratic reforms in Cuba.
Havana Docks
In 1905, Cuba granted a concession to build and operate piers at the Port of Havana. The concession was ultimately transferred to Havana Docks (a Delaware corporation) and extended to 99 years. In 1960, Cuba expropriated the concession, along with much other U.S.-owned property. Havana Docks filed a claim with the U.S. Foreign Claims Settlement Commission, which certified a loss of approximately $9 million plus interest from the date of expropriation. When President Trump ended the suspension of Helms-Burton’s cause of action in 2019, Havana Docks sued four U.S. cruise lines that used the piers between 2016 and 2019. The district court awarded damages of nearly $110 million (the present value of the claim times three) against each of the four defendants.
But the Eleventh Circuit reversed. The defendants were not liable, the court reasoned, because “Havana Docks’ limited property interest had expired, for purposes of Title III, at the time of the alleged trafficking by the cruise lines.” In other words, because the plaintiff’s concession would have expired in 2004, the defendants could not be held liable for using the piers after that time.
In his brief, the SG criticizes the lower court’s holding for imposing “an atextual precondition.” The Act’s key provision reads in relevant part:
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 for money damages.
According to the SG, “Title III’s text provides that, so long as a plaintiff holds a ‘claim’ to confiscated property, that plaintiff may sue defendants who traffic in that property—regardless of what might have happened to the plaintiff’s property interest in an alternative world without Castro’s expropriations.” The Act “authorizes suits based on claim ownership, not on present or future entitlement to the confiscated property” (emphasis in original).
The SG buttresses his argument with the Act’s definition of “traffics,” which includes the use of confiscated property “without the authorization of any United States national who holds a claim to the property.” The SG also notes that the Eleventh Circuit’s holding would bar some claims “that Congress expressly contemplated.” The Act defines “property” to include patents, for example. Under Cuban law in 1960, patents lasted for 17 years. The fact that all expropriated patent rights would have expired long before Helms-Burton was enacted, suggests that Congress did not intend liability to depend on whether the plaintiff would have had a property right at the time of the trafficking.
When I first wrote about this case, I found the Eleventh Circuit’s reasoning convincing because of the present-tense of the word “traffics.” But I must say that I find the SG’s textual arguments quite persuasive.
His policy arguments are somewhat less so. Yes, allowing such suits will provide compensation for Havana Docks and deter private actors from collaborating with Cuba, as the SG’s brief notes in the text quoted at the outset. But it is worth noting that if the Eleventh Circuit’s decision is reversed, Havana Docks will recover not just the amount of its claim but twelve times the amount—that is, three times the value of the claim from each of four defendants. It is also worth noting that the four defendants are being sued for using the piers from 2016 to 2019 during a period when a general license from the U.S. government arguably allowed U.S. companies to do this, a period that includes more than half of the first Trump administration. Finally, it is worth recalling that Helms-Burton’s trafficking provision was originally intended to deter foreign companies from investing in Cuba at a time when U.S. companies were prohibited from doing so. If the United States wants to bar U.S. cruise ships from sailing to Cuba, it is free to do so, as it has again since 2019. But it seems deeply unfair to impose enormous liabilities on U.S. companies if those companies were simply following current U.S. policy.
Cimex
In 1960, Cuba also expropriated the assets of Exxon Mobil (then, Standard Oil) in Cuba. The U.S. Foreign Claims Settlement Commission certified that Exxon’s losses were approximately $71.6 million plus interest from the date of expropriation. When the suspension of Helms-Burton’s right to sue ended in 2019, Exxon sued three Cuban state-owned entities for trafficking in confiscated properties.
The FSIA provides that foreign states and their agencies or instrumentalities, including state-owned enterprises such as the defendants, are immune from suit in federal and state courts unless one of the FSIA’s exceptions to immunity applies. Exxon argued that the Helms-Burton Act abrogated the defendants’ immunity under the FSIA, but the D.C. Circuit rejected that argument. The court went on to hold that the FSIA’s expropriation exception did not apply, and it remanded to the district court for further consideration of whether the FSIA’s commercial activities exception did.
The SG’s brief in this case argues that the Helms-Burton Act “unambiguously abrogates the immunity of Cuban agencies and instrumentalities regardless of whether more general FSIA exceptions apply.” The SG notes that Helms-Burton creates a cause of action against “any person” who traffics in confiscated property. The Act defines “person” to include “any agency or instrumentality of a foreign state.” And there are various other provisions of the Act that refer to claims “against the Cuban Government.” The SG also points out that Helms-Burton expressly incorporates certain provisions of the FSIA, such as the one on serving process upon an agency or instrumentality of a foreign state, which would have been unnecessary if the FSIA understood the FSIA to apply already. Finally, the SG argues that the Helms-Burton Act “codifies the Executive Branch’s foreign-policy judgments about the desirability of allowing Title III suits to proceed,” which would be undermined by applying the FSIA in this context.
When Ingrid wrote about the D.C. Circuit’s decision, she found the question to be closer than she expected. After reading the SG’s brief, I don’t find it close at all—in my view, the D.C. Circuit was clearly right, and the SG is clearly wrong.
Certainly, the text of the statute shows that Congress created a cause of action that applies to agencies or instrumentalities of foreign states. But whether a cause of action exists is a separate question from whether the defendant is immune from jurisdiction. In Argentine Republic v. Amerada Hess Shipping Corp. (1989), the Supreme Court held “that the FSIA provides the sole basis for obtaining jurisdiction over a foreign state in federal court,” a proposition it has repeated many time since. Simply creating a cause of action is not enough to abrogate immunity.
The SG notes that “Congress remains free to revise the balance it struck in the FSIA because earlier Congresses cannot bind later ones.” Absolutely true. But Congress has always done this by addressing foreign sovereign immunity directly, as it did when it added exceptions to the FSIA for arbitration, state-sponsored terrorism, and international terrorism in the United States. The FSIA’s exception for state-sponsored terrorism was added in 1996, the same year that Congress passed Helms-Burton, and yet Helms-Burton says nothing about immunity from suit.
The SG relies heavily on Department of Agriculture Rural Development Rural Housing Service v. Kirtz (2024), in which the Supreme Court held that a federal statute creating a cause of action and explicitly authorizing suit against the government abrogated the immunity of the United States. But, as the D.C. Circuit noted, recognizing sovereign immunity in that case would have effectively negated the statute, whereas recognizing it in this case would not, since claims may still be brought against agencies and instrumentalities if one of the FSIA’s exceptions applies. Moreover, as the court of appeals also noted, the sovereign immunity of state and federal governments derives from different sources than the sovereign immunity of foreign states and does not carry the same foreign relations implications.
If Helms-Burton’s cause of action is sufficient to abrogate foreign sovereign immunity, how about other statutes focused on foreign states or foreign officials? The Fifth Circuit recently held (correctly, in my view) that the Torture Victim Protection Act (TVPA) does not abrogate the immunity of foreign officials under federal common law. In a 2020 brief, the SG took the same position. “The [TVPA] creates a cause of action only,” the SG wrote, “it says nothing about immunities. Because the TVPA does not speak directly to the question addressed by the common law concerning conduct-based immunity for foreign officials, the statute does not abrogate that doctrine” (quotation marks omitted). It is hard for me to see how Helm-Burton is meaningfully different. Yes, foreign state immunity is codified, and foreign official immunity is not, but surely federal common law should not be harder for Congress to abrogate than a federal statute. Just as there is a presumption against invading the common law, there is also a presumption against implied repeal of statutes.
The SG’s other arguments that Helms-Burton abrogates the FSIA are no more convincing. Helms-Burton § 6082(c)(2)’s incorporation of the FSIA’s service provisions does not reflect an understanding that the FSIA would not otherwise apply any more than § 6082(c)(1)’s incorporation Title 28 reflects an understanding that its provisions would not otherwise apply. Both provisions seem intended for clarity only. On the other hand, Helms-Burton did expressly amend the FSIA’s rules on immunity from execution with respect to judgments under the Act, which would have been unnecessary if Congress understood the FSIA not to apply. Ironically, the SG’s brief assumes that the FSIA’s venue provision applies to suits against foreign agencies and instrumentalities notwithstanding Helms-Burton’s failure to incorporate it expressly. “The federal venue statute effectively limits suits against Cuban agencies and instrumentalities to the District of Columbia,” the brief says, which is presumably also why Exxon filed suit there in the first place.
As for the argument that the President’s authority to suspend and unsuspend Helms-Burton’s cause of action implies a similar authority with respect to immunity, this simply does not follow. First, as noted above, causes of action and rules of immunity are different things. Second, the FSIA was specifically intended to remove the executive’s discretion over the immunity of foreign states.
Personal Jurisdiction
Ingrid and I have previously written about how the Supreme Court’s rules on personal jurisdiction have largely shielded foreign defendants from suit under Helms-Burton. That is why the defendants in Havana Docks are, as I understand it, all U.S. cruise ship lines.
With respect to the Cimex case, I wonder if Exxon has thought through the implications of its FSIA arguments for personal jurisdiction. If the FSIA applies, and Exxon can fit its claims within an exception, then the federal court will have personal jurisdiction automatically by virtue of 28 U.S.C. § 1330(b). Prior to the Supreme Court’s recent decision in Fuld v. PLO (2025), that might have been questionable. But as I explained in another post, Fuld appears to validate this FSIA provision.
If, on the other hand, the FSIA does not apply—as Exxon argues—then neither does § 1330(b). In that case, Exxon would have to show that the district court has personal jurisdiction over the defendants. Because the defendants are foreign agencies and instrumentalities not domiciled in the United States, they are not subject to general jurisdiction. And because the alleged trafficking in confiscated property occurred outside the United States (at least according to the D.C. Circuit), they are not subject to specific jurisdiction either. In other words, Exxon’s argument that the FSIA does not apply to their claims might come back to bite it when the district court has to address personal jurisdiction.
Conclusion
My guess is that a grant of certiorari is likely in one or both of these cases. There is no split among the circuits on either issue. But the SG correctly points out that such a split is unlikely to develop because most Helms-Burton cases are brought in the Eleventh Circuit, unless the defendant is an agency or instrumentality of a foreign state, in which case they are brought in the District of Columbia (under the FSIA’s venue provision).
Other significant questions may yet make their way to the Supreme Court. When they do, plaintiffs can probably count on the Trump administration to back their positions too.