Ferreiro v. U.S., 03-5043.

• Decision Date: 04 December 2003
• Docket Number: No. 03-5043.,03-5043.
• Parties: Teresa Alen FERREIRO, Dorothy Erasmo Jeffers, and Mario Vazquez Lopez, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

350 F.3d 1318

Teresa Alen FERREIRO, Dorothy Erasmo Jeffers, and Mario Vazquez Lopez, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.

No. 03-5043.

United States Court of Appeals, Federal Circuit.

DECIDED: December 4, 2003.

COPYRIGHT MATERIAL OMITTED

Charles P. Randall, Enriquez & Randall, of Boca Raton, FL, argued for plaintiffs-appellants.

David D'Alessandris, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the briefs were David M. Cohen, Director, and Mark A. Melnick, Assistant Director.

Before CLEVENGER, GAJARSA, and DYK, Circuit Judges.

CLEVENGER, Circuit Judge.

This suit was brought in the United States Court of Federal Claims by Cuban nationals seeking payment of pension benefits from the United States government. The complaint alleges that the plaintiffs are former military personnel, or the surviving spouses of former military personnel, who served in various branches of the United States armed forces during World War II, and therefore, are entitled to participate in the Civil Service Retirement System. The Court of Federal Claims dismissed the plaintiffs' action for want of jurisdiction, holding that it did not have subject matter jurisdiction over their complaint pursuant to 28 U.S.C. § 2502(a) (the "Reciprocity Act") even if they were entitled to payment. Ferreiro v. United States, 54 Fed. Cl. 274, 281 (2002). The Reciprocity Act limits the jurisdiction of the Court of Federal Claims over suits brought by aliens against the United States to those suits in which the alien's home country "accords to citizens of the United States the right to prosecute claims against their government in its courts." 28 U.S.C. § 2502(a) (2000). For the reasons set forth below, we vacate the judgment of the Court of Federal Claims dismissing the complaint and remand the case for a more complete assessment of whether the plaintiffs have satisfied the requirements of the Reciprocity Act.

I

The Reciprocity Act stands to assure foreign nationals of their right to sue the United States when their home courts do not discriminate against United States citizens by precluding United States citizens from bringing suits against the foreign government in its own courts. The Reciprocity Act is virtually ancient, having been enacted by the 40th Congress in 1868. Act of July 27, 1868, § 2, 15 Stat. 243. The Reciprocity Act appeared in its initial form as a proviso to a law that barred aliens from bringing suits against the United States to recover property in insurrectionary districts that the government had seized pursuant to certain Civil War era enactments. See Nippon Hodo Co. v. United States, 152 Ct.Cl. 190, 285 F.2d 766, 766-67 (1961) (discussing legislative history of the Reciprocity Act). At the time, the proviso stated that the law would:

not be construed so as to deprive aliens who are citizens or subjects of any government which accords to citizens of the United States the right to prosecute claims against such government in its courts, of the privilege of prosecuting claims against the United States in the court of claims, as now provided by law.

Act of July 27, 1868, § 2, 15 Stat. at 243. The Act of March 3, 1911, contained a similar provision which read:

Aliens who are citizens or subjects of any government which accords to citizens of the United States the right to prosecute claims against such government in its courts, shall have the privilege of prosecuting claims against the United States in the Court of Claims, whereof such court, by reason of their subject matter and character, might take jurisdiction.

36 Stat. 1087, 1139. The modern Reciprocity Act was codified as 28 U.S.C. § 2502 in 1948 and states:

Citizens or subjects of any foreign government which accords to citizens of the United States the right to prosecute claims against their government in its courts may sue the United States in the Court of Claims if the subject matter of the suit is otherwise within such court's jurisdiction.

In 1992, the language of the Reciprocity Act was changed to replace "Court of Claims" with the name of its successor court, the "United States Court of Federal Claims." Federal Courts Administration Act of 1992, Pub.L. No. 102-572, § 902(a)(1), 106 Stat. 4506, 4516 (1992).

The Reciprocity Act has been interpreted on a number of occasions. Two years after its enactment, the Supreme Court considered whether a British subject could maintain a suit in the Court of Claims to recover compensation for abandoned cotton that had been captured by the United States. United States v. O'Keefe, 11 Wall. 178, 78 U.S. 178, 179, 20 L.Ed. 131 (1870). The government argued that reciprocity between the United States and the United Kingdom did not lie because British subjects could only bring suits against the Crown at the discretion of the King whereas the initiation of suits in the Court of Claims was not subject to the permission of the President. Id. at 182. The Court explained that English common law required an aggrieved British subject to first bring a "petition of right" in order to sue the Crown and that such petitions were denied only in extraordinary cases. Id. at 183-84. The Court conceded that there could be instances where the Crown might deny a petition of right on account of political considerations, but concluded, nevertheless, that "[i]t would be a severe rule of interpretation that would exclude all British subjects from the Court of Claims, because in a few sporadic cases, from motives of state policy, the petition of right was denied." Id. at 184.

So long as United States citizens could bring petitions of right, which the record indicated was the case, the King's power to deny the petition did not automatically defeat a claim of reciprocity. Reciprocity only required the Crown to give United States citizens the right to file petitions of right just as it did British subjects. It did not require parity between the procedures provided by the American and British systems to press grievances against the sovereign.

In Brodie v. United States, 62 Ct.Cl. 29, 45-46 (1926), the Court of Claims considered whether a British subject could maintain a suit against the United States for patent infringement even though a United States citizen could not bring a like suit against the Crown under the laws of Great Britain. The court stated that barring the plaintiff's suit would require "too narrow a construction" of the Reciprocity Act and concluded that reciprocity was not automatically defeated simply because the Crown had not waived immunity for patent infringement. Id. at 46. The court held the plaintiff had standing to sue the United States because British subjects and American citizens shared equally in the disability under the British system and the doors of the British courts were open to American citizens for the prosecution of other claims against the Crown. Id.

In subsequent cases, the Court of Claims reinforced the concept that reciprocity only requires equal treatment. That court stated:

The admission of American citizens to the Philippine courts with all of the rights of Philippine citizens as against the Philippine Government satisfies the requirements of Section 2502, and the fact that the consent of the Philippine Government to be sued is more restricted than the consent of the United States Government to be sued, is not controlling.

Marcos v. United States, 122 Ct.Cl. 641, 102 F.Supp. 547, 551 (1952), overruled on other grounds by Compania Maritima v. United States, 136 Ct.Cl. 697, 145 F.Supp. 935, 936-40 (1956). In Nippon Hodo, the Court of Claims held that the Reciprocity Act "contemplates only that American citizens enjoy an equal standing with foreigners in actions against the foreign State" and does not require the existence of an action against the foreign state of identical nature or scope. 285 F.2d at 767-68.

Finally, in Zalcmanis v. United States, 146 Ct.Cl. 254, 173 F.Supp. 355, 357 (1959), the court found reciprocity between the government of the Republic of Latvia in exile and the United States even though the former country did not maintain courts, but rather, determined administratively claims against the state. The court noted that the Republic of Latvia, which had been invaded by forces of the U.S.S.R., was still recognized by the United States and the two countries had concluded a treaty prior to the invasion permitting American citizens free access to Latvian courts. Id. It concluded that it would be a "harsh construction of section 2502" to deny Latvian citizens access to the Court of Claims simply because the state of affairs required all claims brought against the Latvian government, including those brought by American citizens, to be adjudicated administratively. Id. The court added that such a construction would also deny the force of a continuing international agreement between the two countries. Id.

Thus, precedent cautions, if not compels, us to refrain from interpreting the Reciprocity Act rigidly in circumstances where there is evidence that United States citizens may prosecute claims in the home courts of a foreign national seeking to redress grievances against the United States in the Court of Federal Claims. Equal treatment is the paramount requirement of the Reciprocity Act. Reciprocity is not defeated by a modicum of political interference from the foreign sovereign, by the differing extent to which a foreign sovereign has waived immunity from suit, or even by the nonexistence of a court system in the foreign country. Reciprocity will lie between the United States and a foreign nation so long as American citizens may sue the foreign sovereign on the same terms as native citizens.

II

With this background in mind, we turn now to the merits of this appeal. The plaintiffs maintain they were receiving retirement annuity checks from the government when they each...