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Lawmakers Have Cuba in Mind in Supreme Court Brief

They argue case could affect how Congress writes legislation

Rep. Ileana Ros-Lehtinen, R-Fla., is part of a group of lawmakers urging the Supreme Court to hear them out on a case that affects common and international law. (Tom Williams/CQ Roll Call file photo)
Rep. Ileana Ros-Lehtinen, R-Fla., is part of a group of lawmakers urging the Supreme Court to hear them out on a case that affects common and international law. (Tom Williams/CQ Roll Call file photo)

A bipartisan group of mostly Florida lawmakers wants the Supreme Court to side with fishermen and farmers from India in a dispute about a coal-fired power plant, since the decision could affect similar potential claims related to Cuba.

Seven members of Congress, led by Rep. Ileana Ros-Lehtinen, R-Fla., who came to the United States from Cuba as a child a year after Fidel Castro took power, filed a brief in a case now before the court. In it, they urge the justices to allow lawsuits against U.S.-based international organizations such as the one in the India case.

But the lawmaker brief never mentions Cuba, and Ros-Lehtinen’s office repeatedly declined this week to explain why she spearheaded the brief and got other lawmakers to join it.

Instead, the brief sticks only to arguments about how the Supreme Court’s decision could make it more difficult for Congress to craft laws — an issue that did come up during oral arguments Wednesday in the case.

The Cuba angle is what makes the case of interest to the Florida lawmakers and Rep. Jeff Duncan, R-S.C., who joined the brief because he has been active in Cuba policy issues, a spokeswoman said. Also joining the brief were Florida Democratic Sen. Bill Nelson, Republican Reps. Mario Diaz-Balart and Carlos Curbelo, and Democratic Reps. Alcee L. Hastings, Debbie Wasserman Schultz and Darren Soto.

The lawsuit before the court could affect potential claims of Cuban doctors who now live in the United States against the Pan-American Health Organization for a program that brings Cuban doctors to Brazil, a senior Democratic aide said. The Cuban government has allegedly forced doctors to go abroad to work and then has kept most of the money, the aide said.

Brazil channels payments for doctors through the PAHO, a Washington-based branch of the World Health Organization, which then pays the Cuban government, according to a 2013 article in the Washington Post.

In the current case, the Supreme Court is weighing whether U.S.-based international organizations — which have multiple countries as members and have a variety of goals such as health care or economic development — can be sued for their role in funding projects in other nations.

The International Finance Corporation, which loaned $450 million to finance a power plant in India, contends that a 1945 federal law (PL 79-291) gives them immunity from a lawsuit that seeks damages related to the environmental fallout of the project. A lower court in Washington, D.C., where numerous organizations are based, sided with the IFC and dismissed the case.

The lawmaker brief argues that Congress narrowed the immunity of international organizations in a 1976 law (PL 94-583) that would allow lawsuits related to the commercial activities of international organizations.

If the court decides for the IFC, the brief states, it would call into question a longstanding way for Congress to simplify complex areas of the law by writing laws with dynamic references instead of static references. That means that lawmakers can write laws that reference other bodies of law to “couple” them and “to have them evolve in tandem.”

Jeffrey Fisher, an attorney for the fishermen and farmers who brought the case, brought up that issue Wednesday at oral arguments. He told the justices that the IFC had argued certain references are static and that could disrupt federal laws about lawsuits, piracy, evidence and equal access to justice.

“I could go on and on with federal statutory regimes that reference common law in exactly the same way the statute does here,” Fisher said.

The justices on Wednesday gave few hints about how they might rule, but some aired concerns that allowing such lawsuits could prompt the organizations — and their billions of dollars — to relocate from the United States.

The court will rule on the case before the end of the term at the end of June.

The case is Budha Ismail Jam, et al., v. International Finance Corporation, Docket No. 17-1011.

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