U.S. Litigation Over Cuba Medical Mission Program

On November 30, 2018, five Cuban doctors who had been on Cuban medical missions in Brazil filed a class action against PAHO alleging that it had “collected over $75 million since 2013 by enabling, managing, and enforcing illegal human trafficking [in Brazil] of Cuban medical professionals,” who were paid “10% or less of the fees the Brazilian Government paid PAHO for their services, while PAHO paid at least 85% to the Cuban Government” and retained 5% for its services. The 85-page complaint alleges violations of the U.S. Trafficking Victims Protection Act (18 U.S.C. sec. 1589 and 1590); and the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. sec. 1962).[1]

On December 25, 2019, PAHO filed a motion to transfer the case from the U.S. District court for the Southern District of Florida to the U.S. District Court for the District of Colombia, which was denied by the U.S. Magistrate on May 23, 2019, and without explanation the docket sheet ends on July 2, 2019 with an entry for an Order setting the hearing on the transfer motion for July 18, 2019.

That status of the case is correct, according to a January 22, 2020, report by the Cuba Money Project, because plaintiffs’ counsel has not attempted to serve process on PAHO under 28 U.S.C. sec. 1330(b), 1608.[2]

Although PAHO never responded to the Complaint or Amended Compliant in the federal court in Miami, its motion to transfer the case to the federal court in the District of Colombia stated that after transfer it would file a motion to dismiss the complaint and amended complaint on the ground that PAHO is immune from this lawsuit. In addition, PAHO summarized the bases for its immunity claim as follows: [3]

• The U.S. Foreign Sovereign Immunities Act’s section 1330(b) “is the exclusive venue provision for cases against foreign states and, by extension via the International Organizations Immunities Act, designated International Organizations such as PAHO. . . [and provides] venue in this case is proper, if anywhere, only in the U.S. District Court for the District of Columbia.”
•   Moreover, “PAHO enjoys both absolute immunity under international law, 21 U.S.T. 1418 (Convention on Privileges and Immunities of the United Nations), and all of the immunities “from suit and every form of judicial process” enjoyed by foreign governments under the Foreign Sovereign Immunities Act (FSIA), 22 U.S.C. § 288a(b).”

More recently the Wall Street Journal’s anti-Cuba columnist, Mary Anastasia O’Grady, focused on Cuba’s now discontinued medical mission to Brazil and to this lawsuit. She merely said this lawsuit is still in the pre-trial stage, and PAHO’s motion to transfer the case to the District of Colombia is pending.[4] That technically is true, but reveals a failure to investigate.

This blogger as a retired attorney has not tried to verify PAHO’s immunity claim or to ask plaintiffs’ counsel why they have not proceeded with the case, but the most plausible explanation is that they concluded that they had little chance of defeating the immunity defense.

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[1] Class Action Complaint, Rodriguez v. Pan American Health Organization, Case 1:18-cv-24995-DPG (S.D. FL Nov. 30, 2018); First Amended Class Action Complaint, Case 1:18-cv-24995-DPG (S.D. FL  Dec. 26, 2018.

[2] Was lawsuit over Cuban doctors a publicity stunt?, Cuba Money Project (Jan. 22, 2020).

[3] Putative Defendant Pan American Health Organization’s Objections to and Appeal from Magistrate Judge’s Denial of Motion To Transfer This Action to the District of Columbia, Rodriguez v. Pan American Health Organization, Case NO. 1-18-cv-24995-DPG (S.D. Fla. June 6, 2019).

[4] O’Grady, The U.N. and Human Trafficking, W.S.J. (Jan. 26, 2020).