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A federal appeals court has cleared the way for Cuban nationals who once worked as U.S. merchant mariners to proceed with their class action suit seeking pension payments that have been frozen since 1963 by the U.S. embargo against Cuba. On Dec. 4, the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., ruled in Teresa Alen Ferreiro et al. v. United States that a lower court must hold a full hearing on the issue of whether Cuban citizens have the right to seek redress in U.S. courts. “We’re still reviewing the court’s ruling and no determination has been made as to what we’re going to do next,” said U.S. Justice Department Spokesman Charles Miller. Thousands of the retired U.S. government employees, some U.S. citizens who live in Cuba and thousands of their heirs now can press ahead with their pension claims in the U.S. Court of Federal Claims in Washington, D.C. The two South Florida lawyers who represented the plaintiff class, Charles P. Randall and Carlos Enriquez, said the class includes as many as 5,000 people, including family members. They estimated that the government owes the plaintiffs $10 million to $20 million. Many of the plaintiffs served in the U.S. military during World War II and received veterans’ benefits prior to the embargo. Treasury ordered the payments discontinued after the embargo was established, saying the U.S. could not be assured that the money would be received by the retirees. Randall, of Boca Raton, and Enriquez, of Miami, filed the class action suit on behalf of the former federal workers in December 2000. In October, the U.S. Treasury decided that despite the embargo, dozens of retired Cubans who formerly worked at the Guantanamo Bay naval base will be able to collect at least partial U.S. pensions once again. The payments will be limited to $300 per quarter, under U.S. embargo rules. But the claims are being processed and the amounts owed are being placed in individual accounts for the recipients. The retired base workers are part of the class action. Their claims are now being processed. Left undecided in that Treasury decision was whether the other plaintiff groups in the litigation may collect their pensions. Those groups include Cuban nationals who served in the U.S. Merchant Marine and American military veterans who have chosen to live in Cuba. The key legal issue in the appeal before the U.S. Court of Appeals for the Federal Circuit was whether reciprocity exists between the judicial systems of the two countries. In other words, can a U.S. citizen expect fair treatment in the courts in Cuba? If not — which is what the U.S. State Department argued — Cubans may not seek relief in U.S. courts. The Court of Federal Claims, basing its decision on the State Department opinion, shot down the Cuban nationals’ pension payment request summarily. But the appellate court vacated that ruling and remanded the case to the claims court for a full hearing on the reciprocity issue. Despite their appellate victory this month, Enriquez said the plaintiff class still faces a tough challenge on the judicial reciprocity issue, at least partly because there are no recent legal precedents. The plaintiff attorneys are researching common law that dates from feudal times and the rule of the crown in England. Some of the precedents arose from legal conflicts between England and the United States after the American colonies broke free of the mother country. “A lot of the case law is archaic, but still good law,” Enriquez said. “We’re talking about the reciprocity issue of a time, when the U.S. government and England were not allies.” To win their reciprocity argument, the attorneys plan to argue that while there may be Cuban government interference in that country’s courts, Americans are at no more a disadvantage than anyone else in those courts, he said. Enriquez stressed that in arguing that there is judicial reciprocity between the two countries, he’s not lending support to Fidel Castro’s government. “People may think we are defending the Cuban judiciary system,” he said. “We are not. Mr. Randall and I are merely defending our clients’ rights to collect what is rightfully theirs. This should not be a political case, though I know it has political connotations.” “Our contention is that the U.S. embargo is really meant to be against the Cuban government,” he said. “It shouldn’t hurt Cuban nationals who were loyal to this country and who worked for this country.” Joe Garcia, executive director of the Cuban American National Foundation in Miami, said the retirees, their families and heirs deserve to collect their pensions. But at the same time, he said, there’s no reciprocity and no way to justify the Cuban judicial system. Overall, he added, the case illustrates the hypocrisy of U.S. policy toward Cuba, where Washington maintains an embargo against the island nation while simultaneously allowing millions in annual payments to flow there.

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