# Appendix — Asociacion de Reclamantes v. United Mexican States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1882%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1985 - **Citation:** 470 U.S. 1051 ## Text IN THE Supreme Court of the United Siates OCTOBER TERM, 1984 ASOCIACION DE RECLAMANTES, AMINTA ZARATE, LUIS RIOJAS, FELIPA FLORES BENAVIDEZ, MARIA AGUIRRE DE SCHULTZ, NIEVES GUERRERO CHAPA, SANTOS ZARATE PRIETO, Petitioners, THE UNITED MEXICAN STATES, Respondent. APPENDICES TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ROBERT J. SALAZAR RUSSELL E. VIGIL 650 Lawrence Street Center 1380 Lawrence Street Denver, CO 80204 MITCHELL ROGOVIN * GEORGE T. FRAMPTON, JR. Vicki C. JACKSON ROGOVIN, HUGE & LENZNER A Professional Corporation 1730 Rhode Island Ave., N.W. Washington, D.C. 20036 Of Counsel (202) 466-6464 JOAQUIN G. AVILA JESS J. ARAUJO Morris J. BALLER DIMARCO & ARAUJO MEXICAN-AMERICAN LEGAL A Professional Law DEFENSE & EDUCATION FUND Corporation 28 Geary Street 1015 North Broadway San Francisco, CA 94108 Santa Ana, CA 92701 * Counsel of Record WILGON - Eres PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001 , bl { INDEX TO APPENDICES Page . Opinion of the Court of Appeals, dated June 5, RT il USE 8. Pare ee Ce Oe ne Pe la . Opinion and Order of the District Court ~................. 17a . Judgment and Rehearing Orders of the Court of RII sen catcciccaekateitl tae dahcdalldddaninimnentdeatpidaiseetanicwlavens 39a SII + scencehiseihchighanaiustdibaasebdisastbabssiiediantanaiaitie@eieeisdandidineionton 39a Order Denying Rehearing En Banc ........................... 4la Order Denying Rehearing By Panel -......................... 42a . Petitioners’ Amended Complaint ......................-.....--. A8a . Statutory, Constitutional and Treaty Provisions...... 77a Foreign Sovereign Immunities Act, 28 U.S.C. 88 1880, 1602, 1604, 1605 (a) ....................-.-cccccseeeenoee 77a-79a a aicainpndinnanasadios 80a I eee onienalammeiiebeonandintis 88a Fifth and Fourteenth Amendments .......................... 94a la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 83-1596 ASOCIACION DE RECLAMANTES, et al., Appellants Vv. THE UNITED MEXICAN STATES Appeal from the United States District Court for the District of Columbia (Civil Action No. 81-02299) Argued March 23, 1984 Decided June 5, 1984 Vicki C. Jackson with whom Robert J. Salazar, Russell E. Vigil, Mitchell Rogovin, George T. Frampton, Jr., and Jess J. Araujo were on the brief, for appellants. John H. Shenefield with whom Eric L. Richard and D. Stephen Mathias were on the brief, for appellee. Before: EDWARDS and SCALIA, Circuit Judges, and SWYGERT,* Senior Circuit Judge for the United States Court of Appeals for the Seventh Circuit. Opinion for the Court filed by Circwit Judge SCALIA. * Sitting by designation pursuant to 28 U.S.C. § 294(d). 2a Concurring statement filed by Circuit Judge EDWARDS. SCALIA, Circuit Judge: This case comes before us on appeal from an order of the District Court dismissing appellants’ complaint for lack of subject matter juris- diction pursuant to Fed. R. Civ. P. 12(b) (1). It presents the issue of interpreting the “immovable property” excep- tion and the “tortious act” exception to sovereign im- munity contained in the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1605(a) (4) & (5) (1982). I Appellants, six individuals and the Asociacion de Re- clamantes, claim’ to be or to represent the successors in interest to recipients of 433 land grants from the King of Spain or the Republic of Mexico, covering some 12 million acres now located in the State of Texas, valued in 1925 at close to $200 million. The original grantees, Spanish and Mexican citizens, were allegedly driven from their land and divested of title by the United States and Texas in the period following the Mexican-American War. Those landowners, whose rights to title and use of their Texas land were explicitly protected by the Treaty of Guadalupe Hidalgo, Feb. 2, 1948, United States-Mexico, 9 Stat. 922, T.S. No. 207, Art. VIII, may have possessed, at that time, actionable claims against the United States for the restoration of title and possession. The complaint does not allege that those claims were ever pursued in United States courts. Rather, in the early 1920’s, a new Mexican government, headed by Gen- eral Obregon, espoused the claims and asserted them against the United States in negotiations between the two sovereigns. On September 8, 1923, Mexico and the United 1 Although for purposes of a Rule 12(b)(1) motion we need not accept as true the plaintiffs’ version of controverted juris- dictional facts, Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir. 1981), appellee has not contested the historical account prof- fered by appellants and set forth here. 3a States concluded the Treaty on General Claims, United States-Mexico, 43 Stat. 1730, T.S. No. 678, which em- power a General Claims Commission to evaluate the claims of each country’s nationals raised in the negotia- tions. Mexico filed with the Commission all 433 land claims at issue here, but by 1936, when the authority to hear claims expired,” none had been evaluated. In 1938, new disputes between Mexico and the United States arose when Mexico expropriated without compen- sation oil-producing property owned by American citi- zens. Negotiations between the two sovereigns were re- sumed, and the 433 land claims were again on the bar- gaining table. Those negotiations culminated in the Treaty on Final Settlement of Certain Claims, United States-Mexico, 56 Stat. 1347, T.S. No. 980 (Nov. 19, 1941) (the “1941 Treaty”). By the terms of that treaty, Mexico released the United States from liability on all claims—including the 433 Texas land claims—asserted by Mexico against the United States. In addition, Mex- ico paid the United States a lump-sum $40 million and was absolved of liability on all claims maintained against it. Each sovereign assumed the obligation to satisfy the espoused claims of its own nationals, which the United States did within seven years. Shortly after the Treaty was signed, Mexico acknowledged its obligation by presi- dential decree, Decree of President Manuel Avila Ca- macho, Dec. 9, 1941, published in El Diario Oficial, Dec. 31, 1941, and assurances have been made by the Mexican government to individual appellants as recently as 1970 that compensation would be forthcoming. 2 The General Claims Commission heard cases until 1931. Pur- suant to the General Claims Protocol of April 24, 1934, United States-Mexico, 49 Stat. 3531, E.A.S. No. 57, claims not decided by the Claims Commission were transferred to two appraisers, whose authority to evaluate the claims was to last until June 30, 1936. 4a Nevertheless, over forty years after the 1941 Treaty, Mexico has failed to pay a single claim. Nor has it legislated any mechanism for adjudicating or funding the claims. In this action appellants seek damages from the Mexican sovereign for its uncompensated taking of the Texas land claims. They also ask the court to place all monies paid in satisfaction of Mexico’s liability into a fund, and to supervise its distribution. Appellants allege jurisdiction under the Foreign Sovereign Immunities Act of 1976 (“FSIA’”’), 28 U.S.C. §§ 1830, 1602-1611 (1982), which creates exceptions to soverign immunity for ac- tions involving rights to immovable property located within the United States and for actions for torts com- mitted within the jurisdiction of the United States. The District Court found jurisdiction lacking and dis- missed the complaint. The District Court also held, al- ternatively, that the Act of State doctrine would prohibit adjudication of the merits of the complaint even if juris- diction existed. We agree that the FSIA grants im- munity to Mexico in this matter and affirm the District Court for that reason. We have no need—and, because we lack jurisdiction, no power—to reach the Act of State issue. II The FSIA provides the sole basis for subject matter jurisdiction over suits against foreign states. 28 U.S.C. $§ 1330, 1604. The Act was intended to codify the so- called “restrictive” principle of sovereign immunity, un- der which foreign sovereigns are accorded immunity with regard to their sovereign or public acts (actiones jure imperii), but not with respect to their commercial acts (actiones jure gestionis), and in addition to withhold immunity for certain narrowly defined public acts for which local adjudication was deemed imperative (e.g., traffic accidents caused by employees and officials of a foreign embassy). H.R. Rep. No. 1487, 94th Cong., 2d Sess. 7, 20-21, reprinted in 1976 U.S. CoDE Conc. & AD. 5a NEws 6605, 6619-20 (hereinafter “House Report”).* The Act sets forth as the general rule that “a foreign state shall be immune from the jurisdiction of the courts of the United States,” 28 U.S.C. § 1604; and then creates excep- tions to that immunity for specific categories of cases. Appellants do not allege that Mexico’s conduct in this case was commercial or private in nature. Thus, the largest and most important exception to immunity, for a foreign sovereign’s commercial activities having some nexus with the United States, 28 U.S.C. § 1605(a) (2), is not at issue. Instead, appellants stake their case on two relatively minor exceptions to immunity that apply to public as well as private acts. We consider each of these in turn. A. The “Immovable Property” Exception—§ 1605 (a) (4). Appellants contend that their causes of action against Mexico fall within the exception to foreign sovereign im- munity for “any case in which .. . rights in immovable property situated in the United States are in issue.” 28 U.S.C. § 1605(a) (4). Appellants do not now seek to have any land restored to them; rather, they argue that their rights to be compensated by Mexico for its taking of their prior rights (against the United States) to title and possession of the 433 tracts in Texas constitute “rights in immovable property” for purposes of this exception. The issue is one of statutory interpretation: whether Con- gress, in enacting the FSIA, intended the phrase “rights 8 Amid the confusion of the last few days of the 94th Congress two identical foreign sovereign immunity bills were passed and presented to the President for signature. The President signed the House bill, H.R. 11315, and vetoed the Senate bill, S. 3553, for technical reasons. (The President expressed doubt that the Senate bill had been properly enrolled because the Senate, after it had passed the House bill, had attempted unsuccessfully to rescind the prior passage of its own bill. 122 Conc. Rec. 35082 (1976).) For this reason, we do not cite the Senate Report which is, in any event, identical to its House counterpart. 6a in immovable property” to be broad enough to encompass rights to compensation traceable historically to disputes over title to American land, which disputes have been settled by international agreement. The District Court apparently agreed with appellants’ broad reading of the exception, believing jurisdiction to exist if the suit “involves an action to quiet title or to recover money derivative of real property rights.” Asociacian [sic] de Reclamantes v. The United, Mexican States, 561 F. Supp. 1190, 1196 (D.D.C. 1983) (emphasis added).* Appellants support tnat expansive reading, ar- guing that the statutory language “rights in immovable property,” is broad enough to accommodate their “in- terest” in the Texas land. They point out that the same term is elsewhere afforded a scope which they assert is expansive enough to include their compensation claims: e.g., at civil law (where it includes leases, licenses, rents, mineral rights, easements, royalties and profits, LA. CIv. CopE ANN. art. 535 (West 1980)) and in the law of eminent domain (where the compensation awarded for the compulsory conversion of real estate “will be treated as real estate until the owner, being sui juris, accepts it as personal property,” 1 G. THOMPSON, COMMENTARIES ON THE MODERN LAW OF REAL PROPERTY, §19 at 83 (1980 Replacement) (footnote omitted) ). Appellants also claim to find support for a broad interpretation in the 4The District Court held that even this broad reading of the immovable property exception did not cover this suit, and that the claims involved mere “intangible property rights created through the diplomatic process,” because appellants had not alleged that they (or, presumably, their predecessors in interest) had title to the land in 1923, when the United States-Mexico claims negotiations took place, or that they had attempted to regain title in a legal forum prior to that time. 561 F. Supp. at 1196-97. We reject that analysis because such allegations did appear in an Exhibit to the Complaint, see Amended Complaint, Exhibit B, which is sufficient. Fed. R. Civ. P. 10(c); Mountain Fuel Supply Co. v. Johnson, 586 F.2d 1875, 1882 (10th Cir. 1978), cert. denied, 441 U.S. 952 (1979). Ta legislative history of the FSIA: “[A] foreign state can- not deny to the local state the right to adjudicate ques- tions of ownership, rent, servitudes, and similar matters . . -’ House Report, supra, at 20, 1976 U.S. CoDE Cone. & Ap. NEWS 6619. Admittedly, the term “rights in immovable property” is an imprecise one, susceptible of as many Gifferent meanings as there are areas of law for which that char- acterization of an interest may be relevant. See 1 G. THOMPSON, supra, at $19. Our job, however, is not to give the term the most expansive reading possible, nor to extract from different sources of law an artificial con- sensus definition of the term, but to determine what Con- gress meant by the language in this particular statute. Our reading of the legislative history and understanding of the purposes of the FSIA counsel a far narrower con- struction of the term than that advanced by appellants. The immovable property exception was enacted to codify, with minor modifications not relevant here, the pre-existing real property exception to sovereign im- munity recognized by international practice. See House Revort, supra, at 20, 1976 U.S. CopE Cone. & AD. NEWS 6620, referring to Letter from Jack B. Tate, Acting Legal Adviser, U.S. Dept. of State, 26 Dept. of State Bulletin 984 (1952), reprinted in Jurisdiction of U.S. Courts in Suits Against Foreign States: Hearings on H.R. 11315, Before the Subcomm. on Administrative Law and Governmental Relations of the House Comm. on the Judiciary, 94th Cong., 2d Sess. 54-55 (1976). That prac- tice declined to extend the immunity of a foreign sover- eign to “an action to obtain possession of or establish a property interest in immovable property located in the territory of the state exercising jurisdiction.” RESTATE- MENT (SECOND) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 68(b) (1965). Accord, RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW OF THE UNITED STATES (REVISED) § 455(1)(c) & comment b (Tent. Draft No. 2, 1981). Thus, a foreign sovereign was not 8a immune in an eminent domain proceeding involving its property, but was immune in a negligence suit for in- jury suffered by a private individual while on its prop- erty. RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW OF THE UNITED STATES, supra, at § 68 comment d. The origin of the traditional exception limited to ques- tions involving property interests or possession is self- evident. A territorial sovereign has a primeval interest in resolving all disputes over use or right to use of real property within its own domain. As romantically ex- pressed in an early treatise: A sovereignty cannot safely permit the title to its land to be determined by a foreign power. Each state has its fundamental policy as to the ‘tenure of land; a policy wrought up in its history, familiar to its population, incorporated with its institutions, suitable to its soil. 1 F. WHARTON, CONFLICT OF LAWS § 278 at 636 (3d ed. 1905). A subsidiary concern, less instinctive and mysti- cal, is that courts are simply not well equipped to decide property interests or rights to possession with regard to land outside their jurisdiction, particularly land located in a foreign nation. See Reasor-Hill Corp. v. Harrison, 220 Ark. 521, 523, 249 S.W.2d 994, 995 (1952). These considerations produced not only the exception to sover- eign immunity we are here discussing, but also the “local action rule,” which makes the locality’s power exclusive and deprives other courts of jurisdiction to settle ques- tions involving real estate. Griner v. Trevino, 207 S8.W. 947, 949-50 (Tex. Civ. App. 1918); 1 G. THOMPSON, supra, $4 at 24 (citing cases). The latter, like the for- mer, is limited to questions that directly implicate inter- ests in the property or rights to possession. Compare, ¢.g., Pace v. Ott, 189 Okla. 230, 231, 115 P.2d 253, 255 (1941) (action for damages to land sustained by oil and salt water pollution is not a local action), and Wise v. Isen- hour, 9 N.C. App. 237, 239, 175 S.E.2d 772, 773 (1970) 9a (action for damages against builders for breach of con- struction contract is not a local action), with, e.g., Living- ston v. Jefferson, 15 F. Cas. 660 (C.C.D. Va. 1811) (No. 8,411) (action for trespass is a local action), and Wilson v. Kryger, 29 N.D. 28, 34, 149 N.W. 721, 723-24 (1914) (action to determine adverse claims to real property is a local action). See also 21 C.J.S. Courts §§ 45-49 (1940). The two doctrines are obviously complementary, since the local action rule without the real property exception to sovereign immunity would mean that real property dis- putes involving foreign sovereigns could not be resolved in any court. That § 1605(a) (4), like the traditional real property exception it was intended to codify, is limited to disputes directly implicating property interests or rights to pos- session is consistent with the examples of its application mentioned in the House Report and cited by appellants: suits involving “questions of ownership, rent, servitudes,” House Report, supra, at 20, 1976 U.S. Cope Conc. & Ap. News 6619." It is also consistent with the single case SIt is true that an action for rent does not always call into question either ownership or possessory rights—though the remedy for nonpayment certainly does where the tenant is still in posses- sion. The parties have not cited, and we have not found, any cases either before or after the FSIA dealing with the application of sovereign immunity to actions for rent against foreign sovereigns. However, the related local action rule has been applied to rent suits. According to Tiffany, it would apply or not apply depending upon whether the suit involved only assignees of the parties to the original lease (and was thus based only on privity of estate) or rather involved the original parties to the contract. 3 H. TIFFANY, REAL PROPERTY §911 at 582 (3d ed. 1939). If this is in fact a general distinction, it is assuredly not one that all courts have followed. Some, for example, appear to apply the local action rule to only those rent suits in which title is in dispute. See, ¢.g., Prospect Point Land Improvement Co. v. Jackson, 109 N.J.L. 385, 387, 162 A. 576, 577 (1982); California v. Royal Consolidated Mining Co., 187 Cal. 343, 351, 202 P. 183, 186-87 (1921). We need not inquire further into this fascinating issue; or into the more consequential issue of whether the FSIA was intended merely to 10a cited by appellants interpreting § 1605(a) (4), County Board v. Government of the German Democratic Re- public, Civil No. 78-293-A (E.D. Va. Sept. 6, 1978), reprinted in 17 Int’l Legal Materials 1404 (1978). In that case a county taxing authority in the United States sued a foreign sovereign for delinquent real estate taxes. An amendment to the complaint added a prayer for de- claratory judgment that the property in question was subject to the state’s statutory tax lien in favor of the county. On the issue of amenability to suit under § 1605 (a) (4) the court held: Whether or not the issue of rights in immovable property is present under the original pleadings, after the amendment of pleadings being allowed below, the issue will be a specific matter for the court’s attention in determining the question of the county’s lien.... Id. at 1405, To see that appellants’ claims against Mexico are not of the character involving property interests or posses- sion to which the § 1605(a) (4) exception attaches, it is useful to review the manner in which those claims origi- nated. Under well-established principles of international law, a sovereign possesses the absolute power to assert the private claims of its nationals against another sover- eign. See L. HENKIN, FOREIGN AFFAIRS AND THE CON- codify the preexisting exception to sovereign immunity in rent cases (whatever the scope of that might have been), or to extend that exception to all rent cases, or perhaps (though it seems un- likely) by the mere mention of the single word “rent” ,in the legis- lative history to create an entirely new exception where none existed before. The point for present purposes is that actions for rent frequently involve issues of title and possession, and have been given distinctive jurisdictional treatment for that reason. Reference to such actions in the legislative history of the FSIA thus does not establish any departure from the traditiona! principle that the real estate exception to sovereign immunity is bounded by concern for those issues. lla STITUTION 262-63 (1972); RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW OF THE UNITED STATES, supra, at §212. This authority to espouse claims does not de- pend on the consent of the private claimholder, id. at § 213, and the fact that a claim has been espoused pro- vides a complete defense for the defendant sovereign in any action by the private individual, id. at § 205. Once it has espoused a claim, the sovereign has wide-ranging discretion in disposing of it. It may compromise it, seek to enforce it, or waive it entirely. See Dames & Moore v. Regan, 453 U.S. 654, 680 (1981); Administrative Deci- sion No. V (United States v. Germany), Mixed Claims Commission, 1924, [1923-25] Ad. Decisions and Ops. 145, 190, 7 U.N. Rep. Int’] Arb. Awards 119, 152. Final settlement between the sovereigns “wipe[s] out the under- lying private debt,” L. HENKIN, supra, at 262, and re leases the defendant sovereign from all obligation except such as the settlement agreement may provide. In the present case, it may well be that Mexico, in settling or waiving the private claims, obligated itself under its own law to its nationals whose claims it had asserted. This obligation, however, differs from the legal obligation that arose from the wrongful taking (wrongful under the law of the United States or Texas or under the Treaty of Guadalupe Hidalgo) and that was settled by the 1941 Treaty, in several crucial respects: it is owed by a different sovereign and derives from the application of different law to entirely dissimilar and distinct sovereign acts. Against this background it is clear that the compensa- tion rights asserted here are not remotely “rights in im- movable property” within the meaning of § 1605(a) (4). They are not property interests in real estate, such as a leasehold, easement or servitude, nor possessory rights, nor even rights to payment of money secured by an in- terest in land. Neither the title to, nor the use of the Texas lands can conceivably be affected by the outcome of this suit. Appellants’ predecessors in interest possessed a 12a claim to title and possession, undoubtedly a “right in immovable property” at the time. Those property claims, however, were extinguished by the 1941 Treaty. That other obligations may have arisen in connection with the Treaty does not alter the fact that questions of title, possession and even compensation as between the original disputants, the United States and appellants’ predecessors in interest, ceased to exist after 1941. It is true that the issue whether appellants’ predecessors in interest ever in fact held title to these lands would, presumably, be relevant to their entitlement to compensation from Mex- ico. But that issue is, as far as the United States is concerned, purely of historical interest, having no bearing upon present property interests or possessory rights in its territory. The principal state interest that underlies the real property exception to sovereign immunity is there- fore not implicated—as is evident from the fact that the 1941 Treaty, by providing for compensation of the private claimants by Mexico, implicitly acknowledged that state’s right to resolve this historical point. Appellants rely on Comegys v. Vasse, 26 U.S. (1 Pet.) 193 (1828), for the proposition that “payment [of a claim] under a claims settlement treaty ... [is properly viewed as] an indemnification for the violation of a pre- existing property right.” Appellant’s Brief at 15. That is undoubtedly so, but does not resolve the issue here: whether the right to indemnification is in the nature of a real property right for purposes of the FSIA. In Comegys the United States was in the position of Mexico here: It had espoused claims against Spain and settled them, producing an obligation on its part (under the terms of the settlement treaty) to indemnify the original claim-holders. The case involved a claim-holder who had made an assignment in bankruptcy before the United States had espoused the claim; and the issue was whether the indemnification should be paid to him or to the as- signee. The Court held, reasonably enough, that the indemnification was not a “donation or gratuity,” 26 13a U.S. at 217, but was rather sufficiently attributable to the claim against Spain that it should go where that went—to the assignee in bankruptcy. Obviously, to say that the second claim goes to the holder of the first is not to say that it is identical with the first—either in amount or in its general character as a “real estate” claim— much less in its character as a “right in immovable prop- erty” for the specific purpose of the FSIA.® In summary, while appellants may possess claims against Mexico for its uncompensated taking of previously held Texas land claims, resolution of those claims will not in any conceivable way affect property interests in, or rights to possession of, land located in the United States. Accordingly, the claims are not “rights in immovable property,” within the meaning of 28 U.S.C. § 1605(a) (4). B. The “Tortious Act” Exception—§ 1605(a) (5). Appellants assert alternatively that jurisdiction over Mexico exists under § 1605(a) (5). That paragraph cre- ates an exception to foreign sovereign immunity for cases not otherwise encompassed [by the exception for a foreign state’s commercial activity], in which money damages are sought against a foreign state for per- sonal injury or death, or damage to or loss of prop- erty, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employ- ment.... ® Comegys also differed from the present case in that the claim had already been adjudicated by an international commission and found to be meritorious before it was espoused. Thus, the holding does not even establish that an espoused but unadjudicated claim such as existed here necessarily leaves any post-settlement rights in the original claimant. Cf. Dames & Moore v. Regan, supra, 453 U.S. at 688 n.14 (Court declines to decide whether U.S. citizen has a taking claim against United States when his unadjudicated private claim is waived or settled for less than fair value). l4a (Emphasis added.) Appellants claim that Mexico’s failure to compensate them for its taking and use of their Texas land claims is a violation of international and domestic (presumably Mexican) law, and thus wrongful and “tortious” within the scope of § 1605(a) (5). We need not pause to consider whether Mexico has en- gaged in tortious conduct under applicable law, or which law might be applicable, because it is clear that the con- duct complained of lacks the required nexus with the United States.’ Although the statutory provision is sus- ceptible of the interpretation that only the effect of the tortious action need occur here, where Congress intended such a result elsewhere in the FSIA it said so more ex- plicitly. See 28 U.S.C. § 1605(a) (2) (immunity withheld for acts “outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States”). The legislative history makes clear that for the exception of § 1605(a) (5) to apply “the tortious act or omission must occur within the jurisdiction of the United States.” House Report, supra, at 21, 1976 U.S. CoDE Conc. & AD. NEws 6619. We have recently so held. Persinger v. Islamic Republic of Iran, 729 F.2d 835, 842 (D.C. Cir. 1984). It is not contended in the present case that any of Mexico’s acts that could conceivably be regarded as hav- ing been committed on United States soil—the espousal, presentation and settlement of the claims—was in and of itself tortious. The gravamen of appellants’ tort claim is not these acts but the subsequent failure to compensate, 7™The District Court found § 1605(a)(5) inapplicable because the Mexican conduct complained of fell within the “discretionary act” exception to the tort exception. 28 U.S.C. § 1605(a) (5) (A) (“[the tort exception] shall not apply to—(A) any claim based upon the exercise or performance or the failure to exercise or per- form a discretionary function regardless of whether the discretion be abused”). We also do not reach that issue. 15a an omission which must be deemed to oceur in Mexico. Even if the allegedly wrongful failure to compensate had the effect of retroactively rendering the prior acts on United States soil tortious, at the very least the entire tort would not have occurred here, see In re Sedco, Inc., 543 F. Supp. 561, 567 (S.D. Tex. 1982) (“the tort, in whole, must occur in the United States”), and indeed we think its essential locus would remain Mexico. The pri- mary purpose of the “tortious act or omission” exception of § 1605(a) (5) was to enable officials and employees of foreign sovereigns to be held liable for the traffic acci- dents which they cause in this country, whether or not in the scope of their official business. House Report, supra, at 20-21, 1976 U.S. CopE Conc. & AD. NEWS 6619-20. We decline to convert this into a broad exception for all alleged torts that bear some relationship to the United States. Affirmed EDWARDS, Circuit Judge, concurring: I concur in Judge Scalia’s opinion for the panel, with one caveat. I want to make it clear that I read the holding of the opin- ion as limited by and responsive to the precise—and highly unique—case before us. In particular, I do not read the opinion to hold that, in a contemporary setting, the United States can unlawfully expropriate property legitimately owned by aliens in this country, consummate a treaty with a foreign sovereign extinguishing the aliens’ property rights without compensation or consideration, and then totally avoid responsibility under our Constitu- tion or other applicable laws of this Nation. We have no occasion to consider such a situation here and we express no view on its legality. 16a UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA September Term, 1983 Civil Action No. 81-02299 No. 83-1596 ASOCIACION DE RECLAMANTES, et al., Appellants V. THE UNITED MEXICAN STATES [Filed June 5, 1984] ORDER It is ORDERED, sua sponte, that the Clerk shall with- hold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See Local Rule 14, as amended on November 30, 1981 and June 15, 1982. This instruction to the Clerk is with- out prejudice to the right of any party at any time to move for expedited issuance of the mandate for good cause shown. FOR THE COURT GEORGE A. FISHER Clerk 17a APPENDIX B UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Civil Action No. 81-2299 ASOCIACION DE RECLAMANTES, et al., Plaintiffs, Vv. THE UNITED MEXICAN STATES, Defendant. [Filed April 20, 1983] MEMORANDUM OPINION AND ORDER I. Introduction This case is before the Court on a motion to dismiss. It involves a class action brought by the Asociacion de Reclamantes and six individual plaintiffs seeking com- pensation from the United Mexican States (‘Mexico’) for its alleged taking and conversion of certain land grant related claims possessed by plaintiffs or their an- cestors. Mexico asserts that the Court lacks subject matter jurisdiction to hear this case as well as personal juris- diction over Mexico, and that even if the Court assumes jurisdiction, the act of state doctrine precludes it from exercising its jurisdiction and resolving the controversy between the parties. Counsel filed excellent briefs in this case and their ar- guments before the Court on January 16, 1983 were ex- 18a ceedingly helpful in weighing the multitude of contested and competing issues. As the Court noted at the hearing in this case, the alleged injuries to plaintiffs are not only serious and entitled to careful review, but give the Court great concern. Mindful of those considerations, and in accordance with the opinion which follows, the Court holds that it is without subject matter jurisdiction and that the case must be dismissed. II. Facts In evaluating a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b) (1), the Court must accept as true all material facts alleged in the complaint. Williamson v. Tucker, 645 F.2d 404, 412- 13 (5th Cir. 1981) (on rehearing; Menchaca v. Chrys- ler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980), cert. denied, 449 U.S. 953 (1980); Mortensen v. First Federal Savings & Loan Ass’n, 549 F.2d 884, 891-92 (3d Cir. 1977); Airline Pilots Ass’n Int'l v. Northwest Air- lines, Inc., 444 F. Supp. 1138, 1142 (D.D.C. 1978). Only where the defendant raises a factual challenge to the jurisdictional facts in the complaint need the court look beyond plaintiff’s allegations. Jd. Here, the defendant has not challenged plaintiff’s jurisdictional facts, but rather asserts that on their face, they fail to invoke the power of this Court. Likewise, in evaluating defendant’s motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b) (6), the Court must also accept as true all material facts alleged in the complaint. Mortensen v. First Federal Savings & Loan Ass’n, 549 F.2d at 891. Plaintiffs’ claims stem, in part, from the upheaval caused by the Mexican-American War. At the cessation of hostilities, sovereignty over Texas was transferred from Mexico to the United States under the Treaty of Guadalupe Hidalgo, 9 Stat. 922, T.S. No. 207 (Feb. 2, 19a 1848). In the years which followed, plaintiffs’ ancestors, who owned land in Texas,’ were allegedly driven off their land or wrongfully divested of title by the United States, Texas, or the citizens thereof. These actions occurred in spite of provisions in the 1848 Treaty providing that the former Mexican landowners’ land grants were entitled to the protection and respect of the United States. Art. VIII, Treaty of Guadalupe Hidalgo, supra. No allegation is made that plaintiffs’ ancestors sought the return of, or compensation for, their land in a United States forum since 1848. Rather, plaintiffs’ ancestors, many of whom returned to Mexico, convinced the Mexi- can Government to pursue their claims through diplo- matic channels in the early 1920s. Under a 1923 General Claims Treaty between the United States and Mexico, 43 Stat. 1730, T.S. No. 678 (Sept. 8, 1923), the nations cre- ated a General Claims Commission to resolve all claims by citizens of each nation against the other contracting nation. The Commission was directed to quantify the number and size of the claims, and to the extent the ag- gregate claims of the citizens of either nation exceeded the other nation’s aggregate claims, the difference would be repaid sovereign to sovereign.? Each sovereign would then be responsible for providing compensation to its own citizens.* By 1940, only a few of the 483 claims sub- mitted by Mexico on behalf of plaintiffs are alleged to have been evaluated. 1 The land in question involves 433 land grants from Spain and Mexico to the ancestors of plaintiffs and consists of approximately 12 million acres of land lying principally between the Rio Grande and the Nu[el]ces River in South Texas. 2 United States citizens also had claims of expropriation or wrongful taking of property against Mexico and its citizens, in large part as a result of the Mexican Revolution. 3In 1934 the General Claims Commission was replaced by two special claims appraisers using a revised appraisal process. 20a Fueled by the expropriation of American oi! company properties in Mexico in 1938, the two sovereigns went to the bargaining table again in 1940. These negotiations allegedly included the 433 land grant claims at issue in this case, and resulted in the payment of $40 million by Mexico to the United States, an amount by which it was found the aggregate United States claims exceeded the aggregate Mexican claims. Treaty on Final Settlement of Certain Claims, 56 Stat. 1347, T.S. No. 980 (Nov. 19, 1941). Plaintiffs further allege that the total value re- ceived by Mexico (i.e., total claims against Mexico re- leased) was in excess of $193 million, and that: Mexico’s release of the United States from liability on the 433 land grant related claims, in exchange for valuable consideration, constituted a use and taking by Mexico of those claims for its own public pur- poses, including the reduction of Mexico’s financial liabilities to the United States. As a result, Mexico became obligated to pay just, effective and prompt compensation for the 433 land grant related claims. Complaint par. 29. Shortly after the treaty was signed, the then President of Mexico issued a decree acknowledging Mexico’s as- sumption of the obligation for the land grant related claims, which, in part, stated: FOREIGN AFFAIRS DEPARTMENT, DECREE BY WHICH IT IS ORDERED THAT A LAW BE ENACTED FOR THE SETTLEMENT, VALUA- TION, AND PAYMENT OF THE CLAIMS PEND- ING BETWEEN MEXICO AND THE UNITED STATES OF AMERICA. Whereas the Convention regarding claims, signed on the 19th of November of the current year, by the Governments of Mexico and the United States of America, annuls all of the Mexican Claims filed be- fore the General Claims Commission. .. . 21a Whereas it is the duty of the Government to tend to said claims of our nationals in order to satisfy them in accordance with the role played in the re- cently executed convention with our neighbor coun- try to the north and in accordance with rules of euuity .... Whereas the claims referred to have lost their in- ternational character, and have become internal obli- gations of our government.... Whereas it is necessary to have a law enacted by the honorable Congress of the Union indicating the appropriate procedure for evaluating the claims re- ferred to in this Decree, to judge them and te ascribe to them the compensation to which they are entitled, honoring the findings dictated by the international jurisdictions that have decided some of them.... Decree I. The Secretariat of Finance shall immediately proceed to study and prepare a plan, which shall be submitted to the honorable Congress of the Union, involving a law for the settlement, valuation, and payment of the Mexican claims presented to the ex- tinct General Claims Commission, established by vir- tue of the agreement between Mexico and the United States of America on September 8, 1923 .... 129 D.O. See. 5 at 1-2 (Dec. 31, 1941) (original and translation submitted as Plaintiffs’ Exh. E). Thereafter, the Secretariat of Public Finance and Credit acting through the Department of Public Debt of the Adminis- tration of Credit sent several letters to plaintiffs assur- ing them a law would be enacted and compensation paid. Plaintiffs’ Exhibits F, G & H. In addition, plaintiffs re- peatedly met with Mexican officials to discuss payment of compensation and allegedly were assured that payment was forthcoming. 22a On September 18, 1981, plaintiffs filed their initial class action in this case, and pursuant to an order of this Court filed a First Amended Complaint on December 18, 1981. On June 17, 1982, discovery was stayed pending a ruling on Mexico’s motion to dismiss filed on February 2, 1982. As of this point in time, the plaintiffs assert that no legislation providing for compensation has been enacted in Mexico and Mexico appears to agree. Mexico attached a declaration of its Attorney General stating that: (1) he is authorized to issue official declarations in the name of the Mexican government; (2) he has ex- amined the Complaint in this case; and (3) “that all acts and failures to act by officials or employees of the United Mexican States ... are a part of the official functions and would be official acts of the Mexican State carried out on its behalf and in the exercise of its sovereign im- munity.” Official Declaration of the Attorney General, Republic of Mexico (Jan. 29, 1982) (original and trans- lation attached as Exhibit A to Defendant’s Memoran- dum in Support of its motion to dismiss). III. Discussion Mexico asserts three principal grounds in support of its motion to dismiss: (1) lack of subject matter juris- diction; (2) lack of personal jurisdiction; and (3) failure to state a claim.* The question of personal jurisdiction is subsumed, however, by the first ground under the For- eign Sovereign Immunities Act (“FSIA”).® * Mexico also raises the statute of limitations as a defense, how- ever, the Court does not reach that issue due to the lack of subject matter jurisdiction over the defendant. 528 U.S.C. Sec. 1330(b) provides that: Personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have [subject matter) jurisdiction under subsection (a) where service has been made under section 1608 of this title... A joint motion and stipulation agreeing that service was proper was filed on December 4, 1981 and accepted by the Court on 23a A. Subject Matter Jurisdiction Plaintiffs allege subject matter jurisdiction under 28 U.S.C. Sec. 1330(a) and 28 U.S.C. Sec. 1331. Defendant responds that 28 U.S.C. 1330(a) is the exclusive statu- tory grant of jurisdiction, and that pursuant to its pro- visions, Mexico is immune as a sovereign from the power of this Court. The Court finds that the question of juris- diction under 28 U.S.C. Sec. 1331 is a non-issue. For if Mexico is immune under the FSIA, it is, as plaintiff con- cedes, “of no consequence whether Sec. 1331 jurisdiction exists as well.” ° The existence of subject matter jurisdiction turns on whether Mexico’s acts or omissions fall within the gen- eral rule of immunity, 28 U.S.C. Sec. 1604; or are ex- cepted from jurisdiction immunity under 28 U.S.C. Sec. 1605(a)(4) or (5). The plain language of the FSIA provides: Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be im- December 15, 1981. Therefore, all that remains to be decided is whether there is (a) subject matter jurisdiction, id., and (b) a justiciable claim under the FSIA. 28 U.S.C. Sec. 1330(c). See In the Matter of the Arbitration Between Maritime International Nominees Establishment v. Republic of Guinea, 693 F.2d 1094, 1099-1100 (D.C. Cir. 1982). * Plaintiff's Memorandum in Opposition to the Motion to Dis- miss the Complaint, at 4 n.5 (April 5, 1982). The Court notes that the greater weight of authority suggests that Sec. 1330 is the exclusive means for exercising jurisdiction over a foreign sovereign. It was enacted as part of the FSIA “to provide when and how parties can maintain a lawsuit against a foreign state...” and to ensure parties have a federal forum without needing to invoke diversity jurisdiction. H. Rep. No. 94-1487, 94th Cong., 2d Sess. 61, 18 (1976). See Maritime Int'l] Nominees v. Republic of Guinea, supra, 693 F.2d at 1099; Ruggiero v. Compania Puruana de Vapores, S.A., 639 F.2d 872, 875 (2d Cir. 1981). 24a mune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter. 28 U.S.C. Sec. 1604. Plaintiffs do not rely on an “exist- ing international agreement” but solely on the above cited exceptions in Sec. 1605. In evaluating plaintiffs’ assertions, the Court must respect the Congressional di- rective that claims of sovereign immunity “henceforth be decided by courts” in accordance with the FSIA, and not by deference to political and diplomatic channels. 28 U.S. Sec. 1602.’ The House Report explains: .. . the bill would codify the so-called “restrictive” principle of sovereign immunity, as presently recog- nized in international law. Under this principle, the immunity of a foreign state is “restricted” to suits involving a foreign state’s public acts (jure imperii) and does not extend to suits based on its commercial or private acts (jure gestionis). This principle was adopted by the Department of State in 1952 and has been followed by the courts and by the executive branch ever since. Moreover, it is regularly applied against the United States in suits against the U.S. Government in foreign courts. H. Rep. No. 94-1487, supra, at 7. The parties’ dispute involves, and jurisdic: »n turns on whether Mexico’s ex- propriation of, and continuing failure to pay, plaintiffs’ claims are jure imperii or jure gestionis. 7 The Congress became dissatisfied with the State Department practice of making formal suggestions of sovereign immunity in suits against foreign sovereigns. They often resulted in incon- sistent decisions due to unequal abilities on the part of foreign sovereigns to bring diplomatic influences to bear on the State Department— influences which could deny litigants due process and may not have been relevant to the decision. H. Rep. No. 94-1487, supra, at 7. ee 25a At first blush, it appears that Mexico’s acts or omis- sions are public acts. Mexico officially traded plaintiffs’ claims in international negotiations with the United States and by treaty and executive decree, assumed and acknowledged its responsibility to plaintiffs to compen- sate them for their claims. As recertly as January 29, 1982, the Attorney General of Mexico acknowledged the claims. The claims, however, could not be for title, but for compensation for the wrongful taking of title in the 19th Century.* When the claims were before the General Claims Commission, the United States was in a position to consider offering land as compensation, but such a re- sult was neither likely nor obligatory; particularly where the 1923 treaty recognized that the claims of each na- tion’s citizens, resulting from a variety of unrelated cir- cumstances, were to be set off against one another and resolved on the diplomatic level—allowing each nation to deal with its citizens directly. The Court finds that plaintiffs’ claims, at least since 1923, while they may have their genesis in a wrongful taking of property, were no more than just that: claims. The Court further finds, as both parties concede, that by virtue of the 1923 and 1941 treaties, the claims became internal obligations of Mexico. While Mexico’s decision to assume responsibility for plaintiffs’ claims may amount to an expropriation, it is by no means clear that the plaintiffs had any rights whatsoever against the United States once their remedies to quiet title expired. Before Mexico can provide a remedy, it must first evaluate and raise money to cover the claims. This is by no means a ministerial task, and requires, at a minimum, public ac- tion by the Mexican Government. * There is no allegation by plaintiffs that they or their ancestors sought to retain or quiet title within the applicable statute of limitations after the alleged wrongful takings occurred. Moreover, Mexico has no power over title to land within the United States under the 1941 treaty. EE 26a Plaintiffs respond, however, that the FSIA recognizes that satisfaction of every claim, whether it be commercial or tort, requires a public act, and that 28 U.S.C. Sec. 1605 was enacted to codify the “restrictive” principle of sovereign immunity and guide the courts in applying the doctrine.* Accordingly, the Court finds it necessary to evaluate plaintiffs’ assertion of exceptions (4) and (5) of Section 1605.” ®Compare Victory Transport, Inc. v. Comisaria General de Abastecimientos y Transportes, 336 F.2d 354 (2d Cir. 1964) (sov- ereign held immune prior to enactment of FSIA in connection with a commercial loan obtained for general governmental pur- pose), cert. denied, 381 U.S. 934 (1965). 10The Court notes that there is a question whether Mexico's “internal obligation” can fall within any of the exceptions to section 1605. In a section-by-section analysis prepared by the Departments of State and Justice in 1973, the view was expressed that: Public debts do not fall within the scope of 1605. The immunity of foreign states in this respect should be maintained by the United States, in its role as one of the principal capital markets of the world.... Immunities of Foreign States: Hearings on H.R. 3493, Before the Subcomm. on Claims and Government Relations of the H. Comm. on the Judiciary, 93d Cong., Ist Sess. 42 (1973) (hereinafter “1973 Hearings”). The Court is mindful of Congress’ instructions not to consult the 1973 section by section analysis in construing the FSIA and that no inferences should be drawn by differences be- tween the 1973 analysis and the FSIA. H. Rep. No. 94-1487, supra, at 12. For this reason, the Court is not relying on any “differences,” but instead notes the following contemporaneous constructions of the bill. When the FSIA was first proposed it contained proposed Section 1606 which provided that all debts of sovereigns would remain beyond the jurisdiction of the U.S. courts. See H.R. 11315, 93d Cong., Ist Sess. (1973) ; H.R. 11315, 94th Cong., Ist Sess. (1975) ; 1973 Hearings, supra, at 42. Ultimately, the provision was deleted from H.R. 11315. The Committee found it unnecessary because U.S. lenders “invariably include an express waiver of immunity in the debt instrument.” H. Rep. No. 94-1487, supra, at 10; S. Rep. No. 1310, 94th Cong., 2d Sess. 7 (1976). Proposed section 1606 27a 1. The Immovable Property Exception—Sec. 1605 (a) (4) Under 28 U.S.C. Sec. 1605(a): A foreign state shall not be immune from the juris- diction of courts of the United States... in any case—(4) in which rights in property in the United States acquired by succession or gift or rights in immovable property situated in the United States are in issue... . Notably, this exception to the general rule of sovereign immunity contains two independent triggering clauses. The first clause speaks of “rights in property in the United States acquired by succession or gift” and the second speaks of “rights in immovable property situated was ambiguous in that it applied to all debts, not just general governmental obligations. The State Department considered amending it but then decided that no provision was better than a more precise provision which identified only non-commercial debts for general government obligations as eligible for per se sovereign immunity. Jurisdiction of the U.S. Courts in Suits Against Foreign States: Hearings on H.R. 11315 Before the Sub- comm. on Administrative Law and Government Relations of the H. Comm. on the Judiciary, 94th Cong., 2d Sess. 69, 75 (1976). The 1976 House Report specifically discusses the deletion of pro- posed section 1606 to which the above quoted passage referred. The Committee appears to have ignored the fact that a public debt could exist in other than the commercial lending context. It merely suggests that only public debts “which are of a commercial nature and should be treated like other commercial transactions” are excepted from sovereign immunity. Jd. The non-commercial debt obligation is thus arguably immune by implication and may place the “internal obligations” in dispute in this case outside the scope of the Section 1605 exceptions. This is in accordance with the historical meaning of a “public debt,” which was considered a per se public act and a sufficient basis for sovereign immunity. See, e.g., Letter from Jack B. Tate, Acting Legal Advisor, U.S. Dept. of State, to the Attorney General (May 19, 1952), reprinted in Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 711-15 (1976). 28a in the United States.” Plaintiffs’ make a formalistic ar- gument that the first phrase was drafted to deal with all kinds of property (real, personal or intangible) acquired by succession or gift and that the second phrase was drafted to deal with suits involving rights in immovable property. Plaintiffs assert that both clauses apply to its claims against Mexico. They argue alternatively that their claims arise from rights in “immovable property,” as well as concern inherited intangible property (i.e., claims) located in the United States. The Court dis- agrees. Since the beginnings of positive law, attorneys have argued over the plain meaning of statutes. See Graff, “Keep Off the Grass,” “Drop Dead,” and Other Indeter- minacies: A Response to Sanford Levinson, 60 Tex. L. Rev. 405 (1982). Plaintiffs first seek to establish that their claims are a “usufructuary” interest** and thus a right in “immovable property.” The difficulty with this assertion is it assumes plaintiffs had a colorable legal right to title in 1923 when Mexico and the United States agreed to consider their claims at the diplomatic level. When sovereigns sit down at the bargaining table, as Mexico and the United States did in 1923, 1934 and 1941, a multitude of considerations may effect a decision to recognize a claim, considerations which may not be cognizable at law. Plaintiffs have not alleged that they had title to the land in 1923 or that they attempted to regain title in a legal forum prior to that time. All they have alleged is the United States’ acknowledgment, at the diplomatic level, of plaintiffs’ rights to prove their claims, and that Mexico assumed the United States’ obligation to satisfy the claims. As a result, it requires a stretch of the Court’s imagination to hold that the underlying con- troversy » this suit involves an action to quiet title or to recover money derivative of real property rights. See 11 See La. Civ. Code Ann. Arts. 462-470, 575 (West 1980); Mexican Civ. Code Arts. 750, 980 (Ediciones Andrade 1976). 29a Bachman v. Lawson, 109 U.S. 659 (1884); Comegys, et al. v. Vasse, 26 U.S. (1 Pet.) 193 (1828). Rather, the Court holds that plaintiffs’ claims, however meritorious they appear on the scales of justice, involve intangible property rights created through the diplomatic process. Cf. Matter of Rio Grande Transport, 516 F. Supp. 1155, 1160 (S.D.N.Y. 1981) (a liability compensation fund is not real estate and thus not immovable property). Plaintiffs alternatively argue that their claims fall within the meaning of inherited property under section 1605(a) (4). This assertion must also fail. If the Court were to adopt plaintiffs expansive reading of the FSIA, any claim or chose in action involving inherited property (real, personal or intangible) would be excepted from the rule of sovereign immunity. Because every dispute with a foreign sovereign necessarily involves these kinds of in- tangible rights, every dispute in plaintiffs’ view would be excepted from sovereign immunity when it passes by gift or succession. This is contrary to the purpose of the FSIA. The FSIA codified the existing “restrictive” principles of sovereign immunity in section 1605. H. Rep. No. 94- 1487, supra, at 7. Congress included the succession clause (“rights in property in the United States acquired by succession or gift”) to ensure that real, personal and in- tangible property rights were justiciable where a foreign sovereign steps into the shoes of a private litigant by obtaining rights in property through a gift or inheritance. H. Rep. No. 94-1487, supra, at 20. See generally Restate- ment (Second) of the Foreign Relations Law of the United States (Revised) sec. 455 (Tent. Draft No. 2, 1981). It did not intend to open the courts to all suits involving inherited or donated property. 2. The Tort Exception—28 U.S.C. Sec. 1605(a) (5) Plaintiffs next rely on the tort exception to invoke the jurisdiction of the Court. They reason that Mexico as- 80a sumed a duty to compensate plaintiffs in the United States when it signed the 1941 treaty, and that the continuing failure to provide such compensation amounts to a con- version of plaintiffs’ claims. Section 1605(a) (5) provides for limited jurisdiction over tort claims: A foreign state shall not be immune from the ju- risdiction of the courts of the United States... in any case ... in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omis- sion of that foreign state or of any official or em- ployee of that foreign state while acting within the scope of his office or employment; except this para- graph shall not apply to— (A) any claim based upon the exercise or per- formance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused... . 28 U.S.C. sec. 1605(a) (5). As noted above, plaintiffs do not assert, nor is it clear that they possessed, legal claims against the United States. They argue instead that what- ever the status of their claims against the United States, Mexico acknowledged their validity, assumed responsibil- ity, and converted their rights. The settlement of claims between sovereigns, in which each sovereign agrees to compensate its own citizens, does not create a private right of action in U.S. courts for a taking or conversion resulting from the failure of the United States to provide the agreed upon compensation. Aris Gloves, Inc. v. United States, 420 F.2d 1386 (Ct. Cl. 1970). See Restatement (Second) of the Foreign Rela- tions Law of the United States (Revised) sec. 721 n.8 (Tent. Draft No. 3, 1982); L. Henkin, Foreign Affairs and the Constitution 262-63 (1972). The rationale for 3la this rule applies with greater force in this case where the Court is asked to intervene in a foreign sovereign’s relations with plaintiffs under a treaty. Not only does it require a review of the actions of the Mexican Govern- ment, but it requires an implicit reversal of the decision by the Executive Branch and Congress to entrust the compensation of plaintiffs to Mexico in 1941. The Court is doubtful whether it has any authority, absent extraor- dinary and compelling circumstances, to exercise juris- diction over the foreign affairs of the United States.” Even assuming this case warrants judicial interven- tion and that Mexico’s continuing failure to compensate plaintiffs constitutes a taking or conversion of plaintiffs’ claims, plaintiffs still concede that the “highest authori- ties” of the Mexican Government including the President and the Legislature have failed to act. The evaluation, financing, and payment of plaintiffs’ claims are not min- isterial matters. See In re Complaint of Sedco, Inc., 543 F.2d 561 (S.D. Tex. 1982). Cf. Dalehite v. United States, 346 U.S. 15, 35-36 (1953). The judgments are not merely operational, but raise substantial and serious ques- tions of fiscal policy, and the allocation of limited re- sources.** Moreover, Professor Henkin persuasively writes, with respect to the settlement of claims by the United States, that: No one has successfully argued in the Supreme Court that in purporting to dispose of private claims, in the details of a particular settlement, in the pro- cedures established for making awards to private 12 See discussion, infra, at pages 22-27. 13 A few of the claims were processed by the General Claims Commission before 1941, and Mexico agreed to honor those de- cisions. See Presidential Decree, 129 D.O. sec. 5, supra at pages 5-6. Those findings, however, only went to the validity of the claims and their valuation. Even if honoring those findings is ministerial, funding them is certainly not. 32a claimants, in Congressional legislation providing (or failing to provide) for award and payment, the United States deprived the original claimants of property without due process of law, impaired the obligation of their contracts or appropriated their claims for a public purpose and was obligated to pay them just compensation for any loss. The Court has refused to scrutinize any settlement and has affirmed that Congress has discretion to decide whether and how and to what extent to compensate the original creditors. L. Henkin, Foreign Affairs and the Constitution, 263 (1972) (footnotes omitted). These considerations are high-level policy judgments, requiring deference to the expertise and discretion of the United States Congress and the Executive Branch. This Court finds it should defer under 28 U.S.C. sec. 1605(a) (5) to the expertise of the Mexican Government, regardless of whether that judgment, in the Court’s or plaintiffs’ views, is an abuse of discretion. The Court is sympathetic to the plaintiffs’ dilemma. The alleged delays on Mexico’s part offend its sense of fair play and justice, but it must also respect its juris- dictional boundaries. Because, however, jurisdiction un- der the tort exception is barred with respect to all mat- ters “based upon the exercise or performance or the fail- ure to perform a discretionary function,” the Court holds the alleged conversion of or failure to honor plaintiffs’ claims extend beyond the parameters of federal subject matter jurisdiction."* 14 An additional basis for declining jurisdiction, on which the Court does not rely, is that assuming Mexico converted plaintiffs’ claims and committed a tort, the tort occurred in Mexico and did not affect property in the United States. See Perez v. The Bahamas, 652 F.2d 186, 189 (D.C. Cir.), cert. denied, 102 S. Ct. 8326 (1981). As noted above, the alleged tort involves the conversion of claims against Mexico, not property in the United States. 33a B. The Act of State Doctrine In reaching its decision, the Court is guided by the act of state doctrine.” Sovereign immunity and the act of state doctrine are generally independent concerns, and the former is binding while the latter is subject to dis- cretionary application. See int'l Ass’n of Machinists & Aerospace Workers v. Org. of Petroleum Exporting Coun- tries, 649 F.2d 1854, 1859 (9th Cir.), cert. denied, 454 S. Ct. 1163 (1982) (hereinafter “OPEC” ). The Court in OPEC explained: The doctrine of sovereign immunity is similar to the act of state doctrine in that it also represents the need to respect the sovereignty of foreign ‘states. The two doctrines differ, however, in significant re- spects. The law of sovereign immunity goes to the jurisdiction of the court. The act of state doctrine is not jurisdictional. Ricaud v. American Metal Co., 246 U.S. 304, 309 ... (1918). Rather, it is a pru- dential doctrine designed to avoid judicial action in sensitive areas. Sovereign immunity is a principle of international law, recognized in the United States by statute. It is the states themselves, as defendants, who may claim sovereign immunity. The act of state doctrine is a domestic legal principle, arising from the peculiar role of American courts. It recognizes not only the sovereignty of foreign states, but also the spheres of power of the co-equal branches of our government . . . The act of state doctrine is apposite whenever the federal courts must question the legai- ity of the sovereign acts of foreign states. 649 F.2d at 1359.*° 15 Cf. Fountain v. Metro. Atlanta Rapid Transit Authority, 678 F.2d 1038, 1041 (11th Cir. 1982) (“federal courts should be scrupulous in confining their use of judicial power to the precise limits set by the Constitution and Congress.’’). 16 The court went on to hold that the FSIA could not and does not supersede the act of state doctrine. Jd. at 1359-60. 34a Many, if not all, of the issues raised under the FSIA involve the acts or omissions of the Mexican Govern- ment, and even assuming the FSIA did not preclude jurisdiction, consideration of those issues are at best on the fringe of judicial authority. The Supreme Court ruled in Underhill v. Hernandez, 168 U.S. 250, 252 (1897) that: Every sovereign State is bound to respect the inde- pendence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. See also Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682 (1976); D’Angelo v. Petroleos Mewxi- canos, 422 F. Supp. 1280 (D. Del. 1976), aff'd, 564 F.2d 89 (3d Cir. 1977). Plaintiffs contend that the doctrine does not apply to this case because Mexico has failed to prove an act of state affecting property or persons over which Mexico is the sovereign. Plaintifis must concede and in fact they allege that the Mexican Government has failed to act. They rely, however, on three alleged facts: (1) Mexico has not yet proven an act of state sufficient to warrant application of the doctrine at this stage of the litigation; (2) plaintiffs’ claims are located in the United States and are not subject to the sovereignty of Mexico; and (3) the act of state doctrine is discretionary and is unnecessary in the case because the validity of Mexico’s acts are not in issue. In Alfred Dunhill, supra, the Court held that Cuba could not rely on the assertions of counsel that the failure to pay a debt was an act of state. 425 U.S. at 694-95. In this case, however, plaintiffs base their claim on Mex- ico’s failure to act, which the Court assumes to be true 35a for the purpose of this motion.” No further proof is re- quired unless plaintiffs contend that the failure to act is not an act of state; an assertion which has little, if any, merit. D’Angelo v. Petroleos Mexicanos, 422 F. Supp. at 1290 (“Non-action as well as affirmative conduct of a governmental agency, if based upon sovereign govern- mental authority, can have the status of an act of ers F Plaintiffs’ reliance on the situs of their claims is like- wise misplaced. As discussed above, and as plaintiffs con- cede, their claims were assumed by Mexico in return for an assumption of American claims by the United States.*® At no time prior to the transfer did plaintiffs establish a legal right to their claims prior to Mexico’s assump- tion.?® For the Court to accept plaintiffs’ argument, it would first have to hold that any person who has a claim against a foreign sovereign could transfer situs of the claim to the United States by moving to the United States. Clearly, such a holding distorts the doctrine whose appli- cation does not focus as much on the situs of property, but on whether a court in ordering relief would unduly interfere with the foreign affairs authority of the execu- tive branch. See Tabacalera Severiano Jorge, S.A. v. Standard Cigar Co., 393 F.2d 706, 715 (5th Cir.) cert. denied, 393 U.S. 924 (1968); Maltina Corp. v. Cawy Bottling Co., 462 F.2d 1021, 1027 (5th Cir.), cert. denied, 409 U.S. 1060 (1972). Unlike Maltina, Mexico is not seeking extra-territorial enforcement of an act of state (i.e., a corporate dissolution), but respect for its discre- 17 The affidavit of Oscar Flores, Attorney General of Mexico, attached to Defendant’s motion as Exhibit A, merely confirms the allegations in plaintiffs’ Complaint and is unnecessary for the Court to reach its holding. 18 See discussion, supra, at pages 4-5. 18 Jd, 36a tion to handle plaintiffs’ claims. Jd. at 1025-26.” Nor is Mexico or any other party seeking to impose the effect of Mexico’s acts on property located in the United States. Finally, plaintiffs ask the Court to use its discretion and not apply the doctrine. As noted above, however, the issues before the Court, both in determining jurisdiction and, if it had been necessary, in affording ultimate relief, would require the Court to exercise its power in zones of influence delegated by the Constitution to the executive and legislative branches. “There is a long history of [executive] governmental action compensating our own citizens out of foreign assets in this country for wrongs done them by foreign govern- ments abroad.” Sardino v. Federal Reserve Bank of New York, 361 F.2d 106, 112 (2d Cir.), cert. denied, 385 U.S. 898 (1966). Frequently, they are the result of claims settlement negotiations on the suvereign to sovereign level. See e.g., United States v. Pink, 315 U.S. 203 (1942); United States v. Belmont, 301 U.S. 324 (1987); Great Western Insurance Co. v. United States, 112 U.S. 193, 199 (1884). Judicial intervention would directly inter- fere with the historical authority of the executive and legislative branches in negotiating, signing and ratifying treaties. For the Court to rule that Mexico violated in- ternational and Mexican law by failing to compensate plaintiffs would seriously damage the lawful and apparent authority of United States negotiators. See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964) ; United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936); Underhill v. Hernandez, 168 U.S. 250 (1897). Entertainment of plaintiffs’ claims could reopen In Maltina, the former owners of a brewery, expropriated and dissolved by Cuba, were successful in defeating a claim that their corporate dissolution was an act of state and that their corporate authority must be honored in the United States insofar as it involved trademarks located in the United States. Jd. at 1027. 87a the Mexican-American claims dispute.** Wherefore, the Court alternatively holds that the act of state doctrine bars consideration of plaintiffs’ case. IV. Conclusion The Court is deeply troubled by the allegations in plain- tiffs’ complaint. Mexico agreed in 1941 to assume respon- sibility for plaintiffs’ loss of land in the Southwestern United States. Neither the United States nor an appro- priate legal forum within its borders ever found plain- tiffs’ claims to be legally cognizable.. Mexico received substantial consideration, however, in return for its as- sumption: a release from liability for various claims of American citizens resulting from the Mexican Revolution. Those latter claims were paid by the United States as part of its recognized treaty obligations. For reasons unknown to the Court, and beyond its limited grant of jurisdiction under Article III of the Con- stitution, Mexico has allegedly failed, as the 1941 treaty provides, to promptly evaluate the claims and provide compensation. Despite these serious concerns, the Court holds that it lacks subject matter jurisdiction over this case pursaunt to the FSIA. 21 A recent example of this possibility is the negative impact on, United States relations with China as a result of Jackson v. Peoples Republic of China, 550 F. Supp. 869 (N.D. Ala. 1982). In Jackson, China chose not to appear and defend against a suit | for payment on $41.3 million of 1911 Huguang railroad govern- ment obligations. The Court entered a default judgment and sub- sequently the Executive Branch has been requested by Chinese officials to intervene in the decision and deny its effect. Wren, Separation of Powers? You Must Be Kidding Says China, N.Y. Times, March 20, 1983, The Week In Review Section. Unlike this case, had the foreign sovereign entered an appearance, the Court might have been presented with a record on which to consider the act of state doctrine, 38a ORDER WHEREFORE, it is this 20th day of April, 1982, hereby ORDERED that defendant’s motion to dismiss the com- plaint be and hereby is granted. /s/ Thomas F. Hogan THOMAS F. HOGAN United States District Judge 39a APPENDIX C UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT September Term, 1983 Civil Action No. 81-02299 No. 83-1596 ASSOCIATION DE RECLAMANTES, et all., Appellants Vv. THE UNITED MEXICAN STATES Appeal from the United States District Court for the District of Columbia Before: EDWARDS and SCALIA, Circuit Judges, and SwYGERT, * Senior Circuit Judge for the United States Court of Appeals for the Seventh Circuit. JUDGMENT This cause came on to be heard on the record on appeal from the United States District Court for the District of Columbia, and was argued by counsel. On consideration thereof It is ordered and adjudged by this Court that the judgment of the District Court ap- * Sitting by designation pursuant to 28 U.S.C. § 294(d). ———Sae_sxaaaaaw 40a pealed from in this cause is hereby affirmed, in accord- ance with the Opinion for the Court filed herein this date. Per Curiam For The Court /s/ George A. Fisher GEORGE A. FISHER Clerk Date: June 5, 1984 Opinion for the Court filed by Cireuit Judge Scalia. Concurring statement filed by Circuit Judge Edwards. 4la UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT September Term, 1983 Civil Action No. 81-02299 No. 83-1596 ASOCIACION DE RECLAMANTES, et al., - Appellants THE UNITED MEXICAN STATES [Filed July 23, 1984] Before: ROBINSON, Chief Judge; WRIGHT, TAMM, WIL- KEY, WALD, MIKVA, EDWARDS, GINSBURG, BORK, SCALIA and STARR, Circuit Judges and Swy- GERT*, Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit. ORDER The Suggestion for Rehearing en banc of Appellants has been circulated to the full Court and no member has requested the taking of a vote thereon. On consideration of the foregoing, it is ORDERED by the Court en banc that the aforesaid Suggestion is denied. Per Curiam For the Court GEORGE A. FISHER Clerk By /s/ Robert A. Bonner ROBERT A. BONNER Chief Deputy Clerk * Sitting by designation pursuant to title 28 U.S.C. § 294(d). 42a UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT September Term, 1983 Civil Action No. 81-02299 No. 83-1596 ASOCIACION DE RECLAMANTES, et al., Appellants Vv. THE UNITED MEXICAN STATES [Filed Aug. 28, 1984] Before: EDWARDS and SCALIA, Circuit Judges, and SwyYGeErT *, Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit. ORDER On consideration of Appellants’ Petition for Rehearing and Appellants’ Motion for Stay of Mandate, it is ORDERED by the Court that the Petition for Rehear- ing is denied and it is FURTHER ORDERED by the Court that the Motion for Stay of Mandate is denied. Per Curiam For the Court GEORGE A. FISHER Clerk By /s/ Robert A. Bonner ROBERT A. BONNER Chief Deputy Clerk 43a APPEN DIX D IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Civil Action No. 81-2299 ASOCIACION DE RECLAMANTES, a Texas nonprofit corporation, 721 East Baker Edinburg, Texas 78539 (512) 383-4691, AMINTA ZARATE 721 East Baker Edinburg, Texas 78539 (512) 383-2035, Luis RIOJAS 301914 Glenhurst Avenue Los Angeles, California 90039 (213) 660-5290, FELIPA FLORES BENAVIDEZ Route 4, Box 798 Edinburg, Texas 78539 (512) 383-4786, MARIA AGUIRRE DE SCHULTZ 7226 Westglade Place San Antonio, Texas 78227 (512) 674-0292, NIEVES GUERRERO CHAPA Isac Garza #1515 Pte. Monterrey, Nuevo Leon Mexico 745846 44a SANTOS ZARATE PRIETO Jesus Bernal #204 Aguascalientes, Aguascalientes Mexico 65482 Plaintiffs, v. THE UNITED MEXICAN STATES, Defendant. FIRST AMENDED CLASS ACTION COMPLAINT FOR TAKING OF PROPERTY Plaintiffs Asociacion de Reclamantes, Aminta Zarate, Luis Riojas, Felipa Flores Benavidez, Maria Aguirre de Schultz, Nieves Guerrero Chapa and Santos Zarate Prieto, by and through their attorneys, on behalf of themselves and the class alleged herein, state and allege for their complaint against the Defendant United Mexican States (“Mexico”) as follows: I. PRELIMINARY STATEMENT 1. This is a class action brought against Mexico by the specifically named Plaintiffs in their own behalf and on behalf of others similarly situated to recover monetary damages from Mexico for its use and taking of claims they or members of their families originally possessed against the United States of Ameriea (the “United States”) for the loss of nearly 12 million acres of land in the State of Texas held under land grants from Spain or Mexico and to establish a fund out of which class members may be paid. Mexico has failed to pay these private claims, which it valued in 1925 at $193,658,954.60, and which Mexico took and used for its own public pur- poses, including the securing of recognition by the United States of a new Mexican government and the reduction 45a of Mexico’s international financial obligations to the United States. Since 1941 to the present, Mexico has re- peatedly acknowledged its obligation to compensate the Plaintiffs and class members but has failed to satisfy that obligation. II. JURISDICTION AND VENUE 2. The jurisdiction of this Court over each of the claims for relief alleged herein is invoked under 28 U.S.C. §§ 1830(a) and 1331. The jurisdiction of this Court over Defendant Mexico is invoked under 28 U.S.C. § 13830(b). 3. Venue is proper in this district under 28 U.S.C. § 1391(f) which provides that “a civil action against a fereign state ... may be brought... (4) in the United States District Court for the District of Columbia... .” Ill. PARTIES 4. Plaintiff Asociacion de Reclamantes is a Texas non- profit corporation established in 1978. Its membership, totalling nearly 2,000 individuals, is comprised of heirs, descendants and successors (hereinafter “heirs” includes “heirs and successors”) of recipients of Spanish and Mex- ican grants of land in Texas. As hereafter set forth, the members now possess claims against Mexico for its use, taking and failure to pay for the land grant related loss claims they or their ancestors possessed against the United States. The Asociacion was established to assist the heirs in securing compensation for these claims from Mexico. 5. Each of the individual Plaintiffs is an heir of per- sons on whose behalf Defendant Mexico asserted and set- tled claims and whom Mexico has failed to compensate. Each of the individual Plaintiffs is also a member of the Asociacion de Reclamantes and of the class sought to be represented herein. a. Plaintiff Aminta Zarate is a citizen and resident of the United States and of the State of Texas. 46a b. Plaintiff Luis Riojas is a citizen and resident of the United States and of the State of California. ce. Plaintiff Felipa Flores Benavidez is a citizen and resident of the United States and of the State of Texas. d. Plaintiff Maria Aguirre de Schultz is a citizen and resident of the United States and of the State of Texas. e. Plaintiff Nieves Guerrere Chapa is a citizen and resident of Mexico who resides in the Mexican State of Nuevo Leon. f. Plaintiff Santos Zarate Prieto is a citizen and resi- dent of Mexico who resides in the Mexican State of Aguascalientes. 6. Defendant Mexico is a foreign state wine the meaning of 28 U.S.C. § 1603. IV. CLASS ACTION ALLEGATIONS 7. Plaintiffs seek to represent the class of all persons who are the heirs of the original grantees of, or the heirs of persons succeeding to title to, 433 specific grants of land located in what is now the State of Téxas, on whose behalf Mexico asserted claims for damages for loss of such lands in negotiations and other proceedings with the United States culminating in the Treaty of November 19, 1941 between the two countries (hereafter ‘1941 Treaty”). Attached hereto as Exhibit C is a document prepared by Defendant Mexico in 1932 describing the 433 land grant related claims, and identifying the location of the land, the original grantees and the value of each claim. As a result of the acts of Mexico hereinafter de- scribed, Plaintiffs and the class they seek to represent are entitled to payrment of compensation and damages by Mexico for its use, taking, and failure to pay for claims which the class members and their families possessed against the United States as a result of violations of their rights to land in Texas. Ala 8. This action is properly maintainable as a class ac- tion on behalf of the class defined above (hereinafter the “Class”) under Rules 23(a), 23(b) (1) (A) and (B), and 23(b) (3) of the Federal Rules of Civil Procedure. a. The Class is so numerous that joinder of all mem- bers is impracticable. Although it cannot now be stated with certainty how many persons are in the Class, ap- proximately 2,000 persons, the majority of whom are members of the Asociacion de Reclamantes, have been identified by documentary evidence as members of the. class. Plaintiffs believe that there are substantially more members of the Class than the group already identified, including as many as 20,000 persons. b. There are numerous questions of law and fact com- mon to the members of the class. They include at least the following: 1) Whether the court has jurisdiction over the claim; (2) Whether Mexico is obligated to pay compensation to plaintiffs and other class members as a result of ifs extinguishment of claims they or their ancestors had against the United States stemming arom certain losses of land in the state of Texas; (3) Whether, if the plaintiffs are entitled to damages, the measure thereof is the valuation placed on the claims by Mexico itself, with appropriate interest and adjust- ments for inflation, or whether another measure of dam- ages is appropriate. Other common questions may arise depending on what defenses Mexico may choose to assert in this action. ce. Plaintiffs’ ciaims are typical of the claims of all members of the Class. d. Plaintiffs will fairly and adequately represent and protect the interests of the members of the Class. (1) Each of the individual plaintiffs, together with plaintiff Asociation de Reclamantes, has for many years 48a actively and diligently sought to obtain redress from Mex- ico for their claims and those of others similarly situated, through means short of litigation. (2) Plaintiffs, together with other members of the Asociacion, have been and are committed to carrying the expenses, pending litigation, of pursuing the claims of all class members for the compensation to which they are entitled; (3) Plaintiffs have retained as counsel attorneys in Colorado and California with experience over a five-year period in attempting to vindicate their rights through negotiations with the Mexican Government, and who are highly familiar with the legal basis for the claims, as well as local counsel with experience in federal court litiga- tion. (4) Plaintiffs are also representative of the general characteristics of the Class members. Plaintiffs Zarate, Riojas, Flores Benavidez, Aguirre de Schultz are all United States citizens resident in Texas or California, where plaintiffs believe a majority of potential class mem- bers reside. Plaintiffs Guerrero Chapa and Zarate Prieto are citizens and residents of Mexico, where other Class members reside. (5) Plaintiffs’ claims, as set forth in paragraphs 65- 106 of this Complaint, are typical of those of the Class. Some representative plaintiffs, for example, claim only through familial descent, while others claim in part through successorship. All of the representative plaintiffs have gathered the necessary documentation to establish the validity of their claim under the rights of their an- cestors or predecessors for compensation from the defend- ant. e. Insofar as there are numerous heirs, some known and others not, who may be entitled to share in any re- covery, prosecution of separate actions by individual Class members would create a risk of 1) inconsistent ad- 49a judications which would establish incompatible standards of conduct for Defendant Mexico and 2) adjudications with respect to individual Class members which would as a practical matter be dispositive of the interests of the other members or substantially impair or impede their ability to protect their interests. f. The common questions of law and fact predominate over any questions affecting only individual Class mem- bers, including the question of individual damages, and a class action is superior to other methods for a fair and efficient adjudication of the controversy because, inter alia, the number of the members of the Class is substan- tial and the members’ interests are highly similar. ee ee a (1) Given the number of different possible claimants with regard to each of the original land grants, the inter- ests of class members in individually controlling the pros- ecution of actions separately is small; (2) There are no other pending cases concerning the controversy of which any of the plaintiffs or their counsel are aware; (3) It is highly desirable to litigate all such claims against Mexico in one forum, since all parties have an interest in a final resolution of the liability issue; and (4) No difficulties of managing this action as a class action are posed that cannot be resolved at an appropriate time through the establishment of sub-classes pursuant to Rule 23(c) (4). V. GENERAL ALLEGATIONS Acquisition And Loss Of Land In Texas. 9. During the period prior to February 2, 1848, Spain and Mexico, which exercised sovereignty over the region now known as the State of Texas (hereafter “Texas’), made thousands of grants of land in Texas, including the 433 grants to Plaintiffs’ ancestors. Collectively these 433 ee 50a land grants encompassed 12 million acres of land, most of it laying between the Rio Grande and the Nueces River in South Texas. 10. Under the Treaty of Guadalupe Hidalgo, entered into by Mexico and the United States on February 2, 1948, Mexico relinquished to the United States its claim to sovereignty over Texas and other vast areas now part of the United States. Since 1848 sovereignty over Texas has been exercised by the State of Texas and the United States. 11. Under the Treaty of Guadalupe Hidalgo, princi- ples of international law and the law of the United States, the rights possessed under Spanish and Mexican grants of land in Texas by the recipients of such grants and their heirs were entitled to be respected and protected by the United States and its citizens. 12. After the United States and State of Texas as- sumed sovereignty over Texas, the rights of the original Spanish and Mexican grantees and their heirs to land in Texas were not respected but were wrongfully taken and violated by the United States, the State of Texas and their citizens, resulting in the loss by the original land grantees and their heirs of 12 million acres of land in Texas. 13. Under the Treaty of Guadalupe Hidalgo and prin- ciples of international iaw, Mexico sought redress from the United States for the heirs of the original Spanish and Mexican grantees for the violations of their land grant based rights. Mevico’s Soicitation, Assertion And Filing Of Heirs’ Claims Against The United States For Land Losses. 14. In the early 1920s General Alvaro Obregon, victor in the Mexican Revolution and President of Mexico, sought recognition from the United States of his govern- ment as the de jure government of Mexico. 5la 15. The United States initially sought to condition any such recognition on Mexico’s satisfaction of several hun- dred million dollars of claims by American nationals against Mexico. These claims stemmed from alleged acts or omissions of the Mexican Government during the Mex- ican Revolution as well as prior to and after it. 16. President Obregon responded by raising the issue of the United States’ liability to the heirs of the original Spanish and Mexican grantees for violations of their fam- ilies’ land grant rights in Texas. Mexico asserted that these violations had given rise to a substantial monetary liability. 17. By these negotiations, President Obregon achieved a substantial Mexican public purpose: the securing of the United States’ official recognition of his government as the de jure government of Mexico without first satis- fving the claims of American nationals. 18. On September 8, 1923, Mexico, and the United States entered into a treaty (the “1923 Treaty”) to pro- vide in part “for the amicable settlement and adjustment of claims” which had been raise1 in the recognition dis- cussions. Attached hereto as Exhibit A is a copy of the 1923 Treaty. Pursuant to the 1923 Treaty, the United States and Mexico agreed to the establishment of a Gen- eral Claims Commission whith would have the authority to hear and decide a variety of claims, including those of the heirs of original Spanish and Mexican land grantees against the United States which Mexico had previously raised in the recognition discussions. 19. Mexico filed 836 claims against the United States with the General Claims Commission which it valued at $245,158,395.32 plus interest. Of these claims, 433 were on behalf of the heirs, including many American citizens, of original Spanish and Mexican grantees of land in Texas. Mexico valued these 433 claims in 1925 at $193,658,954.60 plus interest, a figure determined by ref- 52a erence to the value of the lands taken. Attached hereto as Exhibit B is a copy of one of the 433 complaints Mex- ico filed against the United States on behalf of the heirs. Also attached hereto, as Exhibit C, is a copy of a docu- ment published by Mexico in 1932 which lists and de- scribes with particularity each of the 433 land grant re- lated claims it filed against the United States and speci- fies the grantee and the dollar value of each claim. 20. The United States filed 2,781 claims against Mex- ico with the General Claims Commission with a total as- serted value of $513,694,267.17. 21. In order to obtain, develop and present the 433 land grant related claims it filed with the General Claims Commission, Mexico engaged in numerous activities be- tween approximately 1920 and 1941 in the State of Texas and the United States. 22. On information and belief, Plaintiffs allege that the activities of Mexico in this period in the United States and State of Texas included: a. placing notices in public places, newspapers, maga- zines and periodicals and on the radio advising the heirs that it would file claims on their behalf against the United States based on their families’ land losses; b. meeting with the heirs at the Mexican Consulate in San Antonio, Texas, and at various other locations to dis- cuss their claims; ce. securing evidence from the heirs and from other sources necessary to prove the land granted related claims; d. retaining the services of attorneys, investigators and others to, among other things, meet with the heirs to de- velop their claims; e. negotiating on behalf of the heirs with the United States at Washington, D.C. and other locations; 53a f. filing claims on behalf of the heirs with the General Claims Commission in Washington, D.C.; and g. entering into treaties and protocols with the United States regarding the heirs’ claims. 23. When the General Claims Commission ceased hear- ing and deciding claims in 1931, it had heard and de- cided none of the 433 land grant related claims Mexico had filed and only 109 of the other several thousand claims before it. 24. Pursuant to the protocol of April 24, 1934, be- tween Mexico and the United States, the claims not de- cided by the General Claims Commission were to be evaluated by two appraisers acting under a specified ap- praisal procedure. 25. When the authority of the appraisers to act on the claims expired on or about June 30, 1936, none of the 433 land grant related claims filed by Mexico, and only a few of the remaining claims, had been evaluated pursuant to this procedure. Mexico’s Confiscation and Use Of The Heirs’ Land Loss Claims. 26. In early 1940 Mexico and the United States com- menced negotiations aimed at resolving a host of pend- ing disputes between them. Among such disputes were the 433 land grant related claims Mexico had filed with the General Claims Commission as well as new claims by American oil companies seeking compensation for oil pro- ducing properties expropriated by Mexico in March, 1938. 27. In these negotiations, the United States and Mex- ico agreed to settle and resolve the claims that each had against the other, including the 433 land grant claims at issue herein, by setting off and releasing each set of asserted claims. This agreement was embodied in the 54a 1941 Treaty, by which Mexico became obligated to pay $40,000,000 to the United States, the amount by which all of the United States claims against Mexico were de- termined to exceed all of the Mexican claims against the United States. By the 1941 Treaty, Mexico received sub- stantial value, in excess of $193 million, in satisfaction of the claims involved in the instant action which Mexico had asserted against the United States. The Treaty of 1941 is attached hereto as Exhibit D. 28. Mexico paid the $40,000,000.00 to the United States in a timely manner and by approximately 1948 the United States had paid the claims of American na- tionals against Mexico, which the United States had as- serted in the Treaty negotiation, pursuant to the pro- visions of the Settlement of Mexican Claims Act of 1942, public law 814, 77th Cong., 2d Sess., 56 Stat. 1058. 29. Mexico’s release of the United States from liabil- ity on the 433 land grant related claims, in exchange for valuable consideration, constituted a use and taking by Mexico of those claims for its own public purposes, in- cluding the reduction of Mexico’s financial liabilities to the United States. As a result, Mexico became obligated to pay just, effective and prompt compensation for the 433 land grant related claims. Mexico’s Acknowledgment Of Its Obligation To Com- pensate Heirs For Their Claims. 30. On December 9, 1941, the then President of Mex- ico, Manuel Avila Camacho, issued a decree which ac- knowledged Mexico’s obligation to pay compensation for the expropriated land grant related claims. The Decree stated: “(I]t is the duty of the Government to satisfy [the claims] in accordance with the role they played in the [1941 Treaty]. ... [T]he claims... have become internal obligations of our government... one of our many domestic pecuniary responsibilities.” 55a A copy of this decree, with an English translation, is attached hereto as Exhibit E. 31. From 1941 to the present Mexico has repeatedly acknowledged its obligation and intention to pay com- pensation for the confiscated land grant related claims. Such acknowledgements have been made in numerous letters to heirs of the original grantees under whom the land grant related claims were made. A copy of such a letter sent to Plaintiff Aguirre de Schultz’s ancestors, with an English translation, is attached hereto as Ex- hibit F. Similar letters were sent to members of the class as recently as the late 1970’s. 32. These letters, including Exhibit F, specifically stated: The Federal Government intends to resolve this grave problem, as soon as the economic conditions of the treasury permit it to. 33. On information and belief, Plaintiffs alleged that annually from the celebration of the 1941 Treaty to the present Mexico, in official reports prepared and dissemi- nated by its Treasury Department, has listed among its monetary debts its obligation to pay compensation for the confiscated land grant related claims. 34. Heirs of the original Spanish and Mexican gran- tees under whom the land grant related claims arose have made numerous efforts since November 19, 1941, to se- cure compensation from Mexico for confiscated claims. Efforts By Heirs To Secure Compensation From Mexico; Meetings With And Representations Of Mex- ican Officials. 35. In the late 1970s heirs of the original Spanish and Mexican grantees of land in Texas joined together in an effort to secure compensation from Mexico for their con- fiscated claims. 56a 36. Since 1976 representatives of the heirs have met various times with representatives of Mexico to discuss its liability to the heirs as a result of its use, taking and confiscation of their land grant related claims. 37. In October, 1976, during the term of Mexican President Luis Echeverria Alvarez, the heirs’ representa- tives met with Lic. Jose Gallastigue, an Under-Secretary in the Mexican Foreign Ministry, to discuss payment of the heirs’ claims. 38. Lic. Gallastigue stated that the claims of the heirs would be paid if they proved their descent from one of the 433 original Spanish and Mexican land grantees un- der whom Mexico filed clams with the General Claims Commission. 39. The heirs’ representatives reasonably relied upon Lic. Gallastigue’s representations and thereupon per- formed substantial work and incurred expenses to sub- mit documents to Lic. Gallastigue proving the claims of three such heirs. 40. Lic. Gallastigue’s tenure as an Under-Secretary ended on or about November 30, 1976, with the inaugura- tion of Lic. Jose Lopez Portillo as Mexico’s new Presi- dent. The heirs’ representatives never received a response from Lic. Gallastigue on the claims they submitted to him. 41. In September, 1977, the heirs’ representatives met with Ambassador Eduardo Gutierrez Evia, head of the Legal Advisor’s Office of the Mexican Foreign Ministry, and members of his staff to discuss payment of compen- sation on the heirs’ claims. 42. In this meeting, the heirs’ representatives were told that a review would be made of Mexico’s obligation to pay compensation on the claims and that Mexico would pay such claims if the Legal Advisor’s Office determined that there was a present obligation to do so. 57a 43. The heirs and their representatives reasonably re- lied on the representations made by Mexico through Am- bassador Gutierrez Evia and engaged in further meet- ings with the Ambassador and his staff during the re- view by Mexico of its obligation to the heirs. 44, In reasonable reliance on Mexico’s representations the heirs’ represeitatives met with Ambassador Gutierrez Evia and his staff on a variety of occasions between Sep- tember, 1977, and March, 1978, in Mexico City and New York City to discuss Mexico’s obligation to the heirs, and did not pursue other avenues of recourse to require Mexico to satisfy its obligation. 45. On information and belief, Plaintiffs allege that in or about March, 1978, Ambassador Gutierrez Evia and his staff concluded that Mexico had a present obliga- tion to pay the heirs’ land grant related claims. There- after, however, Ambassador Gutierrez Evia did not meet further with the heirs’ representatives to discuss pay- ment of the claims. 46. In January of 1980, representatives of the heirs met twice in Mexico with Ambassador Sergio Gonzales Gaivez, who had succeeded Ambassador Gutierrez Evia as head of the Legal Advisor’s Office, to discuss payment by Mexico on the heirs’ land grant related claims. 47. In these meetings, Ambassador Gonzalez Galvez stated that the decision had been made “by the highest authorities’ in the Mexican Government that Mexico would promptly pay the compensation owed on the heirs’ land grant related claims. 48. Ambassador Gonzalez Galvez further stated that in order to establish the mechanism by which the claims would be paid, Mexico’s Treasury Department would im- mediately proceed to draft legislation for submission to and enactment by the Mexican Congress when it con- vened in September, 1980. 58a 49. Ambassador Gonzalez Galvez then informed the heirs’ attorneys and representatives that a meeting had been arranged for them with the Mexican Treasury De- partment on January 9, 1980, with the approval of the “highest authorities” in the Mexican Government. 50. Thereafter, the heirs’ attorneys, accompanied by three representatives of the Mexican Foreign Ministry, met with representatives of the Treasury Department on the designated date. 51. In that meeting the heirs’ representatives were told by the Treasury Department’s representatives that the legislation to establish the mechanisms to pay the land grant related claims would be drafted in the near future and ready for submission in September 1980, to the Mexican Congress. 52. After their January, 1980, meetings with rep- resentatives of the Mexican Government, the heirs’ at- torneys received a letter dated January 23, 1980, from the Mexican Treasury Department, signed by C. P. Roberto Dieguez Arams, chief of the Office of Public Debt, and a telegram from Ambassador Gonzalez Galvez dated March 5, 1980. A copy of the letter, with an Eng- lish translation, is attached as Exhibit G, and a copy of the telegram, with an English translation, is attached as Exhibit H. These communications acknowledged and re- iterated Mexico’s intention to proceed expeditiously to compensate the heirs. 53. The heirs and their representatives reasonably re- lied on Mexico’s oral and written representations, from 1941 through 1980, that it would pay the heirs claims. 54. In reasonable reliance upon the representations made by Mexico as set forth above, the heirs and their representatives, including Plaintiffs, engaged in substan- tial work, requiring several thousand hours of research, analysis and preparation to present their position to the Mexican Legal Advisor’s Office, and incurred expenses in excess of $100,000. 59a 55. The legislation which the Mexican Government’s representatives indicated in the January, 1980, meetings would be drafted and submitted to the Mexican Con- gress was never drafted nor submitted to the Congress. 56. In or about May, 1980, the heirs’ representatives were advised by the Mexican Foreign Ministry that it was uncertain when steps would be taken to bring about the payment of the claims. Notwithstanding the con- tinued efforts of the heirs to resolve this matter short of litigation, to date no steps have been taken by Mexico to bring about such payment. Mexico’s Jurisdictionally Relevant Contacts With The United States. 57. Paragraphs 1 through 56 set forth above are in- corporated herein by reference. 58. In addition to 28 U.S.C. § 1330(b), and contacts with the United States relating to the land grant claims at issue herein, each of which would be sufficient in themselves to sustain the exercise of personal jurisdic- tion over Mexico in this action, Plaintiffs allege on in- formation and belief that Mexico has other substantial and numerous contacts with the United States. Those contacts, which are also sufficient in themselves to sus- tain the exercise of personal jurisdiction over Mexico in this action, include: a. ownership and operation of a commercial air car- rier which serves many cities in the United States; b. operation in many cities of offices promoting tour- ism to Mexico; e. sale and delivery of petroleum products, natural gas, vegetables and other products to entities in the United States; and d. marketing of its or its agencies’ securities in the United States. 60a VI. CLASS CLAIM 59. Paragraphs 1 through 58 set forth above are in- corporated herein by reference. 60. As set forth above, in or about 1925 Mexico filed 433 land grant related loss claims against the United States with the General Claims Commission on behalf of the class members and their families as heirs of recipients of grants of land in Texas. 61. The 433 claims Mexico filed were individually valued by Mexico in 1925 as indicated in the claims booklet attached hereto as Exhibit C at $193,658,954.60. 62. By virtue of Mexico’s use, taking and confiscation of the claims referred to above without payment of just compensation, Mexico has violated the rights in property in the United States possessed by members of the Class and their families. Plaintiffs are therefore entitled to compensation from Mexico for such use, taking and con- fiscation of their property or that of their ‘amily mem- bers in an amount not less than $193,658,954.60, plus interest since at least 1941. 63. For its own public purposes Mexico asserted against the United States the claims of the Plaintiff Class and their families for the taking of their property, re- leased the United States from liability for those claims under the 1941 Treaty in exchange for valuable consider- ation, and thereby assumed and became liable to com- pensate the Class for these claims, but has failed to do so. By these acts, the Defendant has breached its fi- duciary duty and other legal obligations, express and implied, to the Plaintiff Class to compensate them for the taking of their property and has become liable to pay the Class members an amount not less than the value of the claims Defendant asserted against the United States, 2.e., $193,658,954.60 plus interest since at least 1941. 6la 64. Mexico solicited or otherwise acquired the claims of the Plaintiff Class members for the taking of their property, and having received valuable consideration therefor, has tortiously failed and omitted to return the value of said claims to members of the Class. Mexico is thus liable to pay the Class members damages for the loss of their property arising from this tortious conduct in an amount not less than the value of the claims, 7.e., $193,658,954.60 plus interest since at least 1941. VII. CLAIM OF AMINTA ZARATE 65. Plaintiff Aminta Zarate incurporates herein by reference paragraphs 1 through 64 set forth above. 66. Plaintiff Zarate is a direct descendent and heir of Jose Narciso Cavazos and Francisco Guerra, each of whom received one or more grants of land in Texas from Spain or Mexico, and Manuela Montemayor Cardenas who was, pursuant to a public sale in or about 1802, the successor in interest of the rights of Juan Jose Balli to land in Texas granted him by Spain. 67. In or about 1925 Mexico filed land grant related loss claims against the United States with the General Claims Commission on behalf of the heirs of Jose Narciso Cavazos, Francisco Guerra and Juan Jose Balli. The claim on behalf of the heirs of Jose Narciso Cavazos, valued by Mexico in 1925 at $12,100,000.00 plus inter- est, was assigned docket number 1081 by the General Claims Commission. The claim on behalf of the heirs of Francisco Guerra, valued by Mexico in 1925 at $44,280.00 plus interest, was assigned docket number 1153 by the General Claims Commission. The claim on behalf of the heirs of Juan Jose Balli, valued by Mexico in 1925 at $13,784,000.00 plus interest, was assigned docket num- ber 1105 by the General Claims Commission. 68. Plaintiff Zarate has succeeded by inheritance to the rights of her ancestors in these claims. 69. By virtue of Mexico’s use, taking and confiscation of the claims referred to in paragraph 67 above without 62a payment of just compensation, Mexico has violated the rights in property in the United States possessed by Plaintiff Zarate and by her family. Plaintiff is therefor entitled to compensation from Mexico for such use, tak- ing and confiscation of her property or that of her family members in an amount not less than her rightful share of $25,928,280.00 plus interest since at least 1941. 70. For its own public purposes Mexico asserted against the United States thw laims of Plaintiff Zarate and her family for the taking of their property, released the United States from liability for those claims under the 1941 Treaty in exchange for valuable consideration, and thereby assumed and became liable to compensate Plaintiff Zarate for these claims, but has failed to do so. By these acts, the Defendant has breached its fiduciary duty and other legal obligations, express and implied, to Plaintiff Zarate to compensate her for the taking of her property and has become liable to pay to Plaintiff Zarate an amount not jess than her rightful share of the value of the claims which Defendant asserted against the United States, i.e., $25,928,280.00 plus interest since at least 1941. 71. Mexico solicited or otherwise acquired the claims of Plaintiff Zarate and her family for compensation for the taking of their property, and having received valuable consideration therefor has tortiously failed and omitted to return the value of said claims to Plaintiff Zarate. Mexico is thus liable to pay Plaintiff Zarate damages for the loss of the property arising from this tortious con- duct in an amount not less than her rightful share of the value of the claims, 7.e., $25,928,280.00 plus interest since at least 1941. VIII. CLAIM OF LUIS RIOJAS 72. Plaintiff Luis Riojas incorporates herein by ref- erence paragraphs 1 through 64 set forth above. 6Sa 73. Plaintiff Riojas is a descendant and heir of Ig- nacio Galindo, who received two grants of land in Texas from Spain. 74. In or about 1925 Mexico filed two land grant re- lated loss claims against the United States with the Gen- eral Claims Commission on behalf of the heirs of Ignacio Galindo. The claims on behalf of the heirs of Ignacio Ga- lindo were assigned docket numbers 2860 and 3061 by the General Claims Commission. The claim assigned docket number 2860 was valued by Mexico in 1925 at $487,080.00 plus interest while the claim assigned docket number 3061 was valued at that date at $974,160.00 plus interest. 75. Plaintiff Riojas has succeeded by inheritance to the rights of his ancestors in these claims. 76. By virtue of Mexico’s use, taking and confiscation of the claims referred to in paragraph 74 above without payment of just compensation, Mexico has violated the rights in property in the United States possessed by Plain- tiff Riojas and his family. Plaintiff is therefor entitled to compensation from Mexico for such use, taking and confiscation of his property or that of his family mem- bers in an amount not less than his rightful share of $1,461,240.00 plus interest since at least 1941. 77. For its own public purposes Mexico asserted against the United States the claims of Plaintiff Riojas and his family for the taking of their property, released the United States from liability for those claims under the 1941 Treaty in exchange for valuable consideration, and thereby assumed and became liable to compensate Plaintiff Riojas for these claims, but has failed to do so. By these acts, the Defendant has breached its fiduciary duty and other legal obligations, express and implied, to Plaintiff Riojas to compensate him for the taking of the property and has become liable to pay to Plaintiff Riojas an amount not less than his rightful share of the value of 64a their claims which Defendant asserted against the United States, .e., $1,461,240.00 plus interest since at least 1941. 78. Mexico solicited or otherwise acquired the claims of Plaintiff Riojas and his family for compensation for the taking of their property, and having received valu- able consideration therefor has tortiously failed and omitted to return the value of said claims to Plaintiff Riojas. Mexico is thus liable to pay Plaintiff Riojas dam- ages for the loss of the property arising from this tortious conduct in an amount not less than his rightful share of the value of the claims, i.¢., $1,461,240.00 plus interest since at least 1941. IX. CLAIM OF FELIPA FLORES BENAVIDEZ 79. Plaintiff Felipa Flores Benavidez incorporates by reference paragraphs 1 through 64 set forth above. 80. Plaintiff Felipa Flores Benavidez is a direct de- scendant and heir of Juan Flores, who received two grants of land in Texas from Spain. 81. In or about 1925 Mexico filed two land grant re- lated loss claims against the United States with the Gen- eral Claims Commission on behalf of the heirs of Juan Flores. The claims on behalf of the heirs of Juan Flores were assigned docket numbers 1084 and 2833 by the Gen- eral Claims Commission. The claim assigned docket num- ber 1084 was valued by Mexico in 1925 at $354,260.00 plus interest while the claim assigned docket number 2833 was valued at that date at $354,240.00 plus in- terest. 82. Plaintiff Flores Benavidez has succeeded by in- heritance to the rights of her ancestors in these claims. 83. By virtue of Mexico’s use, taking and confiscation of the claims referred to in paragraph 81 above without payment of just compensation, Mexico has violated the rights in property in the United States possessed by Plain- tiff Flores Benavidez and by her family. Plaintiff is 65a therefor entitled to compensation from Mexico for such use, taking and confiscation of her property or that of her family members in an amount not less than her rightful share of $708,500.00 plus interest since at ‘east 1941. 84. For its own public purposes Mexico asserted against the United States the claims of Plaintiff Flores Benavidez and her family for the taking of their property, released the United States from liability for those claims under the 1941 Treaty in exchange for valuable consid- eration, and thereby assumed and became liable to com- pensate Plaintiff Flores Benavidez for these claims, but has failed to do so. By these acts, the Defendant has breached its fiduciary duty and other legal obligations, express and implied, to Plaintiff Flores Benavidez to compensate her for the taking of the property and has become liable to pay to Plaintiff Flores Benavidez an amount not less than her rightful share of the value of the claims which Defendant asserted against the United States, i.e., $708,500.00 plus interest since at least 1941. 85. Mexico solicited or otherwise acquired the claims of Plaintif” Flores Benavidez and her family for compen- sation for the taking of their property, and having re- ceived valuable consideration therefor has tortiously failed and omitted to return the value of said claims to Plain- tiff Flores Benavidez. Mexico is thus liable to pay Plain- tiff Flores Benavidez damages for the loss of the prop- erty arising from this tortious conduct in an amount not less than her rightful share of the value of the claims, i.e., $708,500.00 plus interest since at least 1941. X. CLAIM OF MARIA AGUIRRE DE SCHULTZ 86. Plaintiff Maria Aguirre de Schultz incorporates by reference paragraphs 1 through 64 set forth above. 87. Plaintiff Aguirre de Schultz is a descendant and heir of Manuel de los Santos Coy, who received a grant of land in Texas from Spain. 66a 88. In or about 1925 Mexico filed a land grant re- lated loss claim against the United States with the Gen- eral Claims Commission on behalf of the heirs of Manuel de los Santos Coy. The claim on behalf of the heirs of Manuel de los Santos Coy was assigned docket number 2776 by the General Claims Commission and was valued by Mexico in 1925 at $332,100.00 plus interest. 89. Plaintiff Aguirre de Schultz has succeeded by in- heritance to the rights of her ancestors in this claim. 90. By virtue of Mexico’s use, taking and confiscation of the claim referred to in paragraph 88 above without payment of just conpensation, Mexico has violated the rights in property in the United States possessed by Plaintiff Aguirre de Schultz and by her family. Plaintiff is therefor entitled to compensation from Mexico for such use, taking and confiscation of her property or that of her family members in an amount not less than her right- ful share of $332,100.00 plus interest since at least 1941. 91. For its own public purposes Mexico asserted against the United States the claim of Plaintiff Aguirre de Schultz and her family for the taking of their prop- erty, released the United States from liability for those claims under the 1941 Treaty in exchange for valuable consideration, and thereby assumed and became liable to compensate Plaintiff Aguirre de Schultz for this claim, but has failed to do so. By these acts, the Defendant has breached its fiduciary duty and other legal obligations, express and implied, to Plaintiff Aguirre de Schultz to compensate her for the taking of the property and has become liable to pay to Plaintiff Aguirre de Schultz an amount not less than her rightful share of the value of the claim which Defendant asserted against the United States, i.e., $332,100.00 plus interest since at least 1941. 92. Mexico solicited or otherwise acquired the claim of Plaintiff Aguirre de Schultz and her family for com- pensation for the taking of their property, and having 67a received valuable consideration therefor has tortiously failed and omitted to return the value of said claim to Plaintiff Aguirre de Schultz. Mexico is thus liable to pay Plaintiff Aguirre de Schultz damages for the loss of the property arising from this tortious conduct in an amount not less than her rightful share of the value of the claim, i.€., $332,100.00 plus interest since at least 1941. XI. CLAIM OF NIEVES GUERRERO CHAPA 93. Plaintiff Nieves Guerrero Chapa _ incorporates herein by reference paragraphs 1 through 64 set forth above. 94, Plaintiff Guerrero Chapa is a descendant and heir of Luciano Chapa, who received two grants of land in Texas from Mexico. 95. In or about 1925 Mexico filed two land grant re- lated loss claims against the United States with the Gen- eral Claims Commission on behalf of the heirs of Luciano Chapa. The claims on behalf of the heirs of Luciano Chapa were assigned docket numbers 2831 and 3046 by the General Claims Commission. The claim assigned docket number 2831 was valued by Mexico in 1925 at $354,240.00 plus interest while the claim assigned docket number 3046 was valued at that date at $797,040.00 plus interest. 96. Plaintiff Guerrero Chapa has succeeded by in- heritance to the rights of his ancestors in these claims. 97. By virtue of Mexico’s use, taking and confiscation of the claims referred to in paragraph 95 above without payment of just compensation, Mexico has violated the rights in property in the United States possessed by Plain- tiff Guerrero Chapa and by his family. Plaintiff is there- for entitled to compensation from Mexico for such use, taking and confiscation of his property or that of his family members in an amount not less than his right- 68a ful share of $1,151,280.00 plus interest since at least 1941. 98. For its own public purposes Mexico asserted against the United States the claims of Plaintiff Guerrero Chapa and his family for the taking of the property, re- leased the United States from liability for those claims under the 1941 Treaty in exchange for valuable consid- eration, and thereby assumed and became liable to com- pensate Plaintiff Guerrero Chapa for these claims, but has failed to do so. By these acts, the Defendant has breached its fiduciary duty and other legal obligations, express and implied, to Plaintiff Guerrero Chapa to com- pensate him for the taking of the property and has be- come liable to pay to Plaintiff Guerrero Chapa an amount not less than his rightful share of the value of the claims which Defendant asserted against the United States, i.e., $1,151,280.00 plus interest since at least 1941. 99. Mexico solicited or otherwise acquired the claims of Plaintiff Guerrero Chapa and his family for compen- sation for the taking of their property, and having re- ceived valuable consideration therefor has _tortiously failed and omitted to return the value of said claims to Plaintiff Guerrero Chapa. Mexico is thus liable to pay Plaintiff Guerrero Chapa damages for the loss of their property arising from this tortious conduct in an amount not less than his rightful share o [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1882%3A2. Public record. Not legal advice.