Petition for Writ of Certiorari — United Mexican States v. Olsen ex rel. Sheldon

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84-295"

No.

Office "ae Court. US

AUG 24 1994

IN THE

reme Court of the United ER L. STEVAS.

Sup th eee

OCTOBER TERM, 1984

UNITED MEXICAN STATES,

Petitioner,

Vv.

ERIN RAYNE OLSEN, A MINOR BY PATTY SHELDON, MA-

TERNAL GRANDMOTHER AND GUARDIAN AD LITEM, AND

URSULA BAINES SANCHEZ, BY AND THROUGH HER

GUARDIANS AD LIT®M JOSEPH J. CERNIE AND SALLY Z.

CERNIE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT GF APPEALS

FOR THE NINTH CIRCUIT

MANUEL R. ANGULO

101 Park Avenue

New York, New York 10178-0061

(212) 696-6000

Counsel for Petitioner,

Government of Mexico

CURTIS, MALLET-PREVOST,

COLT & MOSLE

GEORGE KAHALE, III

LIGHTNER & CASTRO

CHRISTOPHER J. SCHATZ

Of Counsel

August 24, 1984

QUESTIONS PRESENTED

(1) Whether it would be consistent with international law as

codified in the Foreign Sovereign Immunities Act of 1976,

Pub. L. No. 94-583, 90 Stat. 2891 (1976), codified at 28 U.S.C.

§§ 1330, 1332(a)f2)-(4), 1391(f), 1441(d), 1602-1611 (the

“FSIA”), to exercise jurisdiction over the Government of the

United Mexican States (“Mexico”) based solely on its conduct

in implementing the United States-Mexico Treaty on the Execu-

tion of Penal Sentences, Nov. 25, 1976, United States-Mexico,

28 U.S.T. 7400, T.1.A.S. No. 8718 (the “Prisoner Exchange

Treaty”)?

(2) Whether the exercise of jurisdiction over Mexico under

the circumstances of this case, which involves conduct centered

primarily in Mexico and Mexican airspace and which Mexico

submits does not involve conduct in the United States within

the meaning of the FSIA, would be consistent with the non-

commercial tort exception to sovereign immunity set forth in

28 U.S.C. § 1605(a)(5)?

(3) Whether the Ninth Circuit’s ruling on the discretionary

function exception in 28 U.S.C. § 1605(a)(S)(A), which ex-

pressly preserves the absolute immunity of foreign states from

claims alleging abuse of discretion by a governmental official

or employee, is consistent with this Court’s recent decision in

United States v. S.A. Empresa de Viacao Aerea Rio Grandense

(Varig Airlines), 52 U.S.L.W. 4833 (U.S. June 19, 1984), as

well as with the restrictive theory of sovereign immunity as

embodied in 28 U.S.C. § 1605(a)(5)(A)?

(4) Whether Mexico could reasonably have expected that it

might be required to respond in a court in the United States to

claims based on the manner in which it performed its obliga-

tions under the Prisoner Exchange Treaty, and thus whether the

exercise of jurisdiction over Mexico in this case would violate

“due process”?

TABLE OF CONTENTS

PAGE

QUESTIONS PRESEN Talis chu s cee esa bees es bh cae i

OPINIONS BELOW 00.5050 85 eee eke Peers l

JURISDICTION |... .......s44 4. 00 kes 2

CONSTITUTIONAL PROVISIONS, TREATIES AND

STATUTES INVOLVED? .isscvienwtseebeucceebias 2

STATEMENT OF THE (Ags: ssunh eee eee caresses 2

REASONS FOR GRANTING THE WRIT........... 4

INTRODUCTION. . ..s.+0h05 080 08d eee edd 5 be 4

I. MEXICO IS IMMUNE FROM DOMESTIC

JURISDICTION UNDER’ INTERNATIONAL

LAW IN RESPECT OF THE GOVERNMENTAL

CONDUCT Aft ERAGE» 00 casau eeu eeeeeensanss 6

Il. SECTION 1605(a)(S) IN ANY EVENT ONLY

APPLIES TO TORTS TAKING PLACE IN THE

UNIFED STATES « 1+ 000 bee eee eee keke. 11

Iii. THE NINTH CIRCUIT’S DECISION ON THE

DISCRETIONARY FUNCTION EXEMPTION

IS INCONSISTENT WITH THIS COURT'S RE-

CENT DECISION IN VARIG AIRLINES, AS

WELL AS WITH’ THE RESTRICTIVE

THEORY OF IMMUNITY AS EMBODIED IN

28 U.S.C. § 1GDSGREI cs in wee Oh ks dase 15

IV. THE ASSERTION OF JURISDICTION OVER

MEXICO UNDER THE CIRCUMSTANCES OF

THIS CASE VIOLATES DUE PROCESS ...... 18

CONCLUSION .. .... 5545 545.08 eee 22

APPENDIX. . .. ... «cs sas seen eee A-i

ill

TABLE OF AUTHORITIES

Cases: PAGE

Alfred Dunhill of London, Inc. v. Republic of Cuba,

STE eT eT Tee eT Te 6

Asociacion de Reclamantes v. The United Mexican

States, No. 83-1596, slip op. (D.C. Cir. June 5,

EE OS a ee ee Ce re 7, 10, 11

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398

ee ak 4 6 CRC OKRA COR AO8 EES A 5n.2

Carey v. National Oil Corp., 453 F. Supp. 1097

(S.D.N.Y. 1978), aff'd on other grounds, 592 F.2d 673

EE ee re rere ee eer ee reer er 7

Dalehite v. United States, 346 U.S. 15 (1953) .......5, 1S, 16

DePass v. United States, 479 F. Supp. 373 (D. Md. 1979) 16

Frankel v. Banco Nacional de Mexico S.A., No. 82 Civ.

6457, slip op. (S.D.N.Y. May 31, 1983), appeal dis-

missed, No. 83-7543 (2d Cir. July 12, 1983)......... 7

Frolova v. U.S.S.R., 558 F. Supp. 358 (N.D. Ill. 1983) 10

Goodwill Industries of El Paso v. United States, 218

De ee aces ec n beeen asawaues 17

Gray v. Bell, 712 F.2d 490 (D.C. Cir. 1983), cert. denied,

ee gk enw sadn aba eas eewe sae es 16

Hanson v. Denckla, 357 U.S. 235 (1958) ............. 18

International Shoe Co. v. Washington, 326 U.S. 310

rl, lee ly Cee a tee Meh e ws 48 we Ew OCS 18

Jet Line Services, Inc. v. M/V Marsa El Hariga, 462 F.

Sem, REGS CED. WEG. BDTE). wc cn ccawececcccccees 7

Kulko v. California Superior Court, 436 U.S. 84

ME VEE Serer Pee TET ET TEE ke 18, 20

Matter of Sedco, Inc., 543 F. Supp. 561 (S.D. Tex.

ee het an vada soa bed’s 7, 10, 12, 17

PAGE

McKeel v. Islamic Republic of Iran, 722 F.2d 582 (9th

Sa GGA RL keke ceeussk bad bo 0ehbbaesen deine i2, 13

Olsen v. Government of Mexico, 729 F.2d 641 (9th Cir.

1984), as amended, Nos. 83-5626 and 83-5629, slip op.

ee ee ee SE ce eec eck kadasbcuawes was passim

Olsen v. Government of Mexico, No. 82-0413-JLI(M),

— f Sk Re Re ere ere ree 2

Persinger v. Islamic Republic of Iran, 729 F.2d 835

i, SE vhs % chk ec dbevcseessoeeacents is, 24, 83

Rappenecker v. United States, 509 F. Supp. 1024 (N.D.

Sn L434 KAGE OA Adee 4d edna eee chee 17

Schooner Exchange v. M’Faddon, 11 U.S. (7 Cranch)

ot Sy grey ee eee a oy ree 6, 21

Smith v. United States, 375 F.2d 243 (Sth Cir.), cert.

Se ek ECA cn 8 now ecce seen danse 16

Texas Trading & Milling Corp. v. Federal Republic of

Nigeria, 647 F.2d 300 (2d Cir. 1981), cert. denied, 454

SE SS cA cal 6ende eb dbehaekisaehaenases 7

Thompson v. United States, 592 F.2d 1104 (9th Cir.

Ee pe are eee pene ee PS weer cree pe ee 16

United States v. S.A. Empresa de Vicao Aerea Rio

Grandense (Varig Airlines), 52 U.S.L.W. 4833 (U.S.

DE TE, DS a.dk ih oe kha tdaass-ae i, 5, 16, 16n.6, 17

Velidor v. L/P/G Benghazi, 653 F.2d 812 (3d Cir. 1981),

cort. Gismissed, 453. U.S. FED (IGEZ) .... cc cccccccns 7

Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480,

$F Ey eee Sr eran 7

World-Wide Volkswagen Corp. v. Woodson, 444 U.S.

I ia bcs kh chak 4% 4% dA cacaetel i beeeewee as 18, 19

Yessenin-Volpin v. Novosti Press Agency, 443 F. Supp.

SNC PE 1k sob eases UKRRAA mane eee es 7

PAGE

Constitutional Provisions:

U.S. Const. amend. V....... aha wkd cede eee 2

Treaties:

European Convention on State Immunity, May 16, 1976,

Europ. T.S. No. 74, reprinted in 11 Int’] Legal Mate-

i bt re ere ee he 7, 12

Treaty on the Execution of Penal Sentences, Nov. 25,

1976, United States—Mexico, 28 U.S.T. 7400,

Beat PU PEE oak ck ceweskenkaun eee eee passim

Statutes:

Federal Aviation Act of 1958, Pub. L. No. 85-426, 72

Stat. 731 (1958), codified as amended at 49 U.S.C.

Federal Tort Claims Act, 62 Stat. 984 (1948), codified at

Be Ue... B Be & 0 bode heck oka ria eee a

Foreign Sovereign Immunities Act of 1976, Pub. L. No.

94-583, 90 Stat. 2891 (1976), codified at 28 U.S.C.

§§ 1330, 1332(a)(2)-(4), 1391(f), 1441(d), 1602-1611 passim

y BIR Rome gS | eereeewrerererey er rrr yt 2

Other Authorities:

House Report (Judiciary Committee), H.R. Rep. No.

1487, 94th Cong., 2d Sess. 18, reprinted in [1976] U.S.

Code Cong. & Ad. News 6604 ................608. 8

Letter from Jack B. Tate, Acting Legal Adviser, Dep’t of

State, to Acting Attorney General Philip B. Perlman

(May 19, 1952), reprinted in 26 Dep’t State Bull. 984

(IRE och Sted oc cces bos a eee 6

State Immunity Act, 1978, ch. 33 (U.K.), reprinted in 17

Int’] Legal Materials 1123 (1978) .................8. 8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

UNITED MEXICAN STATES,

Petitioner,

ERIN RAYNE OLSEN, A MINOR By PATTY SHELDON, MA-

TERNAL GRANDMOTHER AND GUARDIAN AD LITEM, AND

URSULA BAINES SANCHEZ, BY AND THROUGH HER

GUARDIANS AD LITEM JOSEPH J. CERNIE AND SALLY Z.

CERNIE,

Respondents.

~—

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OPINIONS BELOW

The initial opinion of the court of appeals, reported at 729

F.2d 641 (9th Cir. 1984), is reprinted in the Appendix hereto at

A-1.' That opinion was withdrawn by the court of appeals and

an amended opinion was filed, Nos. 83-5626 and 83-5629, slip

op. (9th Cir. July 16, 1984) (the ‘‘Amended Opinion’’), which

is as yet unreported. The Amended Opinion is reprinted at

l. References in the form ‘‘A-____”” are to pages of the Appendix to

this petition.

A-23. The unreported memorandum decision and order of the

United States District Court for the Southern District of

California, Civil No. 82-0413-JLI(M), is reprinted at A-39.

JURISDICTION

The initial opinion of the court of appeals was issued on

March 30, 1984. (A-1.) The Amended Opinion was issued on

July 16, 1984. (A-23.) On June 14, 1984, by order of this

Court, the time for petitioner to file a petition for a writ of

certiorari was extended to and including August 27, 1984.

(A-47.) This Court’s jurisdiction is invoked pursuant to 28

U.S.C. § 12541).

CONSTITUYTIONAL PROVISIONS, TREATIES

AND STATUTES INVOLVED

The constitutional provision involved in this case is the Fifth

Amendment to the United Staies Constitution, set out at A-48.

The treaty involved is the United States-Mexico Treaty on the

Execution of Penal Sentences, Nov. 25, 1976, United States-

Mexico, 28 U.S.T. 7400, T.1.A.S. No. 8718 (the ‘**Prisoner

Exchange Treaty’’), set out at A-49. The statute involved is the

Foreign Sovereign Immunities Act of 1976, Pub. L. No.

94-583, 90 Stat. 2891 (1976), codified at 28 U.S.C. §§ 1330,

1332(a)(2)-(4), 1391(f), 1441{(d), 1602-1611 (the ‘‘FSIA’’), set

out at A-66.

STATEMENT OF THE CASE

In 1976, the United States of America and Mexico entered

into the Prisoner Exchange Treaty for the exchange of pris-

oners of their respective nationalities. (A-49.) This case arises

out of an attempted transfer of prisoners from Mexican

prisons to United States authorities at Tijuana, Baja Califor-

nia, Mexico, pursuant to the Prisoner Exchange Treaty.

9 eee ee *

In 1979, Lotus Marie Sanchez, mother of the respondent

Sanchez, and Julie Sheldon and Steven Olsen, parents of the

respondent Olsen, were to be transferred to U.S. authorities

under the Prisoner Exchange Treaty. Those persons had been

convicied of drug smuggling offenses in Mexico. The Mexican

and U.S. authorities agreed upon Tijuana as the place where

penal jurisdiction over the prisoners would be transferred.

U.S. law enforcement officials would then transport the pris-

oners across the border into the United States.

On October 26, 1979, the prisoners and their guards boarded

an airplane owned and operated by the Procuraduria General

de la Republica (Office of the Attorney General) of Mexico in

Merida, Yucatan to effectuate the transfer. The plane refueled

at Monterrey, Nuevo Leon, and then flew on towards its

destination, Tijuana. At Tijuana fog had substantially reduced

visibility at the airport. The pilot made one attempt to land

using a visual approach from the south, which was aborted.

The pilot and Tijuana Air Control decided that an instrument

landing system (‘‘ILS’’) approach should be used. That ap-

proach required the plane to pass briefly over the United States

because of the direction of the border in the vicinity of ILS

runway 09, the runway which had to be used. Mexico and the

United States had prepared for such an eventuality by entering

into a Letter of Agreement, effective April 1, 1979 (the “Letter

of Agreement”), which contemplates the assignment of zones

of airspace to Tijuana Air Traffic Control in those instances

when Mexican aircraft required the use of ILS runway 09,

including such emergency circumstances as these.

The first attempt at an ILS landing was unsuccessful. While

over Mexico the pilot decided to attempt again to land in

Tijuana as scheduled and circled for a second ILS landing

approach. On this second approach the plane struck a utility

pole some 1,300 yards north of the border and crashed, killing

all on board.

Respondents brought suit against Mexico in the United

States District Court for the Southern. District of California.

The jurisdiction of the district court was invoked pursuant to

28 U.S.C. § 1330. The district court granted a motion by

Mexico to dismiss for lack of jurisdiction. (A-39.) On appeal,

the Ninth Circuit reversed, holding that Mexico was not

entitled to sovereign immunity by virtue of 28 U.S.C.

§ 1605(a)(5) and that Mexico was therefore subject to the

jurisdiction of the district court. (A-1.) Although the court of

appeals amended its opinion on July 16, 1984, its holding

remained the same. (A-23.)

REASONS FOR GRANTING THE WRIT

INTRODUCTION

The Government of Mexico respectfully submits that this

case involves important questions of international law, federal

statutory law and constitutional law which require decision by

this Court. At issue is whether Mexico may be held responsible

in a court in the United States for its actions in implementing a

treaty with the United States, by virtue of a provision of the

FSIA which Mexico submits was never intended to reach such

conduct.

The Government of Mexico has reiterated its position with

respect to the international law issue, as well as its concern

over the question of jurisdiction in this case, in a diplomatic

note delivered to the State Department. See Diplomatic Note

No. 6275 from the Embassy of Mexico to the United States

Department of State, dated May 24, 1984. (A copy of the

Mexican Diplomatic Note and a translation thereof are re-

printed at A-78.)

Mexico undertook its obligations pursuant to the Prisoner

Exchange Treaty in 1976 in the context of international law (as

it then existed and, indeed, as it presently exists), under which

a state cannot be subjected to the jurisdiction of the courts of

another state in respect of the performance of its purely

governmental functions. Mexico does not believe that Congress

intended to abrogate this principle of international law when it

enacted the FSIA, particularly where the conduct at issue

involves implementation of a treaty concluded prior to the

effective date of the FSIA. The Ninth Circuit’s decision consti-

tutes a substantial departure from what Mexico submits was a

iebeoneatin

previously existing consensus among nations on this point of

international law sufficient to warrant this Court’s attention.’

(See pp. 6-11, infra.)

In addition to extending jurisdiction over foreign states to

governmental conduct immune from local jurisdiction under

international law, the Ninth Circuit’s decision involves an

application of 28 U.S.C. § 1605(a)(5) to alleged tortious con-

duct centered outside the United States, a result inconsistent

with both international law and the legislative history of the

FSIA. (See pp. 11-14, infra.) (A-9-10, 729 F.2d at 646-47.)

(A-29-30, Amended Opinion at 7-10.)

The court of appeals’ decision also involves an interpretation

of the ‘‘discretionary function’’ exception to jurisdiction found

in 28 U.S.C. § 1605(a)(S)(A) which contradicts this Court’s

decisions in Dalehite v. United States, 346 U.S. 15 (1953), and

United Siates v. S.A. Empresa de Vicao Aerea Rio Grandense

(Varig Airlines), 52 U.S.L.W. 4833 (U.S. June 19, 1984)

(‘‘ Varig Airlines’’), rendered in the context of the Federal Tort

Claims Act, 28 U.S.C. § 2680(a), (the ‘‘FTCA’’) as well as

lower court decisions under the FSIA. (See pp. 15-18 infra.)

(A-10-13, 729 F.2d at 647-48.) (A-30-33, Amended Opinion at

10-14.) Indeed, the Ninth Circuit’s decision does not even refer

to this Court’s recent decision in Varig Airlines, but instead

applies a mechanical test for determining the applicability of

the discretionary function exemption which has been rejected

in the context of the FTCA and is even less apt in the context

of st ts against foreign states.

Finally, the assertion of jurisdiction over Mexico in this case

raises serious questions of constitutional law. Even if Congress

had intended to provide for the assertion of jurisdiction under

circumstances such as those present here (which Mexico sub-

mits is plainly not the case), reasonable notice of such a

departure from previous practice and prevailing international

law should have been given to all foreign states.

1 8 See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 407 (1964)

(where this Court granted a petition for a writ of certiorari ‘‘because the

issues involved bear importantly on the conduct of the country’s foreign

relations and more particularly or the proper role of the Judicial Branch in

this sensitive area’’).

This Court has made clear that the element of foreseeability

is critical to the constitutional issue, in that a party may not be

subject to personal jurisdiction where the nature and quality of

its contacts with the forum are not such that it may be held toa

reasonable expectation of suit there. In this case, as is demon-

strated in points I-III below, no such reasonable expectation of

suit existed. In entering into the Prisoner Exchange Treaty,

Mexico was entitled to rely upon the principle of sovereign

immunity under international law to which the United States

had adhered prior to the FSIA. Subsequently, Mexico could

also be expected to rely upon Congress’ announced purpose of

codifying international law in the FSIA. Whatever may be the

precise scope of the FSIA with respect to tort claims against

foreign states, neither the statute itself nor its legislative history

provides the notice necessary to overcome a foreign state’s

reasonable anticipation of immunity from suit in cases such as

this case, which involves the performance by a foreign state of

purely governmental functions in implementing a treaty with

the United States. Thus, since Mexico could not reasonably

have anticipated the possibility of being haled before the

domestic courts of the United States, the assertion of jurisdic-

tion over Mexico would constitute a violation of due process

under the standards enunciated by this Court. (See pp. 18-2!

infra.)

MEXICO IS IMMUNE FROM DOMESTIC JURISDICTION

UNDER INTERNATIONAL LAW IN RESPECT OF THE

GOVERNMENTAL CONDUCT AT ISSUE

Under universally recognized principles of international law,

sovereign states enjoy immunity from the jurisdiction of the

domestic courts of other states. Traditionally, this immunity

was absolute. Schooner Exchange v. M’Faddon, 11 U.S. (7

Cranch) 116 (1812). More recently, many states, including the

United States, have adopted the so-called “restrictive theory”

of sovereign immunity, permitting suits against foreign states

when they engage in commercial or private transactions. See

Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S.

682 (1976); Letter from Jack B. Tate, Acting Legal Adviser,

Dep’t of State, to Acting Attorney General Philip B. Perlman

(May 19, 1952), reprinted in 26 Dep’t State Bull. 984 (1952)

(the “Tate Letter”). See also State Immunity Act, 1978, ch. 33

(U.K.), reprinted in 17 Int'l Legal Materials 1123 (1978);

European Convention on State Immunity, May 16, 1976,

Europ. T.S. No. 74, reprinted in 11 Int’! Legal Materials 470

(1972). Even under the “restrictive theory” of immunity, how-

ever, it has remained a universally accepted principle that states

enjoy immunity “with regard to sovereign or public acts.” Tate

Letter at 984 (emphasis added). See Asociacion de Reclameantes

v. The United Mexican States, No. 83-1596, slip op. (D.C. Cir.

June 5, 1984); Frankel v. Banco Nacional de Mexico, S.A.,

No. 82 Civ. 6457, slip op. (S.D.N.Y. May 31, 1983), appeal

dismissed, No. 83-7543 (2d Cir. July 12, 1983); Matter of

Sedco, Inc., 543 F. Supp. 561, 564-65 (S.D. Tex. 1982); Carey

v. National Oil Corp., 453 F. Supp. 1097, 1102 (S.D.N.-Y.

1978), aff'd on other grounds, 592 F.2d 673 (2d Cir. 1979);

Yessenin-Volpin v. Novosti Press Agency, 443 F. Supp. 849,

855-56 (S.D.N.Y. 1978). See generally Verlinden B.V. v. Central

Bank of Nigeria, 461 U.S. 480, 103 S. Ct. 1962, 1967-68

(1983).

In 1976, Congress enacted the FSJA, which became effective

in January, 1977. In so doing, Congress sought to achieve

uniformity in the application of the rules of sovereign immu-

nity. Most importantly, however, Congress emphasized that the

FSIA did not constitute a departure from accepted principles

of international law. Rather, its stated primary purpose was to

codify the restrictive theory of sovereign immunity, thus per-

mitting suit against sovereign states when they engage in

non-sovereign functions, while at the same time preserving

their immuniiy when they act qua sovereign. Verlinden, 103 S.

Ct. at 1968-69; Asociacion de Reclamantes, slip op. at 4-5;

Velidor v. L/P/G Benghazi, 653 F.2d 812, 817 (3d Cir. 1981),

cert. dismissed, 455 U.S. 929 (1982); Texas Trading & Milling

Corp. v. Federal Republic of Nigeria, 647 F.2d 300, 310 (2d

Cir. 1981), cert. denied, 454 U.S. 1148 (1982); Jet Line Ser-

vices, Inc. v. M/V Marsa El Hariga, 462 F. Supp. 1165, 1170

(D. Md. 1978). As expressly siated in the legislative history of

the FSIA:

First, the bill would codify the so-called “restrictive”

principle of sovereign immunity, as presently recognized

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 Depart-

ment 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.

House Report (Judiciary Committee), H.R. Rep. No. 1487,

94th Cong., 2d Sess. 18, reprinted in [1976] U.S. Code Cong.

& Ad. News 6604, 6605 (the “House Report”).

Moreover, the congressional “Findings and declaration of

purpose” of the FSIA itself indicates Congress’ view of the

restrictive theory and reveals the basic principles underlying the

statute:

Under international law, states are not immune from the

jurisdiction of foreign courts insofar as their commercial

activities are concerned, and their commercial property

may be levied upon for the satisfaction of judgments

rendered against them in connection with their commer-

cial activities. Claims of foreign states to immunity should

henceforth be decided by courts of the United States and

of the States in conformity with the principles set forth in

this chapter.

28 U.S.C. § 1602. It is against this background of international

law and the FSIA’s legislative history that the noncommercial

tort exception to sovereign immunity contained in 28 U.S.C.

§ 1605(a)(5) must be viewed.’

It is also in this light that, whatever the construction now placed on

§ 1605(a)(S) may be, Mexico’s reasonable expectations should be assessed for

purposes of the constitutional issue discussed in point IV. See pp. 18-21,

infra.

The FSIA gives effect to the principle of immunity by

affirmatively granting to foreign states immunity from the

jurisdiction of U.S. covrts, subject to certain exceptions. 28

U.S.C. § 1604. The coditication of the “restrictive theory” of

immunity was effected by providing for various exceptions to

the immunity principle in 28 U.S.C. § 1605. Most non-sov-

ereign activity falls under the rubric of “commercial activity”

and is addressed by the immunity exception contained in 28

U.S.C. § 1605(a)(2), which provides that a foreign state may

be subjected to suit in cases where the claim is based on a

commercial activity of a foreign state having a specified nexus

with the United States. However, apart from “commercial

activity”, there remains another form of activity which may

properly be characterized as private or non-sovereign in nature

and which thus falls outside the umbrella of the immunity

principle under international law. For this reason, Congress

enacted 28 U.S.C. § 1605(a)(5), known as the noncommercial

tort exception to immunity, which provides:

(a) A foreign state shall not be immune from the jurisdic-

tion of courts of the United States or of the States in any

case—

(5) not otherwise encompassed in paragraph (2) above

[commercial activity of a foreign state], in which money

damages are sought against a foreign state for personal

injury or death, or damage to or loss of property, occur-

ring 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 employment; except this paragraph

shall not apply to—

(A) any claim based upon the exercise or performance or

the failure to exercise or perform a discretionary function

regardless of whether the discretion be abused, or

(B) any claim arising out of malicious prosecution, abuse

of process, libel, slander, misrepresentation, deceit, or

interference with contract rights.

The legislative history of this provision makes clear that its

main purpose was to deal with the problem of traffic accidents

in the United States involving automobiles owned by foreign

embassies. As stated in the House Report: “The purpose of

Section 1605(a)(5) is to permit the victim of a traffic accident

or other noncommercial tort to maintain an action against the

foreign state to the extent otherwise provided by law.” House

Report, supra at 6620. See Asociacion de Reclamantes, slip op.

at 15 (“The primary 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 accidents

which they cause in this country. . . . We decline to convert

this into a broad exception for all alleged torts that bear some

relationship to the United States.” (emphasis added)); Matter

of Sedco, Inc., 543 F. Supp. at 567 (“The primary purpose of

this exception is to cover the problem of traffic accidents by

embassy and governmental officials in this country.”).

While § 1605(a)(5) is drafted broadly in recognition of the

difficulties inherent in formulating an all-inclusive enumera-

tion of permissible tort actions, nowhere is there any support

for the proposition that § 1605(a)(5) was intended to reach

sovereign activity traditionally accorded immunity under in-

ternational law. Such an interpretation would be flatly incon-

sistent with Congress’ announced purpose of codifying

international law and would place the United States in a unique

position in the international community of states. As stated in

Frolova v. U.S.S.R., 558 F. Supp. 358, 362-63 (N.D. Ill. 1983),

which involved the denial of an emigration permit by Soviet

authorities:

After reviewing the statute and its legislative history,

however, it is this court’s opinion that the FSIA was not

designed to provide jurisdiction over a foreign sovereign

in a case such as this. The Act specifically retained

sovereign immunity for the foreign state’s public

acts. . . . Additionally, the tenor of the legislative history

suggests that suits are to be allowed only for ordinary

claims, such as contract or tort claims arising from the

foreign states activities in the United States.

See also Asociacion de Reclamantes, No. 83-1596, slip op.

(D.C. Cir. June 5, 1984).

In the instant case, Mexico’s conduct was purely governmen-

tal in nature; indeed, the Ninth Circuit’s decision assumes the

governmental nature of the conduct in question. (A-6, 729 F.2d

at 645.)(A-27-28, Amended Opinion at 7.) Mexico was imple-

menting a treaty concluded with the United States. The Pris-

oner Exchange Treaty itself deals with a _ totally

noncommercial, nonprivate, governmental* subject matter,

namely, the exercise of penal jurisdiction over prisoners and

the transfer of such jurisdiction by one state to another.

Whatever may be the precise delimitation of 28 U.S.C.

§ 1605(a)(S5), Mexico respectfully submits that this action cer-

tainly does not involve the kind of noncommercial tort which

Congress intended to cover by enacting that provision.

SECTION 1605(a)(5) IN ANY EVENT ONLY APPLIES TO

TORTS TAKING PLACE IN THE UNITED STATES

Apart from the issues raised above concerning the substan-

tive coverage of § 1605(a)(5), that provision was only designed

to reach torts taking place in the United States. The legislative

history unequivocally states: ‘‘[T]he tortious act or omission

must occur within the jurisdiction of the United States.”’

House Report, at 6619. The lower courts, including the Ninth

Circuit, have generally recognized this territorial limitation on

the scope of § 1605(a)(5). Asociacion de Reclamantes v. The

United Mexican States, slip op. at 15 (‘‘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,.. . ,

and indeed we think its essential locus would remain in Mex-

ico.’’) (citation omitted); Persinger v. Islamic Republic of Iran,

729 F.2d 835, 840, 842 (D.C. Cir. 1984) (‘‘Congress’ principal

concern was with torts committed in this country. . . . [BJoth

the tort and the injury must occur in the United States.’’);

McKeel v. Islamic Republic of Iran, 722 F.2d 582, 588 (9th

Cir. 1983) (The ‘‘practice is that a state loses its sovereign

immunity for tortious acts only where they occur in the

territory of the forum state.’’); Matter of Sedco, Inc., 543

F. Supp. at 567 (‘“‘[t]he tort, in whole, must occur in the

United States’’).

This interpretation of § 1605(a)(5) also conforms to interna-

tional law which Congress intended to codify in the FSIA. See

McKeel, 722 F.2d at 588; European Convention on State

Immunity, supra at Art. 11 (no immunity “‘if the facts which

occasioned the injury or damage occurred in the territory of

the State of the forum’’); U.K. State Immunity Act, 1978,

supra at ch. 33, § 5 (no immunity for injury ‘‘caused by an act

or omission in the United Kingdom’’). Congress simply did not

intend to extend the jurisdiction of U.S. courts over noncom-

mercial tortious conduct of foreign states unless the tort

occurred, in whole, in the territory of the United States. See

also Persinger, 729 F.2d at 839-40.

In the instant case, the bulk of the conduct complained of

took place either in the territory of Mexico or in Mexican

airspace. The decision of the pilot to make a second ILS

landing approach after he had missed the first approach was

made in Mexico. All of the acts or omissions of the air traffic

controllers at Tijuana Air Traffic Control must necessarily

have occurred in Mexico. The training of the pilot and the

maintenance of the plane all took place in Mexico. Moreover,

although the Ninth Circuit based its decision on an allegation

that some tortious act might also have taken place aboard the

plane while the plane was momentarily in U.S. airspace,

(A-8-10, 729 F.2d at 646-47) (A-28-30, Amended Opinion at

8-9), Mexico submits that none of the alleged tortious conduct

took place in the territory of the United States within the

meaning of § 1605(a)(5).

The United States is defined in the FSIA to include ‘‘all

territory and waters, continental or insular, subject to the

jurisdiction of the United States.’’ 28 U.S.C. § 1603(c).* It is

true that the United States does assert sovereignty over the

airspace above U.S. territory, but that position, which is

extraneous to the FSIA, is not determinative of the intended

scope of the FSIA when considering the issue presented here,

i.e., whether Congress intended to assert jurisdiction over

foreign states in respect of alleged tortious acts which do not

actually occur in U.S. territory.

In other contexts, the courts of appeals have rejected the

notion that § 1605(a)(5) applies to tortious conduct occurring

in areas over which the United States may be said to have

jurisdiction, but which are nevertheless outside the territory of

the United States as that term is commonly understood. Thus,

for example, the courts have rejected the notion that tortious

conduct in U.S. embassies overseas constitutes tortious con-

duct in the United States. As stated by the Ninth Circuit itself

in McKeel, 722 F.2d at 587: ‘‘Although a literal reading of the

statute supports this argument, we decline to accept it because

we believe the intent of Congress was to the contrary.’’ See

also Persinger, 729 F.2d at 841 (‘‘These consequences [of

reading the FSIA to apply to all areas over which the United

States has any jurisdiction] would entail not only serious

inconvenience and injustice but also embarrassment to our

foreign relations.’’). Similarly, applying § 1605(a)(5) in this

case would be contrary to Congress’ intent and may be disad-

vantageous to the foreign relations interests of the United

States.

Apart from the technical questions raised by the location of

the alleged tortious conduct, it is important to note that at all

times up to the crash of the airplane, the prisoners remained

under the exclusive penal jurisdiction of Mexico. The United

States only receives jurisdiction over prisoners upon their

physical transfer to U.S. authorities, which was to take place in

4. Compare this definition with the definition of ‘‘United States’’ in

ihe Federal Aviation Act of 1958, Pub. L. No. 85-426, 72 Stat. 731 (1958),

which expressly provides that the term ‘‘United States’’ includes both the

territorial waters and ‘‘the overlying airspace thereof.’’ Codified as amended

at 49 U.S.C. § 1301(41) (1978).

Tijuana in this case. See Prisoner Exchange Treaty, art. V(1).

(A-54-55.) At all times up to the actual transfer, control over

the treatment of the prisoners was exclusively in the hands of

the Mexican authorities.° To interpret § 1605(a)(5) as overrid-

ing such Mexican authority would seriously undermine the

purpose of the Prisoner Exchange Treaty and thrust U.S.

courts into an area clearly unintended by Congress, i.e., the

review and adjudication of a foreign state’s actions with

respect to prisoners under its exclusive custody and control.

Moreover, even if an alleged tortious act occurring in U.S.

airspace could otherwise form the basis of jurisdiction under

§ 1605(a)(5), the indisputable fact remains that the bulk of the

alleged tortious conduct in this case took place either in Mexico

or in Mexican airspace. Thus, the Ninth Circuit’s decision

would, if permitted to stand, resuit in an unworkable situation.

The tortious conduct, if any, in U.S. airspace is inseparable

from the conduct concededly occurring in Mexico and Mexican

airspace. The latter conduct is clearly beyond the jurisdiction

of U.S. courts under § 1605(a)(5) and therefore no judgment

could be based thereon. To permit this case to go forward

based solely on that portion of the alleged tortious conduct

which occurred in U.S. airspace would thus result in the

anomalous situation of adjudication of one small part of a.

chain of events the majority of which are beyond the jurisdic-

tion of U.S. courts. This anomalous situation underscores the

fact that the instant action, unlike ordinaiy tort actions involv-

ing traffic accidents and the like which by their nature occur

entirely within the United States, is not one which Congress

had in mind in enacting 28 U.S.C. § 1605(a)(5).

In sum, since none of the alleged tortious acts in this case

took place in the territory of the United States, and since the

bulk of the alleged tortious conduct indisputably occurred in

Mexico and Mexican airspace, Mexico respectfully submits

that it is not subject to jurisdiction under 28 U.S.C.

§ 1605(a)(5).

Me Indeed, even after a transfer, the transferring state would retain

certain aspects of jurisdiction over the offender. See, e.g., Prisoner Exchange

Treaty, art. VI. (A-56.)

THE NINTH CIRCUIT’S DECISION ON THE DISCRE-

TIONARY FUNCTION EXEMPTION IS INCONSISTENT

WITH THIS COURT’S RECENT DECISION IN VARIG

AIRLINES, AS WELL AS WITH THE RESTRICTIVE

THEORY OF IMMUNITY AS EMBODIED IN 28 U.S.C.

§ 1605(a)(5)(A)

Section 1605(a)(5) contains a provision expressly preserving

a foreign state’s immunity from any tort claim based on an

alleged abuse of discretion by an employee of the state. 28

U.S.C. § 1605(a)(5)(A). In determining the applicability of that

provision, the Ninth Circuit applied the mechanical opera-

tional/pianning test developed in the context of a similar

provision of the FTCA, 28 U.S.C. § 2680(a). That test, how-

ever, has recently been repudiated by this Court in a decision

under the FTCA and is particularly inappropriate in the

context of suits against foreign states.

The legislative history of the FSIA, House Report, supra at

6620, indicates that a certain parallel may be drawn between

the discretionary function exemption in 28 U.S.C.

§ 1605(a)(S5)(A) and the provision of the FTCA preserving the

absolute immunity of the United States from suits alleging

abuse of discretion by government employees. 28 U.S.C.

§ 2680(a). In the seminal case on 28 U.S.C. § 2680(a), Dale-

hite v. United States, 346 U.S. 15 (1953), plaintiffs alleged that

U.S. Government employees involved in supervising the pro-

duction of fertilizer for shipment to European countries as

foreign aid in the aftermath of World War II abused their

discretion by: including an explosive compound in the fertil-

izer’s formula; failing to conduct a reasonable investigation of

safety factors; carelessly adopting standards as to bagging

temperature, type of baggage and labeling of baggage used;

choosing the wrong coating for individual fertilizer pellets; and

failing to oversee properly the loading of the fertilizer. Thus, it

was alleged that government officials had been negligent in the

adoption and implementation of the fertilizer export aspect of

the post-World War II foreign aid program. Nevertheless, this

Court held that the U.S. Government retained its absolute

immunity from suit for such alleged abuse of discretion.

Since Dalehite, the federal courts have struggled in an effort

to apply the principles therein established. Some circuits,

including the Ninth Circuit, have adopted a test based upon

whether the actions involved were carried out at the ‘‘plan-

ning’’ or ‘‘operational’’ level, permitting suit in the latter

instance. Thompson v. United States, 592 F.2d 1104, 1111 (9th

Cir. 1979). Others have rejected this approach as unworkable,

preferring a functional approach focusing on the nature and

quality of discretion involved. Gray v. Bell, 712 F.2d 490 (D.C.

Cir. 1983), cert. denied, 104 S. Ct. 1593 (1984); Smith v.

United States, 375 F.2d 243 (Sth Cir.), cert. denied, 389 U.S.

841 (1967); De Pass v. United States, 479 F. Supp. 373 (D. Md.

1979).

Most recently, this Court has clarified the scope of the

discretionary function exception under the FTCA in Varig

Airlines. In particular, this Court, reversing two Ninth Circuit

decisions, rejected the operational/planning test applied by the

Ninth Circuit, stating: “[I]}t is the nature of the conduct, rather

than the status of the actor, that governs whether the discre-

tionary function exception applies in a given case.” Varig

Airlines, 52 U.S.L.W. at 4837. Yet, despite this Court’s clear

rejection of the very test applied by the Ninth Circuit in this

case, (A-11-12, 729 F.2d at 648) (A-31, Amended Opinion at

11), the Ninth Circuit’s decision does not even mention this

Court's decision in Varig Airlines.®

Moreover, applying the discretionary function exception in

the context of suits against foreign states necessarily involves

additional considerations concerning the international law of

6. Varig Airlines was decided after the original opinion of the Ninth

Circuit in this case was filed. (A-1.) However, the Ninth Circuit withdrew that

opinion and filed its Amended Opinion on July 16, 1984. (A-23.) The

Amended Opinion changed parts of the original discussion of the Ninth

Circuit on 28 U.S.C. § 1605(a)(S(A), but left intact the operational/planning

analysis which this Court rejected in Varig Airlines. (A-31, Amended Opinion

at 11.)

foreign sovereign immunity and sensitive issues of foreign

relations obviously not relevant under the FTCA. For example,

in Matter of Sedco, Inc., an action against a Mexican govern-

ment agency alleging negligence by that agency in connection

with a 1979 oil well blowout off the Mexican coast, the court

exhibited a high degree of sensitivity to the issue of jurisdiction

over the governmental conduct of a foreign state and held the

discretionary function exemption in the FSIA applicable:

Pemex, in this case, was executing a national plan

formulated at the highest levels of the Mexican govern-

ment by exploring for Mexico’s natural resources. Any

act performed by a subordinate of Pemex in furtherance

of this exploration plan was still discretionary in nature

and immune from suit under the FSIA. To deny immunity

to a foreign state for the implementation of its domestic

economic policies would be to completely abrogate the

doctrine of foreign sovereign immunity by allowing an

exception to swallow the grant of immunity preserved by

§ 1604.

543 F. Supp. at 567. Cf. Rappenecker v. United States, 509 F.

Supp. 1024, 1027 (N.D. Cal. 1980) (In a suit alleging negli-

gence in the undertaking and conduct of the Mayaguez rescue

operation, the court stated: “[T]he discretionary function ex-

ception which immunizes that decision [to undertake the rescue

operation] against judicial scrutiny extends also to acts of

subordinates in carrying it out according to official direc-

tions.”). See also Goodwill Industries of El Paso v. United

States, 218 F.2d 270, 272 (Sth Cir. 1954) (“The details or

methods of carrying out” an international agreement constitute

a discretionary act).

Had the Ninth Circuit in this case followed the principles set

forth by this Court in Varig Airlines, the additional considera-

tions inherent in an action against a foreign state would have

been addressed and a different result would clearly have been

reached. As this Court stated in Varig Airlines, the key ques-

tion in determining the applicability of the discretionary func-

tion exemption in any case is whether the conduct involved is

of the nature and quality that Congress intended to shield from

tort liability. 52 U.S.L.W. at 4837. When this analysis, rather

than the inapt operational/planning test, is applied to this

case, there is little doubt that the conduct of the Mexican

government in implementing the Prisoner Exchange Treaty is

within the scope of the discretionary function exemption of the

FSIA. As demonstrated in point I above, such governmental

conduct of a state has always been considered beyond the

jurisdiction of the domestic courts of other states under in-

ternational law, and Congress never intended to alter that basic

principle in enacting the FSIA.

Thus, since the Ninth Circuit’s decision on the discretionary

function exemption contained in 28 U.S.C. § 1605(a)(5)(A)

applied a test most recently rejected by this Court and particu-

larly inappropriate in the context of a suit against a foreign

state based on the implementation of a treaty with the United

States, Mexico respectfully submits that that decision should

be reviewed.

IV.

THE ASSERTION OF JURISDICTION OVER MEXICO

UNDER THE CIRCUMSTANCES OF THIS CASE

VIOUATES DUE PROCESS

This Court has in several decisions formulated tests for

determining whether the exercise of personal jurisdiction over

foreign defendants would comport with due process. In /n-

ternational Shoe Co. v. Washington, 326 U.S. 310, 316 (1945),

this Court stated that constitutional due process is satisfied if

the defendant has sufficient contacts with the forum “such that

the maintenance of the suit does not offend ‘traditional no-

tions of fair play and substantial justice’.” Later, in Hanson v.

Denckla, 357 U.S. 235 (1958), this Court held that the defen-

dant must have performed some act by which it “purposefully

availed itself” of the “benefits and protections” of the forum’s

laws. More recently, in Kulko v. Superior Court of California,

436 U.S. 84 (1978), and World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286 (1980), this Court has explainec the

due process standard in terms of the defendant’s reasonable

expectations, or the foreseeability of defendant’s being haled

before the courts of the forum based on the contacts the

defendant has with that forum.

All of the above decisions are essentially formulations of the

same basic test: in each case, the defendant’s contacts with the

forum must be examined to determine whether it is fair to hold

the defendant to the reasonable anticipation of being subject to

suit in the forum. In some cases, a single act in the forum, by

which the defendant avails himsclf of the benefits and protec-

tions of that forum’s laws, may constitute the requisite “mini-

mum contacts” to satisfy due process: in others, more

extensive contacts may be necessary. The analysis is not me-

chanical, but one designed ultimately to reach a fair result

based on what the defendant should reasonably have antici-

pated under the circumstances of the particular case. As this

Court stated in World-Wide Volkswagen, the element of fore-

seeability gives “a degree of predictability to the legal system

that allows potential defendants to structure their primary

conduct with some minimum assurance as to where that

conduct will and wiii not render them liable to suit.” Worid-

Wide Volkswagen, 444 U.S. at 297.

In the instant case, the Ninth Circuit failed to give due

weight to the element of foreseeability in its due process

analysis. Rather, it labeled Mexico’s implementation of the

Letter of Agreement procedure a “purposeful availing” of the

benefits and protections offered by the forum, and balanced a

number of additiona! factors primarily relevant to cases involv-

ing private defendants. (A-13-19, 729 F.2d at 649-52.) (A-33-38,

Amended Opinion at 14-22.) Had the plane in question been a

private, commercial aircraft on a non-governmental flight, the

Ninth Circuit’s decision might well have been appropriate. In

this case, however, the unique nature and purpose of the

plane’s mission and the circumstances under which it momen-

tarily flew through U.S. airspace warrant a different result if

the basic “foreseeability” test formulated by this Court is to be

given effect.

Mexico had substantial reason to believe, both at the time

that the Priscner Exchange Treaty was concluded and now,

that its conduct in implementing the Prisoner Exchange Treaty

would not be subject to judicial scrutiny in U.S. courts. See

Mexican Diplomatic Note. (A-78.) Indeed, had Mexico known

then that by entering into the Prisoner Exchange Treaty it

could be haled before U.S. courts, it is unlikely that the

Prisoner Exchange Treaty would ever have been concluded.

Mexico’s understanding then and now is based on well settled

principles of international law, under which a sovereign state

may not, without its consent, be subject to the jurisdiction of

the courts of another state in respect of the performance of its

governmental functions.

Mexico’s reasonable expectations of immunity cannot be

said to have teen abrogated by the enactment of the FSIA.

That statute did not become effective unti! January 1977, after

the Prisoner Exchange Treaty was concluded. In any event, the

noncommercial tort provision of the FSIA fails to provide

Mexico with reasonable notice that Congress intended to sub-

ject it to suit under circumstances such as those of this case.’

Apart from Mexico’s reasonable expectation of immunity

due to the nature of the functions it was performing under the

Prisoner Exchange Treaty, the nature and quality of the rele-

vant contacts of Mexico with the forum in this case further

militate against a finding of jurisdiction. Mexico cannot be

said to have “purposefully availed” itself of the forum’s

protections for its own benefit. Cf. Kulko, 436 U.S. at 94.

Mexico was not engaged in a routine commercial flight deriv-

ing commercial benefit from an incursion into U.S. airspace.

Rather, it was performing a governmental function in imple-

menting a treaty for the benefit of the United States and its

citizens. The momentary flight over U.S. territory was not a

planned part of that activity, but a response to an emergency

situation. Given the fortuity of these and other circumstances

7. Among the factors weighed by the Ninth Circuit in its jurisdictional

determination was the “sovereignty” of Mexico. On this issue, however, the

Ninth Circuit simply made the conclusory statement that Congress intended

to cover the conduct at issue here in § 1605(a)(5) and therefore Congress had

legisl-*ivel» determined that asserting jurisdiction would not pose an affront

to the sovereignty of Mexico. (A-16-17, 729 F.2d at 650.) (A-36, Amended

Opinion at 18-19.)

of this case, and Mexico’s reasonable expectation of sovereign

immunity based on the governmental nature of the functions it

was performing, Mexico’s contacts with the United States

relevant to this case do not constitute the “minimum contacts”

sufficient to find the reasonable expectation or foreseeability

of suit required under this Court’s decisions.

The importance of according foreign sovereigns the immu-

nity from the jurisdiction of U.S. courts they reasonably

expect under international law was stressed by this Court in its

early decision, Schooner Exchange v. M’Faddon, 11 U.S. (7

Cranch) 116 (1812). In that seminal case on sovereign immu-

nity, Chief Justice Marshall wrote that it is a “principle of

public law, that national ships of war, entering the port of a

friendly power open for their reception, are to be considered as

exempted by the consent of that power from its jurisdiction.”

Id. at 145-46. In anticipation of legislation that might remove

that immunity the Chief Justice further stated:

Without doubt, the sovereign of the place is capable of

destroying this implication. He [the receiving sovereign]

may claim and exercise jurisdiction either by employing

force, or by subjecting such vessels to the ordinary tri-

bunals. But until such power be exerted in a manner not

to be misunderstood, the sovereign cannot be considered

as having imparted to the ordinary tribunals a jurisdic-

tion, which it would be a breach of faith to exercise.

Id. at 146 (emphasis added).

The Ninth Circuit’s analysis did not take into account the

admonition of Chief Justice Marshall as to the necessity for a

clear statement of intent to abrogate the immunity previously

enjoyed and reasonably expected by foreign sovereigns. Nor

did the court of appeals properly apply the foreseeability

analysis previously elaborated in this Court’s decisions on the

due process issue. (A-15, 729 F.2d at 649-50.) (A-34, Amended

Opinion at 14-16.) The assertion of jurisdiction over Mexico

under the circumstances of this case therefore involves impor-

tant constitutional questions, again in the context of issues

relating to foreign relations, which require decision by this

Court.

CONCLUSION

For the reasons stated above, Mexico respectfully requests

that the Petition for a Writ of Certiorari hereby presented be

granted.

CURTIS, MALLET-PREVOST,

COLT & MOSLE

GEORGE KAHALE, III

LIGHTNER & CASTRO

CHRISTOPHER J. SCHATZ

Of Counsel

August 24, 1984

Respectfully submitted,

MANUEL R. ANGULO

101 Park Avenue

New York, New York 10178-0061

(212) 696-6000

Counsel for Petitioner,

Government of Mexico

APPENDIX

A-i

APPENDIX

TABLE OF CONTENTS

PAGE

Opinion of the United States Court of Appeals for the

Ninth Circuit, dated March 30, 1984................. A-1

Order of the United States Court of Appeals for the

Ninth Circuit denying appellees’ motion for a stay of

mandate, filed April 23, 1984... 0.0... ccc ccc cee sccees A-20

Order of the United States Court of Appeals for the

Ninth Circuit vacating its order and recalling the man-

ER rrr rr ere ee A-22

Amended Opinion of the United States Court of Ap-

peals for the Ninth Circuit, dated July 16, 1984....... A-23

Memorandum Decision and Order of the United States

District Court for the Southern District of California,

ee Te Se occ donke bess canine beane kane A-39

Order and Judgment of the United States District Court

for the Southern District of California, dated June 22,

iene wk kkk ad aah a ea enh eb eae eae eens A-45

Order Extending Time to File Petition for Writ of

Certiorari of the Supreme Court of the United States,

Gated June 14, 1984 ........ eee ee eee eee ewes A-47

United States Constitution, Amendment V ........... A-48

Treaty on the Execution of Penal Sentences, Nov. 25,

1976, United States-Mexico, 28 U.S.T. 7400, T.I.A.S.

ls se a nae ede s Re ks O44 Cae eee A-49

A-ii

PAGE

Foreign Sovereign Immunities Act of 1976, Pub.L. No.

94-583, 90 Stat. 2891 (1976), codified at 28 U.S.C.

§§ 1330, 1332(a)(2)-(4), 1391(f), 1441(d), 1602-1611 .... A-66

Diplomatic Note No. 0275 from the Embassy of Mexico

to the United States, dated May 24, 1984, and a trans-

DREN CRINGE. so nck ccvcatdecesseucekeaneeseecus A-78

Opinion of the United States Court of Appeals for the Ninth

Circuit, dated March 30, 1984

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT

Nos. 83-5626, 83-5629.

Argued and Submitted Oct. 6, 1983.

Decided March 30, 1984.

ERIN RAYNE OLSEN, a Minor by PATTY SHELDON, Maternal

Grandmother and Guardian ad Litem,

Plaintiffs-A ppellants,

—Y =

GOVERNMENT OF MEXICO,

Defendant-4ppellee.

URSULA BAINES SANCHEZ, By and Through her Guardians ad

Litem JOSEPH J. CERNIE and SALLY Z. CERNIE,

Plaintiffs-Appellants,

—Y =

THE REPUBLIC OF MEXICO, a Foreign Government,

Defendant-Appellee.

A-2

Donald S. White, Bonnie Pastor, Maupin, Cutler, Teplinsky

& White, Los Angeles, Cal., for Olsen.

Mark S. Hennings, Shield & Smith, Los Angeles, Cal., for

Sanchez.

Christopher J. Schatz, Ramon Castro, Jack Sleeth, Sheela,

Lightner & Castro, San Diego, Cal., for defendant-appellee.

Appeal from the United States District Court

for the Southern District of California

Before ;

FLETCHER and NELSON, Circuit Judges,

and HARDY,* District Judge.

NELSON, Circuit Judge:

Erin Olsen and Ursula Sanchez appeal from the dismissal of

their wrongful death claims for lack of personal jurisdiction.

The district court held that general contracts betweeu the

defendant and the forum state provided no basis for jurisdic-

tion. Additionally, the court concluded that personal jurisdic-

tion based on defendant’s forum-related activities would be

unreasonable and thus violative of due process requirements.

On appeal, the Government of Mexico (“Mexico”) also

challenges subject matter jurisdiction under the Foreign Sov-

ereign Immunities Act of 1976, Pub.L. No. 94-583, 90 Stat.

2891-98, 28 U.S.C. §§ 1330, 1332(a)(2), (4), 1391(f, 1441(d),

1602-1611 (1976) [hereinafter cited as the FSIA].

° Honorable Charles L. Hardy, United States District Judge for the

District of Arizona, sitting by designation.

A-3

We find that both subject matter jurisdiction and personal

jurisdiction exist and therefore reverse.

FACTS

Appellants Olsen and Sanchez, United States citizens domi-

ciled in California, are minor children claiming the wrongful

death of their parents. As prisoners of the Mexican govern-

ment, the parents of appellants were to be transferred to

authorities for incarceration in the United States pursuant to

the Prisoner Exchange Treaty between the United States and

Mexico.

On the night of October 27, 1979, a twin-propeller plane

owned and operated by the Mexican government carrying

guards, pilots and appellants’ parents departed Monterrey,

Mexico for Tijuana, where the transfer was to take place. En

route, the pilots, employees of the Mexican Department of

Justice, learned of thick fog and diminishing visibility at their

destination. They requested an instrument landing which, at

Tijuana Airport, requires the airplane to enter United States

airspace so it can approach the runway from the west. Follow-

ing procedures established by a Letter of Agreement between

aviation authorities of the Uniied States and Mexico, Tijuana

air control sought and received permission for the airplane to

cross the border. In addition to providing access to United

States airspace during hazardous weather conditions, the Let-

ter also allows for coordinated navigationai assistance.

Because its radar and instrument landing navigational sys-

tem were inoperative, Tijuana air control asked its counterpart

in San Diego to radio direction headings, altitude and location

data necessary for an instrument landing to the aircraft.

Unfortunately, neither the San Diego air controllers nor the

pilots were bilingual. Instead, the San Diego air controllers

relayed the information via the telephone “hotline” to Tijuana

air control who radioed their translation to the pilots.

In this manner, the aircraft penetrated almost 12 miles into

United States airspace, made a wide turn and began to descend

toward Tijuana Airport. Having strayed one mile off the

A-4

proper course, the pilot abandoned the approach at the border

and re-entered Mexican airspace.

San Diego air control advised the pilot to proceed to other

airports where visual landings would be possible. The pilot

declined and decided to attempt another instrument landing.

With the continued use of navigational data from San Diego

air cortrol, the airplane re-entered United States airspace. The

pilots aligned the aircraft with the proper compass heading and

descended on course, but failed to maintain the proper alti-

tude. After striking a telephone pole, the airpiane crashed

three-quarters of a mile inside the United States, killing all on

board. The crash site was two and one-half miles from the

beginning of the runway.

DISCUSSION

The FSIA sets forth criteria which must be satisfied to

establish both statutory subject matter jurisdiction and per-

sonal jurisdiction. The FSIA confers subject matter jurisdic-

tion upon district courts in nonjury civil actions where the

foreign state is not entitled to immunity as defined by its

substantive provisions, 28 U.S.C. § 1330(a) (1976). Personal

jurisdiction is established whenever subject matter jurisdiction

exists and service of process has been made in accord with

section 1608 of the FSIA. 28 U.S.C. § 1330(b) (1976). Thus,

both forms of jurisdiction turn on whether the foreign state is

entitled to sovereign immunity. If the dispute does not come

within one of the exceptions to sovereign immunity explicitly

provided by sections 1605-1607, the district court lacks both

subject matter jurisdiction and personal jurisdiction.

1. Subject Matter Jurisdiction

We begin our inquiry, then, by considering whether Mexico

is entitled to immunity. The FSIA grants blanket immunity to

foreign states, 28 U.S.C. § 1604, and then carves out specific

exceptions to immunity in sections 1605 to 1607. Appellants

allege that their wrongful death claims come within the so-

A-5

called “noncommercial torts” exception, section 1605(a)(5),

which provides:

(a) A foreign state shall not be immune from the jurisdic-

tion of courts of the United States or of the States in any

case—

(5) not otherwise encompassed in paragraph (2) above,

[the commercial activity exception] in which money dam-

ages 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

omission of that foreign state or of any official or

employee of that foreign state while acting within the

scope of his office or employment;

28 U.S.C. § 1605(a}(5) (1976).

Ordinarily, the plaintiff has the burden of establishing juris-

dictional requirements. KVOS, Inc. v. Associated Press, 299

U.S. 269, 278, 57 S.Ct. 197, 200, 81 L.Ed. 183 (1936);

Forsythe v. Overmeyer, 576 F.2d 779, 781 (9th Cir.), cert.

denied, 439 U.S. 864, 99 S.Ct. 188, 58 L.Ed.2d 174 (1978).

However, the legislative history of the FSIA indicates that

because sovereign immunity is a defense to be specially

pleaded, the foreign state has the ultimate burden of proving

its claim of immunity. H.R.Rep. No. 1487, 94th Cong., 2d

Sess. 17 (1976) reprinted in 1976 U.S. Code Cong. &

Admin.News, 6604 [hereinafter cited as House Report].' Once

plaintiffs have alleged a basis for jurisdiction, as appellants did

below, the burden shifts to the foreign state to prove immunity.

Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1378

(Sth Cir. 1980). |

Mexico argues that section 1605(a)(5) does not apply and it is

therefore immune from suit. First, Mexico contends that Con-

l The House and Senate Committees filed identical reports and the

House Report discussed herein states the views of both houses of Congress.

See Senate Judiciary Committee, Define Jurisdiction of U.S. Courts in Suits

Against Foreign States, S.Rep. No. 1310, 94th Cong., 2d Sess. (1976).

A-6

gress, in enacting the FSIA, adopted the restrictive theory of

sovereign immunity and that Mexico’s conduct was of the

public nature held to be immune under that theory. Second,

Mexico asserts that the 1605(a)(S) exception to immunity re-

quires all the acts or omissions constituting the tort to occur

within the United States. Finally, Mexico characterizes its

activities which led to the crash as discretionary functions, thus

falling within the exception to jurisdiction set forth in section

1605(a)(5)(A). We consider these arguments in turn.

A. The FSIA and the Restrictive Theory of Sovereign

Immunity.

The restrictive theory of sovereign immunity, widely applied

by other nations, was adhered to by the State Department from

1952 until the adoption of the FSIA. See House Report, supra,

at 14. Under the restrictive theory, a foreign state’s vulnerabil-

ity to suit depended on the nature of the act about which there

was a complaint. The foreign state’s immunity was restricted

to cases involving acts of a public or governmental nature (jure

imperii). But if the conduct was either commercial in nature or

that which a private person would normally perform (jure

gestionis), nO immunity was available. Although the theory is

easily stated, consistent application of the distinction between

acts jure imperii and jure gestionis has proved more difficult.

See Victory Transport, Inc. v. Comisaria General de Abasteci-

mientos y Transportes, 336 F.2d 354, 359-60 (2d Cir.1964);

Weber, The Foreign Sovereign Immunities Act of 1976: Its

Origin, Meaning and Effect, 3 Yale Stud. in World Pub. Ord.

1, 16 (1976).

Mexico argues that the FSIA codified the restrictive theory

and that the public-private distinction applies to the noncom-

mercial torts exception as well. According to Mexico’s in-

terpretation, foreign states would be immune from jurisdiction

for those torts which otherwise come within the bounds of

section 1605(a)(5) but which are public or governmental in

nature. We find this interpretation untenable for several rea-

sons.

A-7

From the outset, section 1602 instructs us to determine

claims of immunity “in conformity with the principles set

forth” by the FSIA. The legislative history of the FSIA

explains that the statute “sets forth the sole and exclusive

standards to be used in resolving questions of sovereign immu-

nity raised by foreign states before Federal and State courts in

the United States.” House Report at 12, U.S. Code Cong. &

Admin. News 1976, p. 6610. Thus, the FSIA itself prevents us

from engrafting onto section 1605(a)(5) an exception for non-

commerciai torts of a public or governmental nature. In

accordance with the FSIA, then, we determine the immunity of

foreign states pursuant to the scheme enacted by Congress and

without regard to the distinctions made by the restrictive

theory.

Our interpretation of the statutory scheme begins with the

language of the statute itself. Touche Ross & Co. v. Redington,

442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979);

Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326,

2330, 60 L.Ed.2d 931 (1979). The language of section

1605(a)(5) is broad indeed, denying immunity in any case “in

which money damages are sought against a foreign state for

personal injury or death . . . caused by the tortious act or

omission of that foreign state or of any official or employee

. . . .” Nothing in the statutory language suggests that the

nature of the tortious act is relevant to the determination of

immunity.

Additionally, the legislative history of the FSIA supports an

interpretation faithful to the broad language of section

1605(a)(5). While the preamble to the legislative history indi-

cates that the bill would codify the restrictive theory, House

Report at 7, the specific analysis of section 1605(a)(5) states

that it “is cast in general terms as applying to a// tort actions

for money damages not otherwise encompassed by section

1605(a)(5) relating to commercial activities.” House Report at

20-21, U.S. Code Cong. & Admin. News 1976, p. 6619 (em-

phasis added). Moreover, section 1605(a)(5) was designed to be

consistent with international law which denied immunity for

A-8

“ordinary tort actions against foreign states.” Hearing on H.R.

11315 Before the Subcommittee on Administrative Law and

Governmental Relations of the House Committee on the Judi-

ciary, 94th Cong., 2d Sess. 28 (1976) (testimony of Monroe

Leigh, Legal Adviser, Department of State). Like the statutory

language, nothing in the legislative history to section 1605(a)(5)

indicates that it is to be construed in terms of the restrictive

theory.

Mexico argues that if section 1605(a)(5) were applied without

regard to the immunity accorded acts of a sovereign nature

under the restrictive theory, sovereign immunity under the

FSIA would provide little protection to foreign nations. This

argument, however, ignores the immunity provided a foreign

state for torts committed in its discretionary capacity. 28

U.S.C. § 1605(a)(5)(A) (1976). Under the discretionary func-

tion exemption, foreign states are not subject to the jurisdic-

tion of the United States for tort claims based upon

discretionary functions which, as discussed below, include

those acts or decisions made at the policy-making or planning

level of government. Thus, those torts which involve acts or

omissions of a fundamentally governmental nature are not

actionable. Thus, to a large extent, the FSIA immunizes

foreign states for torts which occur in the state’s governmental

capacity.

B. The Location of the Tortious Conduct.

Section 1605(a)(5) requires the injury complained of to occur

in the United States.” The provision does not indicate that the

conduct causing the tort must also take place in the United

States. Ordinarily, this would end our inquiry and there would

be no need to consider the location of the tortious conduct.

Where, as in the instant case, the injuries occurred in the

2 Section 1605(a)(5) specifies that foreign states are not immune from

jurisdiction in any case in which money damages are sought “for personel

injury or death, or damage to or loss of property, occurring in the United

States and caused by the tortious act or omission of that foreign state. . .”

28 U.S.C. § 1605(a)(S) (1976).

A-9

United States, and all other requirements of section 1605(a)(5)

are met, the foreign state would not be immune. However, the

legislative history to section 1605(a)(5) clearly states that “the

tortious act or Omission must occur within the jurisdiction of

the United States . . . .” House Report at 21, U.S. Code

Cong. & Admin. News 1976, p. 6619.

A careful reading of the record in this case suggests that

many potentially tortious acts and omissions occurring both in

Mexico and the United States caused the crash. Pilot error, the

absence of operational radar and navigational aids at Tijuana

airport, defective aircraft instruments, the decision to forego a

visual landing at another airport, inaccurate data from San

Diego air control, and other factors may have contributed

causally to the accident.

Mexico, relying on Matter of SEDCO, 543 F.Supp. 561, 567

(S.D.Tex.1982) (SEDCO), contends that section 1605(a)(5)

must be construed to require all of the tortious conduct to

occur in the United States before a foreign state will be denied

immunity. In SEDCO, an exploratory off-shore well operated

by Pemex, the Mexican national oil company, exploded in

Mexican waters. The resulting oil slick washed up on t':e shores

of Texas. Citizens there sued Pemex and other parties under

section 1605(a)(5). Citing that section’s legislative history re-

quiring the tortious act or omission to occur within the United

States, the court held that for the noncommercial tort excep-

tion to apply, “the tort, in whole, must occur in the United

States.” SEDCO, 543 F.Supp. at 567. Thus, Mexico argues,

because some allegedly tortious acts or omissions took place

outside the United States—such as the maintenance of the

aircraft and the inoperative radar at Tijuana airport—Mexico

should be immune.

The instant case is dintinguishable from SEDCO in one

crucial respect. In SEDCO, none of the alleged acts or omis-

3 See also Perez v. The Bahamas, 652 F.2d 186, 188-89 (D.C.Cir.),

cert. denied, 454 U.S. 865, 102 S.Ct. 326, 70 L.Ed.2d 166 (1981). In Perez

both the tortious conduct and injury occurred outside the jurisdiction of the

United States. Perez is thus distinguishable.

A-10

sions, only the resultant injury, occurred in the United States.*

By requiring every aspect of the tortious conduct to occur in

the United States, a rule such as in SEDCO would encourage

foreign states to allege that some tortious conduct occurred

outside the United States. The foreign state would thus be able

to establish immunity and diminish the rights of injured

persons seeking recovery. Such a result contradicts the purpose

of the FSIA, which is to “serve the interests of justice and. . .

protect the rights of both foreign states and litigants in United

States courts.” 28 U.S.C. § 1602. The FSIA requires us to

protect the rights of plaintiffs while respecting the sovereignty

of foreign states. Consequently, we hold that if plaintiffs allege

at least one entire tort occurring in the United States, they may

claim under section 1605(a)(5). In this case, appellants allege

conduct constituting a single tort—the negligent piloting of the

aircraft—which occurred in the United States. We are satisfied

that appellants have alleged sufficient conduct occurring in the

United States to bring this case within the non-commercial

torts exception as expressed in section 1605(a)(5) and its legisla-

tive history.

C. The Discretionary Function Exception.

Section 1605(a)(5)(A) provides an exception to noncommer-

cial tort jurisdiction for claims based upon a state’s discre-

tionary function.° Mexico seeks to bring the airplane crash

within this exception by contending that the conduct which led

to the crash was discretionary.

The FSIA provides considerable guidance as to which acts or

decisions constitute discretionary functions. Not only does the

4 See Also Persinger v. Islamic Republic of Iran, No. 81-2003

(D.C.Cir., filed March 13, 1984) (distinguishable on same grounds).

5 Section 1605(a)(5) does not apply to:

(A) any claim based upon the exercise or performance or the failure to

exercise or perform a discretionary function regardless of whether

discretion be abused.

28 U.S.C. § 1605(a)(S5)(A) (1976).

A-11

language of the FSIA discretionary function exception repli-

cate that of the Federal Tort Claims Act (FTCA), 28 U.S.C.

§ 2680(a), but the legislative history of the FSIA, in explaining

section 1605(a)(5)(A), directs us to the FTGA. House Report at

21. To determine the scope of the discretionary function

exception of the FSIA, we therefore turn to the interpretation

given the similar FTCA provision.°

The seminal case defining the scope of the discretionary

function exception within the context of the FTCA, Dalehite v.

United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953),

held “discretion” to mean:

“more than the initiation of programs and activities. It

also includes determinations made by executives or ad-

ministrators in establishing plans, specifications or sched-

ules of operations. Where there is room for policy

judgment and decision there is discretion.”

Id. at 35-36, 73 S.Ct. at 968. In so defining discretion, the

Court adhered to the legislative purpose behind the exception:

to allow government executives to make policy decisions in an

atmosphere free of concern over possible litigation. Jd. at 32,

73 S.Ct. at 966.

Over the years, the definition of discretion has been refined

and qualified somewhat. See Driscoll » United States, 525

F.2d 136, 138 (9th Cir.1975). This circuit employs a test which

distinguishes between the “planning level” of governmental

activity and those acts designed to carry out policy, the “opera-

tional level.” Thompson v. United States, 592 F.2d 1104, 1111

(9th Cir.1979). Because decisions at the planning level establish

governmental policy, they are not actionable. But where deci-

sions occur at the operational level, the discretionary function

6 The Federal Tort Claims Act does not apply to:

(a) Any claim . . . based upon the exercise or performance or failure

to exercise or perform a discretionary function or duty on the part of a

federal agency or an employee of the Government, whether or not the

discretion involved be abused.

28 U.S.C. § 2680(a) (1976).

A-12

exemption provides no protection from liability even though

such decisions or acts may involve elements of discretion.

Lindgren v. United States, 665 F.2d 978, 980 (9th Cir. 1982); see

also Thompson, 592 F.2d at 1111; Driscoll, 525 F.2d at 138. In

addition to examining the level at which the conduct occurred,

we also consider two other factors which are particularly

important when determining the immunity of foreign states:

The ability of United States courts to evaluate the act or

omission of the state, and the potential impairing effect such

an evaluation would have on the effective administration of

the state’s government. Lindgren, 665 F.2d at 980; Driscoll,

525 F.2d at 138.

We conclude that of those alleged acts or omissions on the

part of Mexico which contributed to the accident, none was

discretionary. First, while Mexico’s decision to enter into the

Prisoner Exchange Treaty with the United States or to transfer

these particular prisoners to United States custody might well

be deemed discretionary, those decisions are not implicated in

the instant action. Rather, appellants allege that Mexico negli-

gently maintained, directed and piloted the aircraft. Such

conduct represents measures taken to implement the broader

policy or plan to exchange prisoners. The acts or omissions in

question involved the transportation of prisoners, an act re-

mote from the policy decision to transfer them. While the pilot

and air controllers had considerable discretion in carrying out

their assigned tasks, see Lindgren, 665 F.2d at 980; Thompson,

$92 F.2d at 1111; Driscoll, 525 F.2d at 138, it is clear they acted

on the operational level, far from the centers of policy judg-

ment. See also Ingham v. Eastern Air Lines, Inc., 373 F.2d

227, 238 (2d Cir.1967) (air controller’s failure to comply with

regulations occurred at operational level); United Air Lines,

Inc. v. Wiener, 335 F.2d 379, 396 (9th Cir.1964); Eastern Air

Lines v. Union Trust Co., 221 F2d 62, 78 (D.C. Cir.1955)

(control tower operators act at operational level).

Second, this dispute does not raise questions of policy

decisions of Mexico, only issues of historical fact and tort

liability. Therefore, the trial court can readily evaluate the

A-13

allegedly tortious acts as it is well suited to the task of

determining facts and applying the relevant law.

Third, we see nothing which suggests that denying immunity

will impair the effectiveness of Mexico’s penal or aviation

authorities. A trial on the merits will call for the testimony of

individuals involved in the accident, primarily Mexican air

traffic control personnel. There seems little doubt that the air

traffic authorities and other relevant governmental entities can

function without diminished efficacy while their employees

testify in discovery or court proceedings.

in conclusion, the claims asserted by appellants fall within

the exception to immunity for noncommercial torts as pro-

vided by section 1605(a)(5) of the FSIA. Additionally, the

conduct of Mexican personnel which may have led to the crash

occurred at the operational level and was not discretionary.

Thus, Mexico is not immune under the FSIA and subject

matter jurisdiction exists.

Il. Personal Jurisdiction

Personal jurisdiction over a foreign state exists in any case

where the foreign state is not entitled to immunity under the

FSIA and service has been made in accordance with the

statute’s requirements. 28 U.S.C. § 1330(b) (1976). There be-

ing no challenge to the propriety of service below, we must

consider whether the assertion of personal jurisdiction com-

ports with the constitutional limits imposed by the due process.

clause. Because California’s long-arm statute extends the

state’s jurisdiction to the very limits of due process under the

federal constitution, we examine personal jurisdiction in light

of due process as defined by the United States Supreme Court.

Thomas P. Gonzalez Corp. v. Consejo Nacional de Produccion

de Costa Rica, 614 F.2d 1247, 1250 (9th Cir.1980), (quoting

Threlkeld v. Tucker, 496 F.2d 1101, 1103 (9th Cir.1974)), cert.

denied, 419 U.S. 1023, 95 S.Ct. 499, 42 L.Ed.2d 297 (1974). As

stated in International Shoe Co. v. Washington, 326 U.S. 310,

66 S.Ct. 154, 90 L.Ed. 95 (1945), due process requirements are

met only if the defendant has sufficient minimum contacts

A-14

with the forum “such that the maintenance of the suit does not

offend ‘traditional notions of fair play and substantial jus-

tice.’ ” Id, at 816, 66 S.Ct. at 158.

In our circuit, the defendant’s contacts with the forum state

are analyzed in two ways. If the non-resident defendant’s

activities within a state are “substantial” or “continuous and

systematic,” there is a sufficient relationship between the de-

fendant and forum to support jurisdiction even if the cause of

action is unrelated to the defendant’s forum-related activities.

Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437,

446-48, 72 S.Ct. 413, 418-19, 96 L.Ed. 485 (1952); Data Disc,

Inc., v. Systems Technology Assoc., Inc., 557 F.2d 1280, 1287

(9th Cir.1977). If, however, the defendant’s activities are not so

pervasive as to subject the defendant to general jurisdiction,

personal jurisdiction turns on the nature and quality of the

defendant’s contacts relating specifically to the cause of action.

Data Disc, 557 F.2d at 1287. To find limited jurisdiction based

on the defendant’s forum-related activities, we require (1) the

non-resident defendant to perform some act by which he

purposefully avails himself of the benefits and protections of

the forum’s laws; (2) the plaintiff’s claim to arise out of or

result from the defendant’s forum-related activities, and; (3)

the exercise of jurisdiction to be reasonable. Raffaele v. Com-

pagnie Generale Maritime, 707 F.2d 395, 397 (9th Cir. 1983);

Data Disc, 557 F.2d at 1287. Because we find sufficient

contacts to justify limited jurisdiction, it is unnecessary to

consider whether general jurisdiction exists.

The first two requirements of the Data Disc minimum

contacts analysis are easily satisfied. In order to land during

hazardous weather conditions, the pilot of the aircraft sought

and received permission to enter United States airspace pur-

suant to procedures negotiated for precisely those circum-

stances. While receiving navigational assistance for San Diego

air control, the pilot twice intentionally entered United States

airspace. In so doing, Mexico purposefully availed itself of the

benefits of operating its aircraft over California. In addition,

the claims of appellants arise from the plane’s flight and crash

in California.

A-15

Jurisdiction is reasonable where “under the totality of the

circumstances the defendant could reasonably anticipate being

called upon to present a defense in a distant forum.” Jaubler v.

Giraud, 655 F.2d 991, 993 (9th Cir.1981); World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct.

559, 567, 62 L.Ed.2d 490 (1980). While there is no mechanical

or quantitative test for determining the reasonableness of

jurisdiction, at least seven factors are relevant. Jnsurance Co.

of North America v. Marina Salina Cruz, 649 F.2d 1266, 1270

(9th Cir.1981) [hereinafter cited as /.N.A.]. To determine

reasonableness, we consider the relative significance of each

factor and balance them all. /d. at 1273. We apply these factors

below and conclude that personal jurisdiction over Mexico is

reasonable.

A. Extent of Purposeful Interjection.

The extent of Mexico’s purposeful interjection into Califor-

nia was substantial. The pilots intentionally entered United

States airspace with the approval of Tijuana air control in

order to make an instrument landing. While the decision to

enter was made under exigent circumstances, the flight over

California was neither accidental nor fortuitous. The pilot and

Tijuana air control followed detailed procedures agreed to by

Mexico and set forth in the Letter of Agreement in anticipation

of weather conditions necessitating instrument landings. Fur-

thermore, after the second missed approach, the pilot rejected

a suggestion to land the aircraft at alternate airports in favor

of another instrument approach over San Diego.

B. Burden of Defending.

While a primary concern in assessing the reasonableness of

jurisdiction is the burden on the defendant, it is not dispositive

and is to be considered in light of other relevant factors.

Raffaele, 707 F.2d at 398; World-Wide Volkswagen, 444 U.S.

at 292, 100 S.Ct. at 564.

Undoubtedly, litigating abroad imposes significant inconven-

iences upon the party appearing in a foreign country. Transpor-

A-16

tation of witnesses, attorneys and physical evidence presents

problems of logistics and expense, as does the need to translate

testimony and documents. However, these inconveniences are

minimized in the instant case. The physical evidence, including

the wreckage and crash site, is located in San Diego. Other

evidence, such as National Transporiation Safety Board

(NTSB) reports and the testimony of San Diego air traffic

controllers and NTSB investigators, is in English and is avail-

able in San Diego as well. Additionally, advances in interna-

tional transportation and communication facilities have

diminished many of the burdens of litigating in a foreign

nation. See Raffaele, 707 F.2d at 398; Hanson v. Denckla, 357

U.S. 235, 251, 78 S.Ct. 1228, 1238, 2 L.Ed.2d 1283 (1958).

Important Mexican witnesses, such as the Tijuana air traffic

controllers, are located just across the border and are readily

accessible via modern transportation and communication

links. Litigating the instant case in San Diego is far less

burdensome to the defendant than much of the interstate

litigation routinely pursued in the United States. Indeed, the

burden on Mexico to defend in San Diego is as small as any

foreign defendant may be expected to bear. Compare INA, 649

F.2d at 1271-72; Raffaele, 707 F.2d at 398; Hedrick v. Daiko

Shoji Co., Ltd., Osaka, 715 F.2d 1355, 1359 (9th Cir. 1983).

C. Conflict with Mexico’s Sovereignty.

Mexico argues that its sovereignty raises a barrier to the

reasonableness of jurisdiction. As was recognized in INA, the

reasonableness of jurisdiction depends to some extent on the

potential affront to the sovereignty of defendent’s state. JNA,

649 F.2d at 1272. While a defendani’s sovereignty may weigh

against allowing jurisdiction, that effect is minimal here. By

denying immunity to foreign states defending certain claims,

the FSIA reflects the modern realities of the interdependence

of nations. Because personal jurisdiction turns on a determina-

tion of immunity, the FSIA represents Congress’ decision that

jurisdiction does not pose an affront to the sovereignty of the

defending nation so serious as to preclude it. Thus, while we

A-17

are respectful of Mexico’s sovereignty, we find that in the

present case it does not weigh heavily against the reasonable-

ness of jurisdiction.

D. Interests of Forum State.

California has strong interests in protecting its residents

from injury and in furnishing a forum where their injuries may

be remedied. Rafjae‘e, 707 F.2d at 398. It has a special interest

in exercising jurisdiction over those who have committed

tortious acts within its boundaries. By subjecting the tortfeasor

to liability for damages which are the proximate result of the

tort, California acts to deter wrongful conduct affecting those

within the state. Data Disc, 557 F.2d at 1288.

In addition, California also had an interest in ensuring that

its citizens are fully compensated for their injuries. Such an

interest is important both to ensure that injured individuals

recover for their losses and to protect the state’s economic

resources from unnecessary expenditures. Finally, the forum

state’s interest in protecting the welfare of its minor residents is

unquestionably important. Ku/ko vy. California Superior

Court, 436 U.S. 84, 98, 98 S.Ct. 1690, 1700, 56 L.Ed.2d 132

(1978).

E. Most Efficient Resolution.

District court in San Diego would be the most efficient

judicial forum. A court sitting in the district where the injury

occurred and where the evidence is located ordinarily will be

the most efficient forum. Raffaele, 707 F.2d at 399. As dis-

cussed above, San Diego will most likely be the richest source

of physical ev'dence, witnesses and documents.

The district court is required to apply California’s choice of

law rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487,

496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). If Mexican law

should apply, that would admittedly have a negative effect on

the efficiency of proceeding in the United States. JNA, 649

F.2d at 1273. However, we cannot tell from the briefs or record

whether a true conflict of law exists. Mexico has not shown

A-18

how its law conflicts with relevant California law or why its

law should be applied. In any event, we are confident that a

court in California can be trusted to apply properly the law of

a foreign state. Thus, choice of law considerations are not a

major impediment to the efficient resolution of this dispute.

F. Convenient and Effective Relief for Plaintiffs.

Undoubtedly, a California court affords appellants the most

convenient and effective site for judicial relief. Not only is

important evidence present in the United States, but concerns

for appellants’ personal comfort and convenience argue in

favor of a United States forum. As this court observed in

Raffaele, “Individual claimants ‘would be at a severe disad-

vantage if they were forced to follow the. . . [defendant] to a

distant state in order to hold it legally accountable. When

claims were small or moderate individual claimants frequently

could not afford the cost of bringing an action in a foreign

forum—thus in effect making the company judgment proof.’ ”

Raffaele, 707 F.2d at 399 (quoting McGee v. International Life

Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223

(1957)). Access to a California court is important to appellants

for obtaining relief.

Finally, appellants’ likelihood of enforcing a judgment

against Mexico also bears on the effectiveness of a California

court as a forum for resolving the dispute. INA, 649 F.2d at

1273. Mexico is not immune to jurisdiction and thus enforce-

ment of a judgment is not barred. Mexico has not shown how

a judgment against it is unenforceable and thus we cannot

conclude that such enforcement is so unlikely as to weigh

against the reasonableness of jurisdiction.

G. Availability of an Alternate Forum.

Appellants recognize that Mexico affords an alternative

forum but argue that it is, for practical purposes, unavailable.

While the practicality of the alternative forum must be consid-

ered, see Raffaele, 707 F.2d at 399; Hedrick, 715 F.2d at 1359,

appellants must carry the burden of proving the unavailability

A-19

of an alternative forum. JNA, 649 F.2d at 1273. Appellants

allude to a severe maximum limit on wrongful death recov-

eries, see Hurtado v. Superior Court, 11 Cal.3d 574, 578-79,

114 Cal.Rptr. 106, 108, 522 P.2d 666, 668 (1974), but offer no

proof of applicable Mexican law to substantiate their allega-

tion. Because appellants fail to carry their burden of proof, we

cannot conclude that they are left without an alternative

forum.

After considering all the relevant factors, we conclude that,

on balance, it would be reasonable for a California court to

exercise jurisdiction over Mexico and thus, personal jurisdic-

tion is consistent with due process requirements.

REVERSED AND REMANDED.

A-20

Order of the United States Court of Appeals for the Ninth

Circuit denying appellees’ motion for a stay of mandate,

filed April 23, 1984

UNITED STATES CURT OF APPEALS

FOR THE NINTH CIRCUIT

aos

No. 83-5626

D.C. No. CV 82-0413-JLI

ERIN RAYNE OLSEN, a Minor by PATTY SHELDON,

Maternal Grandmother and Guardian ad Litem,

Plaintiffs-A ppellants,

vs.

GOVERNMENT OF MEXICO,

Defendani-Appellee.

No. 83-5629

D.C. No. CV 81-1067-JLI

URSULA BAINES SANCHEZ, by aud through her Guardians

ad Litem JOSEPH J. CERNIE and SALLY Z. CERNIE,

Plaintiffs-A ppellants,

vs.

THE REPUBLIC OF MEXICO, a Foreign Government,

Defendant-Appellee.

A-21

Before:

FLETCHER and NELSON, Circuit Judges,

and HARDY’, District Judge.

—-

ORDER

Appellees’ motion for a stay of mandate is DENIED.

. Honorable Charles L. Hardy, United States District Judge for the

District of Arizona, sitting by designation.

A-22

Order of the United States Court of Appeals for the Ninth

Circuit vacating its order and recalling the mandate, filed

May 3, 1984

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 83-5626 & 83-5629

DC# CV-82-0413 JLI

Southern California

ERIN RAYNE OLSEN a Minor by PATTY SHELDON,

Maternal Grandmother and Guardian ad Litem,

Plaintiffs-Appellants,

vs.

GOVERNMENT OF MEXICO,

Defendant-Appellee.

Before:

FLETCHER and NELSON, Circuit Judges,

and Hardy, D.J.

++ |

ORDER

Upon its own motion the court vacates the order of April 23,

1984. The mandate is recalled. The panel will issue an amended

opinion at its .arliest opportunity.

A-23

Amended Opinion of the United States Court of Appeals for

the Ninth Circuit, dated July 16, 1984

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 83-5626

USDC No. CV 82-0413-JLI

ERIN RAYNE OLSEN, a Minor by PATTY SHELDON, Maternal

Grandmother and Guardian ad Litem,

Plaintiffs-Appellants,

—vs.—

GOVERNMENT OF MEXICO,

Deferdani-Appellee.

No. 83-5629

USDC No. CV-81-1067-JLI

URSULA BAINES SANCHEZ, by and through her Guardians ad

Litem JOSEPH J. CERNIE and SALLY Z. CERNIE,

Plaintiffs-Appellants,

—T5,-

THE REPUBLIC OF MEXICO, a Foreign Government,

Defendant-Appellee.

A-24

AMENDED OPINION

Argued and Submitied: October 6, 1983

Appeal from the United States District Court

for the Southern District of California

Hon. J. Lawrence Irving, District Judge Presiding

Before:

FLETCHER and NELSON, Circuit Judges,

and HARDY,* District Judge.

2 oe

NELSON, Circuit Judge:

Erin Olsen and Ursula Sanchez appeal from the dismissai of

their wrongful death claims for lack of personal jurisdiction.

The district court held that general contacts between the

defendant and the forum state provided no basis for jurisdic-

tion. Additionally, the court concluded that personal jurisdic-

tion based on defendant’s forum-related activities would be

unreasonable and thus violative of due process requirements.

On appeal, the Government of Mexico (“Mexico”) also

challenges subject matter jurisdiction under the Foreign Sov-

ereign Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat.

2891-98, 28 U.S.C. §§ 1330, 1332(a)(2), (4), 1391(f), 1441(d),

1602-1611 (1980) [hereinafter cited as the FSIA].

We find that both subject matter jurisdiction and personal

jurisdiction exist and therefore reverse.

FACTS

Appellants Olsen and Sanchez, United States citizens domi-

ciled in California, are minor children claiming the wrongful

* Honorable Charles L. Hardy, United States District Judge for the

District of Arizona, sitting by designation.

A-25

death of their parents. As prisoners of the Mexican govern-

ment, the parents of appellants were to be transferred to

authorities for incarceration in the United States pursuant to

the Prisoner Exchange Treaty between the United States and

Mexico.

On the night of October 27, 1979, a twin-propeller plane

owned and operated by the Mexican government carrying

guards, pilots and appellants’ parents departed Monterrey,

Mexico for Tijuana, where the transfer was to take place. En

route, the pilots, employees of the Mexican Department of

Justice, learned of thick fog and diminishing visibility at their

destination. They requested an instrument landing which, at

Tijuana Airport, requires the airplane to enter United States

airspace so it can approach the runway from the west. Follow-

ing procedures established by a Letter of Agreement between

aviation authorities of the United States and Mexico, Tijuana

air control sought and received permission for the airplane to

cross the border. In addition to providing access to United

States airspace during hazardous weather conditions, the Let-

ter also allows for coordinated navigational assistance.

Because its radar and instrument landing navigational sys-

tems were inoperative, Tijuana air control asked its counter-

part in San Diego to radio direction headings, altitude and

location data necessary for an instrument landing to the

aircraft. Unfortunately, neither the San Diego air controllers

nor the pilots were bilingual. Instead, the San Diego air

controllers relayed the information via the telephone “hotline”

to Tijuana air control which radioed a translation to the pilots.

In this manner, the aircraft penetrated almost 12 miles into

United States airspace, made a wide turn and began to descend

toward Tijuana Airport. Having strayed one mile off the

proper course; the pilot abandoned the approach at the border

and re-entered Mexican airspace.

San Diego air control advised the pilot to proceed to other

airports where visual landings would be possible. The pilot

declined and decided to attempt another instrument landing.

With the continued use of navigational data from San Diego

A-26

air control, the airplane re-entered United States airspace. The

pilots aligned the aircraft with the proper compass heading and

descended on course, but failed to maintain the proper alti-

tude. After striking a telephone pole, the airplane crashed

three-quarters of a mile inside the United States, killing all on

board. The crash site was two and one-half miles from the

beginning of the runway.

DISCUSSION

The FSIA sets forth criteria which must be satisfied to

establish both statutory subject matter jurisdiction and per-

sonal jurisdiction. The FSIA confers subject matter jurisdic-

tion upon district courts in nonjury civil actions where the

foreign state is not entitled to immunity as deiined by the

FSIA’s substantive provisions, 28 U.S.C. § 1330(a) (1982).

Personal jurisdiction is established whenever subject matter

jurisdiction exists and service of process has been made in

accord with section 1608 of the FSIA. 28 U.S.C. § 1330(b)

(1982). Thus, both forms of jurisdiction turn on whether the

foreign state is entitled to sovereign immunity. If the dispute

does not come within one of the exceptions to sovereign

immunity explicitly provided by sections 1605-1607, the district

court lacks both subject matter jurisdiction and personal juris-

diction.

1. Subject Matter Jurisdiction

As section 1330(a) indicates, sovereign immunity is not

merely a defense under the FSIA. Its absence is a jurisdictional

requirement. See Verlinden, B.V. v. Central Bank of Nigeria,

103 S. Ct. 1962, 1971 n.20 (1983) (“Verlinden”). We begin our

inquiry, therefore, by considering whether Mexico is entitled to

immunity.

The FSIA grants blanket immunity to foreign states, 28

U.S.C. § 1604, and then carves out specific exceptions to

immunity in sections 1605 to 1607. Appellants allege that their

wrongful death claims come within the so-called “noncommer-

cial torts” exception, section 1605(a)(5), which provides:

PPA VEEL III, RAE ELEM ID REN Dai BAT gt IAP NON My Site!

| ger ies YOR ye EGER BOR DIT BN

St ae ede

TOKE ES

Seat DR Reas.te

PEE IRL ERT ae

A-27

(a) A foreign state shall not be immune from the jurisdic-

tion of courts of the United States or of the States in any

case

* * *

(5) not otherwise encompassed in paragraph (2) above,

[the commercial activity exception] in which money dam-

ages 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

omission of that foreign state or of any official or

employee of that foreign state while acting within the

scope of his office or employment;

28 U.S.C. § 1605(a)(5) (1982).

Mexico argues that section 1605(a){5) does not apply and it is

therefore immune from suit. First, Mexico contends that Con-

gress, in enacting the FSIA, adopted the restrictive theory of

sovereign immunity and that Mexico’s conduct was of the

public nature held to be immune under that theory. Second,

Mexico asserts that the 1605(a)(5) exception to immunity re-

quires all the acts or omissions constituting the tort to occur

within the United States. Finally, Mexico characterizes its

activities which led to the crash as discretionary functions, thus

falling within the exception to jurisdiction set forth in section

1605(a)(5)(A). We consider these arguments in turn.

A. The FSIA and the Restrictive Theory of Sovereign

Immunity.

It is clear that the FSIA, for the most part, codifies the

restrictive principle of sovereign immunity. See Verlinden, 103

S. Ct. at 1968. Under this principle, the immunity of a foreign

State is “restricted” to suits involving that state’s public acts

(jure imperii) and does not extend to suits based on its private

or commercial acts (jure gestionis). McKeel v. Islamic Republic

of Iran, 722 F.2d 582, 587 n.6 (9th Cir. 1983).

Mexico argues that this public/private distinction applies not

only to the FSIA generally, but specifically to section 1605

(a)(S), the noncommercial torts exception to immunity. Ac-

A-28

cording to Mexico’s interpretation, foreign states would be

immune from jurisdiction for those torts which otherwise come

within the bounds of section 1605 (a)(5) but which are public in

nature.

Section 1605 (a)(5) cannot be read, however, other than in

conjunction with section 1605 (a)(S5)(A), which exempts from

the reach of section 1605 (a)(5) those torts committed in a

foreign state’s discretionary capacity. 28 U.S.C. § 1605

(a)(S)(A) (1982). Discretionary functions, as discussed below,

include those acts or decisions made at the policy-making or

planning level of government. Those torts involving acts or

omissions of a fundamentally governmental nature are not

actionable. Thus, despite section 1605 (a)(5), a foreign state

remains largely immunized from torts committed in its govern-

mental capacity. Mexico’s position, that governmental acts are

automatically read out of section 1605 (a)(5), would render

section 1605 (a)(5)(A) superfluous. Its argument is therefore

untenable.

B. The Location of the Tortious Conduct.

Section 1605 (a)(5)requires the injury complained of to occur

in the United States.' The provision does not indicate that the

conduct causing the tort must also take place in the United

States. Ordinarily, this would end our inquiry and there would

be no need to consider the location of the tortious conduct.

Where, as in the instant case, the injuries occurred in the

United States, and all other requiremenis of section 1605 (a)(5)

are met, the foreign state would not be immune. However, the

legislative history to section 1605 (a)(5) indicates that “the

tortious act or omission must occur within the jurisdiction of

the United States. . . .” House Report at 21.

A careful reading of the record in this case suggests that

many potentially tortious acts and omissions occurring both in

l Section 1605 (a)(5) specifies that foreign states are not immune from

jurisdiction in any case in which money damages are sought “for personal

injury or death, or damage to or loss of property, occurring in the United

States and caused by the tortious act or omission of that foreign state. . . ”

28 U.S.C. § 1605(a)(5)(1982).

A-29

Mexico and the United States caused the crash. Pilot error, the

absence of operational radar and navigational aids at Tijuana

airport, defective aircraft instruments, the decision to forego a

visual landing at another airport, inaccurate data from San

Diego air control, and other factors may have contributed

causally to the accident.

Mexico, relying on Matter of SEDCO, 543 F. Supp. 561, 567

(S.D. Tex. 1982) (SEDCO), contends that section 1605 (a)(5)

must be construed to require ali of the tortious conduct to

occur in the United States before a foreign state will be denied

immunity. In SEDCO, an exploratory off-shore well operated

by Pemex, the Mexican national oil company, exploded in

Mexican waters. The resulting oil slick washed up on the shores

of Texas. Citizens there sued Pemex and other parties under

section 1605 (a)(5). Citing that section’s legislative history

requiring the tortious act or omission to occur within the

United States, the court held that for the noncommercial tort

exception to apply, “the tort, in whole, must occur in the

United States.” SEDCO, 543 F. Supp. at 567.2 Thus, Mexico

argues, because some allegedly tortious acts or omissions took

place outside the United States—such as the maintenance of

the aircraft and the inoperative radar at Tijuana airport—Mex-

ico should be immune.

The instant case is distinguishable from SEDCO in one

crucial respect. In SEDCO, none of the alleged acts or omis-

sions, only the resultant injury, occurred in the United States. °

By requiring every aspect of the tortious conduct to occur in

the United States, a rule such as in SEDCO would encourage

foreign states to allege that some tortious conduct occurred

outside the United States. The foreign state would thus be able

to establish immunity and diminish the rights of injured

persons seeking recovery. Such a result contradicts the purpose

2 See also Perez v. The Bahamas, 652 F.2d 186, 188-89 (D.C. Cir.),

cert. denied, 454 U.S. 865 (1981). Perez is distinguishable from this case

because both the tortious conduct and injury occurred outside the United

States.

3 See also Persinger v. Islamic Republic of Iran, 729 F.2d 835 (D.C.

Cir. 1984) (distinguishable on same grounds).

A-30

of the FSIA, which is to “serve the interests of justice and. . .

protect the rights of both foreign states and litigants in United

States courts.” 28 U.S.C. § 1602. The FSIA requires us to

protect the rights of plaintiffs while respecting the sovereignty

of foreign states. Consequently, we hold that if plaintiffs allege

at least one entire tort occurring in the United States, they may

claim under section 1605 (a)(5). In this case, appellants allege

conduct constituting a single tort—the negligent piloting of the

aircraft—which occurred in the United States. We are satisfied

that appellants have alleged sufficient conduct occurring in the

United States to bring this case within the noncommercial torts

exception as expressed in section 1605 (a)(5) and its legislative

history.

C. The Discretionary Function Exception.

Section 1605 (a)(5)(4) provides an exception to noncommer-

cial tort jurisdiction for claims based upon a state’s discre-

tionary function.* Mexico seeks to bring the airplane crash

within this exception by contending that the conduct which led

to the crash was discretionary.

The FSIA provides considerable guidance as to which acts or

decisions constitute discretionary functions. Not only does the

language of the FSIA discretionary function exception repli-

cate that of the Federal Tort Claims Act (FTCA), 28 U.S.C.

§ 2680(a), but the legislative history of the FSIA, in explaining

section 1605 (a)(5)(A), directs us to the FTCA. House Report

at 21. To determine the scope of the discretionary function

exception of the FSIA, we therefore turn to the interpretation

given the similar FTCA provision.°

4 Section 1605 (a)(5) does not apply to:

(A) any claim based upon the exercise or performance or the failure to

exercise or perform a discretionary function regardless of whether

Giscretion be abused.

28 U.S.C. § 1605(a)(S5)(A)(1982).

5 The Federal Tort Claims Act does not apply to:

(a) Any claim . . . based upon the exercise or performance or failure

to exercise or perform a discretionary function or duty on the part of a

A-31

The seminal case defining the scope of the discretionary

function exception within the context of the FTCA, Dalehite v.

United States, 346 U.S. 15 (1953), held “discretion” to mean:

“more than the initiation of programs and activities. It

also includes determinations made by executives or ad-

ministrators in establishing plans, specifications or sched-

ules of operations. Where there is room for policy

judgment and decision there is discretion.”

Id. at 35-6. In so defining discretion, the Court adhered to the

legislative purpose behind the exception: to allow government

executives to make policy decisions in an atmosphere free of

concern over possible litigation. Jd. at 32.

Over the years, the definition of discretion has been refined

and qualified somewhat. See Driscoll v. United States, 525

F.2d 136, 138 (9th Cir. 1975). This circuit employs a test which

distinguishes between the “planning level” of governmental

activity and those acts designed to carry out policy, the “opera-

tional level.” Thompson v. United States, 592 F.2d 1104, 1111

(9th Cir. 1979). Because decisions at the planning level establish

governmental policy, they are not actionable. But where deci-

sions occur at the operational level, the discretionary function

exemption provides no protection from liability even though

such decisions or acts may involve elements of discretion.

Lindgren v. United States, 665 F.2d 978, 980 (9th Cir. 1982);

see also Thompson, 592 F.2d at 1111; Driscoll, 525 F.2d at 138.

In addition to examining the level at which the conduct

occurred, we also consider two other factors which are particu-

larly important when determining the immunity of foreign

states: the ability of United States courts to evaluate the act or

omission of the state, and the potential impairing effect such

an evaluation would have on the effective administration of

the state’s government. Lindgren, 665 F.2d at 980; Driscoll,

525 F.2d at 138.

federal agency or an employee of the Government, whether or not the

discretion involved be abused.

28 U.S.C. § 2680(a)(1982).

A-32

We conclude that of those alleged acts or omissions on the

part of Mexico which contributed to the accident, none was

discretionary. First, while Mexico’s decision to enter into the

Prisoner Exchange Treaty with the United States or to transfer

these particular prisoners to United States custody might well

be deemed discretionary, those decisions are not implicated in

the instant action. Rather, appellants allege that Mexico negli-

gently maintained, directed and piloted the aircraft. Such

conduct represents measures taken to implement the broader

policy or plan to exchange prisoners. The acts or omissions in

question involved the transportation of prisoners, an act re-

mote from the policy decision to transfer them. While the pilot

and air controllers had considerable discretion in carrying out

their assigned tasks, see Lindgren, 665 F.2d at 980; Thompson,

592 F.2d at 1111; Driscoll, 525 F.2d at 138, it is clear that they

acted on the operational ievel, far from the centers of policy

judgment. See also Ingham v. Eastern Air Lines, Inc., 373 F.2d

227, 238 (2d Cir. 1967) (air controller’s failure to comply with

regulations occurred at operational level); United Air Lines,

Inc. v. Wiener, 335 F.2d 379, 396 (9th Cir. 1964); Eastern Air

Lines v. Union Trust Co., 221 F.2d 62, 78 (D.C. Cir. 1955)(con-

trol tower operators act at operational level).

Second, this dispute does not raise questions of policy

decisions of Mexico, only issues of historical fact and tort

liability. Therefore, the trial court can readily evaluate the

allegedly tortious acts as it is well suited to the task of

determining facts and applying the relevant law.

Third, we see nothing which suggests that denying immunity

will impair the effectiveness of Mexico’s penal or aviation

authorities. A trial on the merits will call for the testimony of

individuals involved in the accident, primarily Mexican air

traffic control personnel. There seems little doubt that the air

traffic authorities and other relevant governmental entities can

function without diminished efficacy while their employees

testify in discovery or court proceedings.

In conclusion, the claims asserted by appellants fall within

the exception to immunity for noncommercial torts as pro-

A-33

vided by section 1605 (a)(5) of the FSIA. Additionally, the

conduct of Mexican personnel which may have led to the crash

occurred at the operational level and was not discretionary.

Thus, Mexico is not immune under the FSIA and subject

matter jurisdiction exists.

Il. Personal Jurisdiction

Personal jurisdiction over a foreign state exists in any case

where the foreign state is not entitled to immunity under the

FSIA and service has been made in accordance with the

statute’s requirements. 28 U.S.C. § 1330(b)(1982). There has

been no assertion that service did not comply with the statute,

but we must still consider whether the exercise of personal

jurisdiction exceeds the constitutional limits imposed by the

due process clause. Because California’s long-arm statute ex-

tends the state’s jurisdiction to the very limits of due process

uder the federal constitution, we examine personal jurisdiction

in light of due process as defined by the United States Supreme

Court. Thomas P Gonzalez Corp. v. Consejo Nacional de

Produccion de Costa Rica, 614 F.2d 1247, 1250 (9th Cir. 1980)

(quoting Threlkeld v. Tucker, 496 F.2d 1101, 1103 (9th Cir.

1974)), cert. denied, 419 U.S. 1023 (1974). As stated in /nterna-

tional Shoe Co. v. Washington, 326 U.S. 310 (1945), due

process requirements are met only if the defendant has suffi-

cient minimum contacts with the forum “such that the main-

tenance of the suit does not offend ‘traditional notion: of fair

play and substantial justice.’ ” Jd. at 316.

In our circuit, the defendant’s contacts with the forum state

are analyzed in two ways. If the non-resident defendant’s

activities within a state are “substantial” or “continuous and

systematic,” there is a sufficient relationship between the de-

fendant and forum to support jurisdiction even if the cause of

action is unrelated to the defendant’s forum-related activities:

Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437,

446-48 (1952); Data Disc, Inc. v. Systems Technology Assoc.,

Inc., 557 F.2d 1280, 1287 (9th Cir. 1977). If, however, the

defendant’s activities are not so pervasive as to subject the

A-34

defendant to general jurisdiction, personal jurisdiction turns

on the nature and quality of the defendant’s contacts relating

specifically to the cause of action. Data Disc, 557 F.2d at 1287.

To find limited jurisdiction based on the defendant’s forum-re-

lated activities, we require (1) the non-resident defendant to

perform some act by which he purposefully avails himself of

the benefits and protections of the forum’s laws; (2) the

plaintiff’s claim to arise out of or result from the defendant’s

forum-related activities, and (3) the exercise of jurisdiction to

be reasonable. Raffaele v. Compagnie Generale Maritime, 707

F.2d 395, 397 (9th Cir. 1983); Data Disc, 557 F.2d at 1287.

Because we find sufficient contacts to justify limited jurisdic-

tion, it is unnecessary to consider whether general jurisdiction

exists.

The first two requrements of the Data Disc minimum con-

tacts analysis are easily satisfied. In order to land during

hazardous weather conditions, the pilot of the aircraft sought

and received permission to enter United States airspace pur-

suant to procedures negotiated for precisely those circum-

stances. While receiving navigational assistance from San

Diego air control, the pilot twice intentionally entered United

States airspace. In so doing, Mexico purposefully availed itself

of the benefits of operating its aircraft over California. In

addition, the claims of appellants arise from the plane’s flight

and crash in California.

Jurisdiction is reasonable where “under the totality of the

circumstances the defendant could reasonably anticipate being

called upon to present a defense in a distant forum.” Taubler v.

Giraud, 655 F.2d 991, 993 (9th Cir. 1981); World-Wide

Volkswagen Corp. v. Woodson, 444 U. S. 286, 297 (1980).

While there is no mechanical! or quantitative test for determin-

ing the reasonableness of jurisdiction, at least seven factors are

relevant. Insurance Co. of North America v. Marina Salina

Cruz, 649 F.2d 1266, 1270 (9th Cir. 1981) [hereinafter cited as

I.N.A.). To determine reasonableness, we consider the relative

significance of each factor and balance them all. Jd. at 1273.

We apply these factors below and conclude that personal

jurisdiction over Mexico is reasonable.

A-35

A. Extent of Purposeful Interjection.

The extent of Mexico’s purposeful interjection into Califor-

nia was substantial. The pilots intentionally entered United

States airspace with the approval of Tijuana air control in

order to make an instrument landing. While the decision to

enter was made under exigent circumstances, the flight over

California was neither accidental nor fortuitous. The pilot and

Tijuana air control followed detailed procedures agreed to by

Mexico and set forth in the Letter of Agreement in anticipation

of weather conditions necessitating instrument landings. Fur-

thermore, after the second missed approach, the pilot rejected

a suggestion to land the aircraft at alternate airports in favor

of another instrument approach over San Diego.

B. Burden of Defending.

While a primary concern in assessing the reasonableness of

jurisdiction is the burden on the defendant, it is not dispositive

and is to be considered in light of other relevant factors.

World-Wide Volkswagen, 444 U.S. at 292; Raffaele, 707 F.2d

at 398.

Undoubtedly, litigating abroad imposes significant inconven-

iences upon the party appearing in a foreign country. Transpor-

tation of witnesses, attorneys and physical evidence presents

problems of logistics and expense, as does the need to translate

testimony and documents. However, these inconveniences are

minimized in the instant case. The physical evidence, including

the wreckage and crash site, is located in San Diego. Other

evidence, such as National Transportation Safety Board

(NTSB) reports and the testimony of San Diego air traffic

controllers and NTSB investigators, is in English and is avail-

able in San Diego as well. Additionally, advances in interna-

tional transportation and communication facilities have

diminished many of the burdens of litigating in a foreign

nation. See Hanson v. Denckla, 357 U.S. 235, 251 (1958);

Raffaele, 707 F.2d at 398. Important Mexican witnesses, such

as the Tijuana air traffic controllers, are located just across the

border and are readily accessible via modern transportation

A-36

and communication links. Litigating the instant case in San

Diego is far less burdensome to the defendant than much of

the interstate litigation routinely pursued in the United States.

Indeed, the burden on Mexico to defend in San Diego is as

small as any foreign defendant may be expected to bear.

Compare Hedrick v. Daiko Shoji Co., Ltd., Osaka, 715 F.2d

1355, 1359 (9th Cir. 1983); Raffaele, 707 F.2d at 398; I.N.A.,

649 F.2d at 1271-72.

C. Conflict with Mexico’s Sovereignty.

Mexico argues that its sovereignty raises a barrier to the

reasonableness of jurisdiction. As was recognized in /.N.A.,

the reasonableness of jurisdiction depends to some extent on

the potential affront to the sovereignty of defendant’s state.

I.N.A., 649 F.2d at 1272. While a defendant’s sovereignty may

weigh against allowing jurisdiction, that effect is minimal here.

By denying immunity to foreign states defending certain

claims, the FSIA reflects the modern realities of the interde-

pendence of nations. Because personal jurisdiction turns on a

determination of immunity, the FSIA represents Congress’

decision that jurisdiction does not pose an affront to the

sovereignty of the defending nation so serious as to preclude it.

Thus, while we are respectful of Mexico’s sovereignty, we find

that in the present case it does not weigh heavily against the

reasonableness of jurisdiction.

D. Interests of Forum State.

California has strong interests in protecting its residents

from injury and in furnishing a forum where their injuries may

be remedied. Raffaele, 707 F.2d at 398. It has a special interest

in exercising jurisdiction over those who have committed

tortious acts within its boundaries. By subjecting the tortfeasor

to liability for damages which are the proximate result of the

tort, California acts to deter wrongful conduct affecting those

within the state. Data Disc, 557 F.2d at 1288.

In addition, California also has an interest in ensuring that

its citizens are fully compensated for their injuries. Such an

interest is important both to ensure that injured individuals

A-37

recover for their losses and to protect the state’s economic

resources from unnecessary expenditures. Finally, the forum

state’s interest in protecting the welfare of its minor residents is

unquestionably important. Kulko v. California Superior

Court, 436 U.S. 84, 98 (1978).

E. Most Efficient Resolution.

District court in San Diego would be the most efficient

judicial forum. A court sitting in the district where the injury

occurred and where the evidence is located ordinarily will be

the most efficient forum. Raffaele, 707 F.2d at 399. As dis-

cussed above, San Diego will most likely be the richest source

of physical evidence, witnesses and documents.

The district court is required to apply California’s choice of

law rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487,

496 (1941). If Mexican law should apply, that would admittedly

have a negative effect on the efficiency of proceeding in the

United States. J.N.A., 649 F.2d at 1273. However, we cannot

tell from the briefs or record whether a true conflict of law

exists. Mexico has not shown how its law conflicts with

relevant California law or why its law should be applied. In

any event, we are confident that a court in California can be

trusted to apply properly the law of a foreign state. Thus,

choice of law considerations are not a major impediment to the

efficient resolution of this dispute.

F. Convenient and Effective Relief for Plaintiffs.

Undoubtedly, a California court affords appellants the most

convenient and effective site for judicial relief. Not only is

important evidence present in the United States, but concerns

for appellants’ personal comfort and convenience argue in

favor of a United States forum. As this court observed in

Raffaele, “Individual claimants ‘would be at a severe disad-

vantage if they were forced to follow the. . . [defendant] to a

distant state in order to hold it legally accountable. When

claims were small or moderate individual claimants frequently

could not afford the cost of bringing an action in a foreign

forum—thus in effect making the company judgment proof.’ ”

A-38

Raffaele, 707 F.2d at 399 (quoting McGee v. International Life

Ins. Co., 355 U.S. 220, 223 (1957)). Access to a California

court is important to appellants for obtaining relief.

Finally, appellants’ likelihood of enforcing a judgment

against Mexico also bears on the effectiveness of a California

court as a forum for resolving the dispute. /.N.A., 649 F.2d at

1273. Mexico is not immune to jurisdiction and thus enforce-

ment of a judgment is not barred. Mexico has not shown how

a judgment against it is unenforceable and thus we cannot

conclude that such enforcement is so unlikely as to weigh

against the reasonableness of jurisdiction.

G. Availability of an Alternate Forum.

Appellants recognize that Mexico affords an alternative

forum but argue that it is, for practical purposes, unavailable.

While the practicality of the alternative forum must be consid-

ered, see Hedrick, 715 F.2d at 1359; Raffaele, 707 F.2d at 399,

appellants must carry the burden of proving the unavailability

of an alternative forum. /.N.A., 649 F.2d at 1273. Appellants

allude to a severe maximum limit on wrongful death recov-

eries, see Hurtado v. Superior Court, 11 Cal.3d 574, 578-79,

114 Cal. Rptr. 106, 168 (1974), but offer no proof of applicable

Mexican law to substantiate their allegation. Because appel-

lants fail to carry their burden of proof, we cannot conclude

that they are left without an alternative forum.

After considering all the relevant factors, we conclude that,

on balance, it would be reasonable for a California court to

exercise jurisdiction over Mexico and thus, personal jurisdic-

tion is consistent with due process requirements.

REVERSED AND REMANDED.

A-39

Memorandum Decision and Order of the United States

District Court for the Southern District of California, dated

January 17, 1983

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

aos

Civil No. 81-1067-JLI(H)

URSULA BAINES SANCHEZ, by and through her Guardians ad

Litem JOSEPH J. CERNIE and SALLY Z. CERNIE,

Plaintiffs,

—Vvs.—

THE REPUBLIC OF MEXICO, a Foreign Government, ESTATE

OF RENE HERNANDEZ RODRIGUEZ, BEECH AIRCRAFT, a

Kansas corporation,

r Defendants.

aoe

Civil No. 82-0413-JLI(M)

ERIN RAYNE OLSEN, a Minor by PATTY SHELDON, Maternal

Grandmother and Guardian ad Litem,

Plaintiffs,

—vs.—

GOVERNMENT OF MEXICO, ATTORNEY GENERAL OF MEXICO,

UNITED STATES OF AMERICA, FEDERAL AVIATION AD-

MINISTRATION OF THE UNITED STATES OF AMERICA, et al.,

Defendants.

A-40

MEMORANDUM DECISION AND ORDER

The Goverment of Mexico, appearing specially, brings these

two motions to dismiss contending: 1) that the District Court

lacks personal jurisdiction over the Government of Mexico; 2)

that the sovereign immunity provision of 28 U.S.C. § 1605(a)

bar this action; and 3) that the action should be dismissed on

the basis of forum non conveniens. Since this court finds there

is no personal jurisdiction the latter two issues need not be

discussed, and accordingly, the Government of Mexico is

dismissed as a defendant in these two cases.

The relevant facts are as follows: Pursuant to a treaty for the

transfer of prisoners between the United States and Mexico,

the Government of Mexico arranged a flight from Yucatan to

Tijuana, Baja California, where several prisoners were to be

exchanged. Enroute to Tijuana, weather conditions made it

necessary that the plane, owned and piloted by the Govern-

ment of Mexico, enter United States airspace. In its approach

to the Tijuana airport, the plane crashed some 1300 yards

North of the United States/Mexico border. All on board were

killed, and the plaintiffs in these cases are heirs of two of the

deceased passengers who were U.S. citizen prisoners to be

exchanged.

DISCUSSION

In determining whether a federal court has the power to

exercise personal jurisdiction over a defendant, two indepen-

dent considerations need be made: 1) whether an applicable

statute potentially confers personal jurisdiction over the defen-

dant; and 2) whether such an assertion comports with the due

process requirements of the United States Constitution. Data

Disc, Inc. vs. Systems Tech Assoc., Inc., 557 F.2d 1280, 1286

(9th Cir. 1977). The Foreign Sovereign Immunities Act, 28

U.S.C. 1602, et. seg. (FSIA) clearly satisfies the first require-

ment, see Meadows vs. Dominican Republic, 542 F. Supp. 33,

34 (N.D. Cal 1982) and therefore, our concern here is with the

due process limitations of the Constitution.

A-41

There is no due process violation if the defendant “has

certain minimum contacts with (the forum state) such that the

maintenance of the suit does noi offend ‘traditional notions of

fair play and substantial justice.’ ” International Shoe vs.

Washington, 326 U.S. 310, 316 (1945). As discussed in Data

Disc, supra, if the non-resident defendant’s activities within a

state are neither “substantial” nor “continuous and system-

atic,” jurisdiction depends on the nature and quality of those

of the defendant’s contacts that are related to the cause of

action. /Jnsurance Company of North America vs. Marina

Salina Cruz, 649 F.2d 1266, 1270 (9th Cir. 1981).

General Jurisdiction

In determining whether there is general jurisdiction, this

court must determine whether the contacts in this case are

“substantial” or “continuous and systematic.”

In Meadows vs. Dominican Republic, 542 F.Supp. 33, 34

(N.D. Cal 1982) the court held that the contacts to be analyzed

are only those with the state and not the United States. This

court feels the Meadows decision is persuasive, and thus

contacts with the United States are immaterial; state contacts

alone need be considered.

The plaintiffs have not shown, to the satisfaction of this

court, that there are sufficient contacts, of either a “systematic

and continuous” or “substantial” nature so as to allow general

personal jurisdiction in this case.

Further, the legislative history of the FSIA indicates that

each immunity provision requires “some connection between

the lawsuit and the United States.” Report of House Judiciary

Committee Nos. 94-1487 reprinted in U.S. Code Cong. and

Administrative News 6604, 6612. This language would indicate

the contemplation of a case by case minimum contacts anal-

ysis, almost foregoing the possibility of general personal juris-

diction in cases under the FSIA.

Because of the failure of proof, or alternatively the intent of

Congress, this court finds no general personal jurisdiction over

the defendant in this case.

A-42

Minimum Contacts Analysis

In evaluating the contacts, the Ninth Circuit has required the

following three elements: 1) the defendant must purposefully

avail itself of the privilege of conducting activities in the

forum, thereby invoking the benefits and protections of the

forum laws; 2) the claim must arise or result from the defen-

dant’s forum-related activities; and 3) the exercise of jurisdic-

tion must be reasonable. Data Disc, supra, 557 F.2d at 1207.

As the court did in JNA, this court need not decide the first

and second considerations.

This court, in reviewing the entire record and supporting

documentation, believes that a weighing of the factors enumer-

ated in JNA, 649 F.2d at 1270, plus other relevant facts

brought forth in the pleadings and oral argument, require a

conclusion that it would be unreasonable to find jurisdiction

over Mexico in this case. The factors enumerated in JNA, and

this court’s findings as to those factors, are as follows:

(A) The extent of the purposeful interjection into the forum

state. In JNA, the court stated: “the slightness of the purpose-

ful interjection militates against the reasonableness of jurisdic-

tion.” Jd. at 1271. In this case, the degree of purposeful

interjection is especially minimal. Not only was the flight for

the specific purpose of carrying out the mandate of the

prisoner exchange treaty, all the events were done under the

express constraints of the letter of agreement describing proce-

dures for the use and coordination of airspace around the

United States/Mexico border. Specifically, only certain me-

teorological conditions allowed the use of such airspace, and

the coordination of such use was highly limited. See letter of

agreement, effective date April 1, 1979, paragraph 4(b)(2),

attached as Exhibit “D” to plaintiff, Sanchez’ opposition.

Thus, the smallness of purposeful interjection reduces the

anticipation and reasonableness of jurisdiction, and this factor

weighs against personal jurisdiction being asserted in this case.

(B) The burden on the defendant of defending in the forum.

The primary concern in balancing the burdens on the parties is,

A-43

of course, for the defendant. JNA, supra, 649 F.2d at 1272. In

this case, many of the causative factors are alleged to have

occurred in Mexico, far from this forum. The origin of the

plane, the training of the pilot, and the maintenance of the

aircraft all took place in the interior of Mexico. While any

pilot error or negligence could have occurred in the United

States, the burden on the defendant in asserting its position as

to the other allegations is great, and “the burdens on a

defendant are of particular significance if, as here, the defen-

dant has done little to reach out to the forum state.” /d.

dant’s state. JNA noted that the sovereign status of a defen-

dant militates against the reasonableness of jurisdiction, but

did not relate a holding as to the effect of the FSIA. Jd. The

issue, then, becomes whether the FSIA gives such clear notice

as to remove the expectations of immunity, thereby precluding

this as a reasonableness factor. Although this court need not

decide whether Mexico is immune from suit in this case, it does

find that the immunity issue is very close. Therefore, there was

no clear notice to Mexico of the removal of the expectations of

immunity so as to weigh in favor of the reasonableness of

personal jurisdiction. Thus, this factor certainly bears nega-

tively on the reasonableness of personal jurisdiction.

(D) The forum’s interest in adjudicating the dispute. Al-

though there was some question at oral argument as to this, on

balance, this factor probably weighs in favor of reasonableness

in asserting personal jurisdiction.

(E) The most efficient resolution of the controversy. Because

of the location of proof, much of which presumably is in

Mexico, and problems of enforcing a judgment of this court,

see INA, 649 F.2d at 1273, this factor, too, weighs against a

finding of reasonableness.

(F) The importance of the forum to plaintiff’s interest in

convenient and effective relief. Again, the problem of enforc-

ing judgments, and as noted below, the availablility of an

alternative forum, weigh against the reasonableness of per-

sonal jurisdiction in this case.

A-44

(G) The existence of an alternative forum. Plaintiff must

carry the burden of going forward on this issue, /d. at 1273,

and offered no proof that an alternative forum does not exist.

Further, the Government of Mexico has argued the existence of

such an alternative forum. Therefore, this court need not reach

the question whether the non-existence of a Mexican forum

would affect the reasonableness of jurisdiction in this court.

A balancing of these factors compels this court to find that

personal jurisdiction would be unreasonable if asserted against

the Government of Mexico in this case, anc therefore violative

of due process. Therefore, the defendant, Government of

Mexico, is hereby dismissed as a defendant in these two

actions.

IT Is SO ORDERED.

DATED: January 17, 1983.

/s/ J. LAWRENCE IRVING

J. Lawrence Irving, Judge

United States District Court

COPIES TO COUNSEL:

Donald S. White, Esq., Maupin, Critler, Teplinsky & White

2029 Century Park East, Suite 2750, Los Angeles, CA 90067

Mark S. Hennings, Esq., Shield & Smith, 1200 Wilshire Blvd.,

Suite 400, Los Angeles, CA 90017

Stephen V. Petix, Esq., Asst. U.S. Attorney, 940 Front

Street, Room 5-N-19, San Diego, CA 92189

Ramon Castro, Esq., Christopher J. Schatz, Esq., Lightner &

Castro, 3104 Fourth Avenue, San Diego, CA 92103

A-45

Order and Judgment of the United States District Court for the

Southern District of California, dated June 22, 1983

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Case No. 82-0413-JLI (M)

ERIN RAYNE OLSEN, a Minor by PATTY SHELDON, Maternal

Grandmother and Guardian ad Litem,

Plaintiffs,

VS.

GOVERNMENT OF MEXICO, ATTORNEY GENERAL

OF MEXICO, etc., et al.,

Defendants.

Case No. 81-1067-JLI (H)

URSULA BAINES SANCHEZ, by and through her Guardians ad

Litem, JOSEPH J. CERNIE and SALLY Z. CERNIE,

Plaintiffs,

VS.

THE REPUBLIC OF MEXICO,

a Foreign Government, etc., et al.,

Defendants.

A-46

OKDER OF DISMISSAL

The motion of Plaintiff OLSEN for express determination

and order pursuant to Federal Rules of Civil Procedure, Rule

54(b), which motion was joined in by Plaintiff SANCHEZ, was

heard by the court, the Honorable J. Lawrence Irving, Judge

presiding, on June 20, 1983. Said motion was not opposed by

Defendant REPUBLIC OF MEXICO or Defendant UNITED

STATES OF AMERICA. Said motion references the court’s prior

ruling which granted Defendant REPUBLIC OF MEXICO’s mo-

tion to dismiss as to said defendant REPUBLIC OF MEXICO

entered January 17, 1983. After consideration of the issues and

authorities, the court rules as follows:

IT Is HEREBY DETERMINED AND ORDERED:

1. That a judgment of dismissal of Defendant REPUBLIC OF

MEXICO be entered nunc pro tunc as of the date of the ruling

granting Defendant REPUBLIC OF MEXICO’s motion to dismiss

in these cases;

2. That said judgment of dismissal is expressly made pur-

suant to Federal Rules of Civil Procedure, Rule 54(b); and

3. That there is no just reason for delay in directing the

entry of such final judgment.

DATED: June 22, 1983

J. LAWRENCE IRVING

United States District Court Judge

A-47

Order Extending Time to File Petition for Writ of Certiorari,

dated June 14, 1984

SUPREME COURT OF THE UNITED STATES

No. A-1012

aoe

UNITED MEXICAN STATES,

Petitioner,

—_—Yy.—

ERIN RAYNE OLSEN, ETC., ET AL.

a oe

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

UPON CONSIDERATION of the application of counsel for

petitioner(s),

IT IS ORDERED that the time for filing a petition for writ of

certiorari in the above-entitled cause be, and the same is

hereby, extended to and including August 27, 1984.

/s/ WILLIAM H. REHNQUIST

Associate Justice of the Supreme

Court of the United States

Dated this 14th

day of June, 1984.

A-48

United States Constitution, Amendment V

FIFTH AMENDMENT

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval foxces,

or in the Militia, when in actual service in time of War or

public danger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for public

use, without just compensation.

A-49

Treaty on the Execution of Penal Sentences, Nov. 25, 1976,

United States—-Mexico

MEXICO

Prisoner Transfer

Treaty signed at México November 25, 1976;

Ratification advised by the Senate of the United States of

America, subject to a declaration,{'] July 21, 1977;

Ratified by the President of the United States of America

August 2, 1977;

Ratified by Mexico October 24, 1977;

Ratifications exchanged at Washington October 31, 1977;

Proclaimed by the President of the United States of America

November 12, 1977;

Entered into force November 30, 1977.

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

A PROCLAMATION

CONSIDERING THAT:

The Treaty between the United States of America and the

United Mexican States on the Execution of Penal Sentences

was signed at Mexico City on November 25, 1976, the text of

which Treaty, in the English and Spanish languages, is hereto

annexed;

The Senate of the United States of America by its resolution

of July 21, 1977, two-thirds of the Senators present concurring

therein, gave its advice and consent to ratification of the

Treaty;

The Treaty was ratified by the President of the United States

of America on August 2, 1977, in pursuance of the advice and

1 The declaration reads: “That the United States Government declares

that it will not deposit its instrument of ratification until after the implement-

ing legislation referred to in article 1V has been enacted.”

A-50

consent of the Senate, and was duly ratified on the part of the

United Mexican States;

It is provided in Article X of the Treaty that the Treaty shall

enter into force thirty days after the exchange of instruments

of ratification;

The instruments of ratification of the Treaty were exchanged

at Washington on October 31, 1977; and accordingly the Treaty

will enter into force on November 30, 1977;

Now, THEREFORE, I, Jimmy Carter, President of the United

States of America, proclaim and make public the Treaty, to the

end that it shall be observed and fulfilled with good faith on

and after November 30, 1977, by the United States of America

and by the citizens of the United States of America and all

other persons subject to the jurisdiction thereof.

IN TESTIMONY WHEREOF, I have signed this proclamation

and caused the Seal of the United States of America to be

affixed.

DONE at the city of Washington this twelfth day of Novem-

ber in the year of our Lord one thousand nine hundred

seventy-seven and of the Independence of the United States of

America the two hundred second.

JIMMY CARTER

By the President:

CYRUS VANCE

Secretary of State

[SEAL]

A-51

TREATY BETWEEN THE UNITED STATES OF

AMERICA AND THE UNITED MEXICAN STATES ON

THE EXECUTION OF PENAL SENTENCES

The United States of America and the United Mexican

States, desiring to render mutual assistance in combating crime

insofar as the effects of such crime extend beyond their borders

and to provide better administration of justice by adopting

methods furthering the offender’s social rehabilitation, have

resolved to conclude a Treaty on the execution of penal

sentences and, to that end, have named their plenipotent.aries

Joseph John Jova, Ambassador Extraordinary and Plenipo-

tentiary by the President of the United States of America and

Alfonso Garcia Robles, Secretary of Foreign Relations by the

President of the United Mexican States,

Who, having exchanged their full powers and having found

them in proper and due form, have agreed on the following

Articles:

A-52

Article I

(1) Sentences imposed in the United Mexican States on

nationals of the United States of America may be served in

penal institutions or subject to the supervision of the authori-

ties of the United States of America in accordance with the

provisions of this Treaty.

(2) Sentences imposed in the United States of America on

nationals of the United Mexican States may be served in penal

institutions or subject to the supervision of the authorities of

the United Mexican States in accordance with the provisions of

this Treaty.

Article II

This Treaty shall apply only subject to the following condi-

tions:

(1) That the offense for which the offender was convicted

and sentenced is one which would also be generally

punishable as a crime in the Receiving State, provided,

however, that this condition shail not be interpreted so as

to require that the crimes described in the laws of the

two States be identical in such matters not affecting the

character of the crimes such as the quantity of property

or money taken or possessed or the presence of interstate

commerce.

(2) That the offender must be a national of the Receiving

State.

(3) That the offender not be a domiciliary of the Transfer-

ring State.

(4) That the offense not be a political offense within the

meaning of the Treaty of Extradition of 1899 ['] between

the parties, nor an offense under the immigration or the

purely military laws of a party.

(5) That at least six months of the offender’s sentence

remains to be served at the time of petition; and

| TS 242; 31 Stat. 1818.

A-53

(6) That no proceeding by way of appeal or of collateral

attack upon the offender’s conviction or sentence be

pending in the Transferring State and that the prescribed

time for appeal of the offender’s conviction or sentence

has expired.

Article III

Each State shall designate an authority to perform the

functions provided in this Treaty.

Article 1V

(1) Every transfer under the Treaty shall be commenced by

the Authority of the Transferring State. Nothing in this Treaty

shall prevent an offender from submitting a request to the

Transferring State for consideration of his transfer.

(2) If the Authority of the Transferring State finds the

transfer of an offender appropriate, and if the offender gives

his express consent for his transfer, said Authority shall trans-

mit a request for transfer, through diplomatic channels, to the

authority of the Receiving State.

(3) If the Authority of the Receiving State approves the

request, it shall promptly so inform the Transferring State and

shall initiate the necessary procedures to effect the transfer of

the offender. If it does not approve the request, it shall so

notify promptly the Authority of the Transferring State.

(4) In deciding upon the transfer of an offender the Author-

ity of each Party shall bear in mind all factors bearing upon

the probability that the transfer will contribute to the social

rehabilitation of the offender, including the nature and severity

of his offense and his previous criminal record, if any, his

medical condition, the strength of his connections by resi-

dence, presence in the territory, family relations and otherwise

to the social life of the Transferring State and the Receiving

State.

A-54

(5) If the offender was sentenced by the courts of a state of

one of the Parties, the approval of the authorities of that state,

as well as that of the Federal Authority, shall be required. Ihe

Federal Authority of the Receiving State shall, however, be

responsible for the custody of the transferred offender.

(6) No offender shall be transferred unless either the sen-

tence which he is serving has a specified duration, or such a

duration has subsequently been fixed by the appropriate ad-

ministrative authorities.

(7) The Transfering State shall furnish the Receiving State a

statement showing the offense of which the offender was

convicted, the duration of the sentence, the length of time

already served by the prisoner and any credits to which the

offender is entitled, such as, but not limited to, work done,

good behavior or pretrial confinement. Such statement shall be

translated into the language of the Receiving State and duly

authenticated. The Transferring State shall also furnish the

Receiving State a certified copy of the sentence handed down

by the competent judicial authority and any modifications

thereof. It shall also furnish additional information that might

be useful to the Authority of the Receiving State in determin-

ing the treatment of the convict with a view to his social

rehabilitation.

(8) If the Receiving State considers that the documents

supplied by the Transferring State do not enable it to imple-

ment this Treaty, it may request additional information.

(9) Each Party shall take the necessary legislative measures

and, where required, shall establish adequate procedures, to

give for purposes of this Treaty, legal effect, within its territory

to sentences pronounced by courts of the other party.

Article V

(1) Delivery of the offender by the authorities of the Trans-

ferring State to those of the Receiving State shall occur at a

place agreed upon by both parties. The Transferring State shall

A-55

afford an opportunity to the Receiving State, if it so desires, to

verify, prior to the transfer, that the offender’s consent to the

transfer is given voluntarily and with full knowledge of the

consequences thereof, through the officer designated by the

laws of the Receiving State.

(2) Except as otherwise provided in this Treaty, the comple-

tion of a transferred offender’s sentence shall be carried out

according to the laws and procedures of the Receiving State,

including the application of any provisions for reduction of the

term of confinement by parole, conditional release or

otherwise. The Transferring State shall, however, retain the

power to pardon or grant amnesty to the offender and the

Receiving State shall, upon being advised of such pardon or

amnesty release the offender.

(3) No sentence of confinement shall be enforced by the

Receiving State in such a way as to extend its duration beyond

the date at which it would have terminated according to the

sentence of the court of the Transferring State.

(4) The Receiving State shall not be entitled to any reim-

bursement for the expenses incurred by it in the completion of

the offender’s sentence.

(5) The Authorities of each Party shall, every six months,

exchange reports indicating the status of confinement of all

offenders transferred under this Treaty, including in particular

the parole or release of any offender. Either Party may, at any

time, request a special report on the status of the execution of

an individual sentence.

(6) The fact that an offender has been transferred under the

provisions of this Treaty shall not prejudice his civil rights in

the Receiving State in any way beyond those ways in which the

fact of his conviction in the Transferring State by itself effects

such prejudice under the laws of the Receiving State or any

State thereof.

A-56

Article VI

The Transferring State shall have exclusive jurisdiction over

any proceedings, regardless of their form, intended to chal-

lenge, modify or set aside sentences handed down by its courts.

The Receiving State shall, upon being advised by the Transfer-

ring State of action affecting the sentence, take the appropriate

action in accordance with such advice.

Article Vil

An offender delivered for execution of a sentence under this

Treaty may not be detained, tried or sentenced in the Receiving

State for the same offense upon which the sentence to be

executed is based. For purposes of this Article, the Receiving

State will not prosecute for any offense the prosecution of

which would have been barred under the law of that State, if

the sentence had been imposed by one of its courts, federai or

state.

Article VIII

(1) This Treaty may also be applicable to persons subject to

supervision or other measures under the laws of one of the

Parties relating to youthful offenders. The Parties shall, in

accordance with their laws, agree to the type of treatment to be

accorded such individuals upon transfer. Consent for the trans-

fer shall be obtained from the legally authorized person.

(2) By special agreement between the Parties, persons ac-

cused of an offense but determined to be of unsound mental

condition may be transferred for care in institutions in the

country of nationality.

(3) Nothing in this Treaty shall be interpreted to limit the

ability which the Parties may have, independent of the present

Treaty, to grant or accept the transfer of youthful or other

offenders.

A-57

o Article 1X

For the purposes of this Treaty,—

(1) “Transferring State” means the party from which the

offender is to be transferred.

(2) “Receiving State” means the party to which the offender

is to be transferred; and

(3) “Offender” means a person who, in the territory of one

of the parties, has been convicted of a crime and sentenced

either to imprisonment or to a term of probation, parole,

suspended sentence, or any other form of supervision or

conditional sentence without confinement.

(4) A “domiciliary” means a person who has been present in

the territory of one of the parties for at least five years with an

intent to remain permanently therein.

Article X

(1) This treaty is subject to ratification. The exchange of

ratifications shall take place in Washington.

(2) This Treaty shall enter into force thirty days after the

exchange of ratifications and shall remain in force for three

years. [']

(3) Should neither contracting Party have notified the other

ninety days before the three-year period mentioned in the

preceding paragraph has expired of its intention to let the

Treaty terminate, the Treaty shall remain in force for another

three years, and so on every three years.

l Nov. 30, 1977.

A-58

DONE at Mexico City in duplicate, this twenty-fifth day of

November, one thousand nine hundred seventy-six, in the

English and Spanish languages, each text of which shall be

equally authentic.

FOR THE UNITED STATES OF AMERICA:

/s/ JOSEPH JOHN Jova{']

FOR THE UNITED MEXICAN STATES:

/s/ ALFONSO GARCIA ROBLES[’]

l Joseph John Jova

Alfonso Garcia Robles

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TRATADO ENTRE LOS ESTADOS UNIDOS DE AMERICA

Y LOS ESTADOS UNIDOS MEXICANOS SOBRE LA

EJECUCION DE SENTENCIAS PENALES

Los Estados Unidos de América y los Estados Unidos

Mexicanos, animados por el deseo de prestarse mutuamente

asistencia en la lucha contra la criminalidad en la medida en

que los efectos de esta trascienden sus fronteras y de proveer a

una mejor administracion de la justicia mediante la adopcion

de metodos que faciliten la rehabilitacién social del reo, han

resuelto concluir un Tratado sobre la Ejecucién de Sentencias

Penales y, con tal fin, han nombrado sus plenipotenciarios:

El Presidente de los Estados Unidos de América, al sefior

Joseph John Jova, Embajador Extraordinario y Plenipoten-

ciario de los Estados Unidos de América en México y

El Presidente de los Estados Unidos Mexicanos, al senor

licenciado Alfonso Garcia Robles, Secretario de Relaciones

Exteriores quienes, después de haberse comunicado sus plenos

poderes y haberlos encontrado en buena y debida forma, han

convenido en los Articulos siguientes:

ARTICULO I

1. Las penas impuestas en los Estados Unidos Mexicanos a

nacionales de los Estados Unidos de América podran ser

extinguidas en establecimientos penales de los Estados Unidos

de América o bajo la vigilancia de sus autoridades, de confor-

midad con las disposiciones del presente Tratado.

2. Las penas impuestas en los Estados Unidos de América a

nacionales de los Estados Unidos Mexicanos podran ser extin-

guidas en establecimientos penales de los Estados Unidos

Mexicanos o bajo la vigilancia de sus autoridades, de confor-

midad con las disposiciones del presente Tratado.

ARTICULO If

El presente Tratado se aplicara unicamente bajo las si

guientes condiciones:

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1) Que el delito por el cual el reo fue declarado culpable y

sentenciado sea también generalmente punible en el Es-

tado Receptor, en la inteligencia que, sin embargo, esta

condici6n no sera interpretada en el sentido de requerir

que los delitos tipificados en las leyes de ambos estados

sean idénticos en aquellos aspectos que no afectan a la

indole del delito como, por ejemplo, la cantidad de los

bienes o del numerario sustraido 0 en posesidn del reo, o

la presencia de factores relativos al comercio interestatal.

2) Que el reo sea nacional del Estado Receptor.

3) Que el reo no esté domiciliado en el Estado Trasladante.

4) Que el delito no sea politico en el sentido del Tratado de

Extradicién de 1899 entre las Partes, ni tampoco un

delito previsto en las leyes de migraciOén o las leyes

puramente militares.

5) Que la parte de la sentencia del reo que quede por

cumplirse en el momento de la solicitud sea de por lo

menos seis meses.

6) Que ningun procedimiento de apelacion, recurso 0 juicio

en contra de la sentencia o de la pena esté pendiente de

resolucién en el Estado Trasladante y que el término

prescrito para la apelacién de la condena del reo haya

vencido.

ARTICULO III

Cada Estado designara una autoridad que se encargara de

ejercer las funciones previstas en el presente Tratado.

ARTICULO IV

1) Todo traslado conforme al presente Tratado se iniciara

por la Autoridad del Estado Trasladante. Nada de lo dispuesto

en el presente Tratado impedira a un reo presentar una solici-

tud al Estado Trasladante para que considere su traslado.

2) Si la Autoridad del Estado Trasladante considera proce-

dente el traslado de un reo y si éste da su consentimiento

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expreso para su traslado, dicha Autoridad transmitira una

solicitud en ese sentido, por los conductos diplomaticos, a la

Autoridad del Estado Receptor.

3) Si la Autoridad del Estado Receptor acepta la solicitud,

lo comunicara sin demora al Estado Trasladante e iniciara los

procedimientos necesarios para efectuar el traslado del reo. Si

no la acepta, lo hara saber sin demora a la Autoridad del

Estado Trasladante.

4) Al decidir respecto del traslado de un reo, la Autoridad

de cada una de las Partes tendra en cuenta todos los factores

pertinentes a la probabilidad de que el traslado contribuya a la

rehabilitacion social del reo, incluyendo la indole y gravedad

del delito y los antecedentes penales del reo, si los tuviere; las

condiciones de su salud; los vinculos que, por residencia,

presencia en el territorio, relaciones familiares u otros motivos,

pueda tener con la vida social del Estado Trasladante y del

Estado Receptor.

5) Si el reo fue sentenciado por los tribunales de un Estado

_ de una de las Partes, sera necesario tanto la aprobacion de las

autoridades de dicho Estado, como la de la Autoridad Federal.

No obstante, la Autoridad Federal del Estado Receptor sera

responsable de la custodia del reo.

6) No se llevara a cabo el traslado de reo alguno a menos

que la pena que esté cumpliendo tenga una duracién deter-

minada o que las autoridades administrativas competentes

hayan fijado posteriormente su duracion.

7) El Estado Trasladante proporcionara al Estado Receptor

una certificacién que indique el delito por el cual fue senten-

ciado el reo, la duracién de la pena, el tiempo ya cumplido por

el reo y el tiempo que deba abonarsele por motivos tales como,

entre otros, trabajo, buena conducta o prisién preventiva.

Dicha certificacién sera traducida al idioma del Estado Recep-

tor y debidamente legalizada. El Estado Trasladante también

proporcionara al Estado Receptor una copia certificada de la

sentencia dictada por la Autoridad Judicial competente y de

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cualesquiera modificaciones que haya tenido. El Estado Trasla-

dante también proporcionara toda informacion adicional que

pueda ser util a la Autoridad del Estado Receptor para deter-

minar el tratamiento del reo con vistas a su rehabilitacion

social.

8) Si el Estado Receptor considera que los informes propor-

cionados por el Estado Trasladante no son suficientes para

permitirle la aplicacién del presente Tratado, podra solicitar

informaci6én complementaria.

9) Cada una de las Partes tomara las medidas legislativas

necesarias y, en su caso, establecera los procedimientos ade-

cuados, para que, para los fines del presente Tratado, surtan

efectos legales en su territorio las sentencias dictadas por los

tribunales de la otra Parte.

ARTICULO V

1) La entrega del reo por las autoridades del Estado Trasla-

dante a las del Estado Receptor se efectuara en el lugar en que

convengan ambas Partes. Antes dei traslado, el Estado Trasla-

dante dara al Estado Receptor la oportunidad, si éste la

solicita, de verificar, por conducto del funcionario competente

conforme a las leyes del Estado Receptor, que el consenti-

miento del reo para su traslado fue otorgado voluntariamente

y con pleno conocimiento de las consecuencias inherentes.

2) Salvo disposicién en contrario del presente Tratado, el

cumplimiento de la sentencia de un reo trasladado se sujetara a

las leyes y procedimientos del Estado Receptor, incluyendo la

aplicacidn de toda disposicion relativa a la condena condi-

cional y a la reduccion del periodo de prisidn mediante libertad

preparatoria o cualquier otra forma de preliberacién. El Es-

tado Trasladante conservara, sin embargo, la facultad de

indultar al reo o concederle amnistia y el Estado Receptor, al

recibir aviso de tal indulto o amnistia, pondra al reo en

libertad.

3) Ninguna sentencia de prisién sera ejecutada por el Estado

Receptor de manera a prolongar la duracién de la pena mas

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alla de la fecha en que quedaria extinguida de acuerdo con la

sentencia del tribunal del Estado Trasladante.

4) El Estado Receptor no podra reclamar el reembolso de

los gastos en que incurra con motivo de la ejecucioén de la

sentencia del reo.

5) Las Autoridades de las Partes intercambiaran, cada seis

meses, informes sobre el estado que guarde la ejecucién de las

sentencias de todos los reos trasladados conforme al presente

Tratado, incluyendo en particular los relativos a la excarcela-

cidén (libertad preparatoria o libertad absoluta) de cualquier

reo. Cualquiera de las Partes podra solicitar, en cuaicuier

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