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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 917

## Text

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”?

i

il

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

iv
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.
© BORE CARs Cie io 6h eh EA ee . 13n.4

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,

v.

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.

tv

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 *

3

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

4

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’’).

6

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.

7

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:

8

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.

9

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.

10

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

1]

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

12

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

13

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).

14

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.)

15

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

16

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.)

17

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

18

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

19

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,

20

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.)

21

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.

22

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.

1

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

we

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

od

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.

a

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!
As

| 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

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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 f

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2152%3A1. Public record. Not legal advice.