Petition for Writ of Certiorari — Balair, Ltd. v. United States

Office Supreme Court, us. |

85-163.) FILED

Ne. JUL 29 1985

CLERK

IN THE |

Supreme Court of the United States

OctToBER TERM, 1985

Bauatr, Lrv., et al.,

Petitioners,

Vv.

UNITED STATES OF AMERICA, ef al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

LAURENCE A. SHORT

Amy LOESERMAN KLEIN*

Dae C. ANDREWS

Snort, Kiew & Karas, P.C.

Suite 303

1101 Thirtieth Street, N.W.

Washington, D.C. 20007

(202) 342-3000

Attorneys for Petitioners

* Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

i

QUESTION PRESENTED

Where it has been held that the United States vio-

lated an international treaty, and where other nations

bound by the same international obligations interpret

them to create private causes of action when violations

occur, was it error to dismiss a private suit against

the United States on the grounds that sovereign im-

munity bars such a suit unless explicitly waived by

treaty language?

il

LIST OF PARTIES

Petitioners in this case are:

Balair, Ltd.

Deutsche Lufthansa Aktiengesellschaft

Iberia, Linea Aereas de Espana

Koninklijke Luchtvaart Maatschappij

N.V. (KLM Royal Dutch Airlines)

Scandinavia Airlines System

Swissair, Swiss Air Transport

Company, Ltd., and

Union de Transport Aeriens

No parents, subsidiaries or affiliate companies of any

petitioner are publicly traded in the United States

or are otherwise owned in any measure by United

States citizens.

Respondents in this case are:

The United States of America

Donald D. Engen

Administrator

Federal Aviation Administration

Additional parties

The following parties were plaintiffs in the district

court, appellants in the court of appeals, but have not

joined in the petition for certiorari:

Finnair O.Y.

Linee Aeree Italiane (Alitalia)

Societe Anonyme Belge D’Exploitation

de la Navigation Aerienne (SABENA)

iii

The following governments appeared as amici curiae

in support of petitioners before the court of appeals:

The Government of Belgium

The Federal Republic of Germany

The Government of Spain

The Government of Switzerland

The following governments filed notes verbale in

support of petitioners with the U.S. Department of

State which were incorporated as appendices in the

above-referenced amici curiae brief:

The Government of France

The Government of The Netherlands

The Government of Italy

iv

TABLE OF CONTENTS

Page

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Statutory PRovIsIoNS AND REGULATORY ORDERSINVOLVED 2

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REASONS FOR GRANTING THE PETITION ............... 5

I. The Case Presents Important International Comity

Issues Which Should Be Decided By This Court. 6

II. The Issue of Whether Cort v. A:w Applies to Alle-

gations Concerning Waivers of Sovereign In-

munity Should Be Decided By This Court ...... 8

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TABLE OF AUTHORITIES

CasEs: Page

Bolt v. Hood, SBT Uae. GIS CUBGB) on ccc cnccccccesces 7

Bock v. Perkins, 139 U.S. 628 (1891) ............000. 7

British Caledonian Airways Ltd. v. Bond, and Balair

AG v. Bond, 665 F.2d 1153 (D.C. Cir. 1981) ..... 4,6

California v. Sierra Club, 451 U.S. 287 (1981) ........ 9

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ........ 9

Cont ©. Mam, Ge Ute Ge CRC 5 os ks cccecccniccss 6, 8, 9

Kolovrat v. Oregon, 366 U.S. 187 (1961) ............ 7

Patentas v. United States, 687 F.2d 707 (3d Cir. 1982). 6,9

Santovincenzo v. Egan, 284 U.S. 30 (1931) .......... 7

Wheeldin v. Wheeler, 373 U.S. 647 (1963) ........... 7

STATUTES:

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TREATIES :

Article 33, Convention on International Civil Aviation

(The Chicago Convention), 61 Stat. 1180, 15 U.N.

ot Ee Sart SS eee yy ye 4

MISCELLANEOUS:

Federal Aviation Administration, Department of

Transportation, ‘‘Special Federal Aviation Regu-

lation No. 40; Operation of Model DC-10 Air-

planes in the United States Prohibited’? (SFAR-

40), June 6, 1979, 44 Fed. Reg. 33396 (1979) .... 2,3, 4

IN THE

Supreme Court of the United States

OcToBER TERM, 1985

No.

Baar, Lup., et al.,

Petitioners,

Vv.

UNITED STATES OF AMERICA, e¢ al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Balair, Ltd., Deutsche Lufthansa Aktiengesellschaft,

Iberia, Linea Aereas de Espana, Koninklijke Lucht-

vaart Maatschappij N.V. (KLM Royal Dutch Air-

lines), Scandinavia Airlines System, Swissair, Swiss

Air Transport Company, Ltd., and Union de Trans-

ports Aeriens (hereafter, the foreign air carriers)

petition for a writ of certiorari to review the judg-

ment of the United States Court of Appeals for the

District of Columbia Circuit in this case.

2

OPINIONS BELOW

Neither the Judgment of the court of appeals, set

forth in Appendix A, nor the Memorandum and Order

of the district court, set forth in Appendix B, is

reported.

JURISDICTION

The judgment of the court of appeals was entered

on April 30, 1985. The jurisdiction of th. Court is

invoked under 28 U.s.C. § 1254(1).

STATUTORY PROVISIONS AND

REGULATORY ORDERS INVOLVED

28 U.S.C. § 1331

The district courts shall have original jurisdiction

of all civil actions arising under the Constitution,

laws, or treaties of the United States.

28 U.S.C. § 1350

The district courts shall have original jurisdiction

of any civil action by an alien for a tort only,

committed in violation of the law of nations or

a treaty of the United States.

Federal Aviation Administration, Department of

Transportation, “Special Federal Aviation Regu-

lation No. 40; Operation of Model DC-10 Air-

planes in the United States Prohibited” (SFAR-

40), June 6, 1979, 44 Fed. Reg. 33396 (1979)

Section 1. Contrary provisions of Parts 91, 121

and 129 of the Federal Aviation Regulations not-

withstanding, no person may land or takeoff any

Model DC-10 airplane within the United States,

except as authorized under §2 or otherwise au-

thorized by the Administrator.

3

Section 2. This regulation does not apply to a

foreign registered Model DC-10 airplane which,

at the time this regulation takes effect, is en route

to a place in the United States or is at a place

within the United States. These airplanes may

depart from the airport at which they are located,

or at which they arrive, for a place outside the

United States, using the most direct, feasible

route, and without passengers or cargo on board.

This Special Federal Aviation Regulation is

effective until amended or terminated by the Ad-

ministrator.

STATEMENT OF THE CASE

On May 25, 1979 American Airlines flight 191, a

DC-10 series 10 aircraft, crashed shortly after takeoff

at Chicago’s O’Hare International Airport. After

initial investigation the Administrator of the Federal

Aviation Administration (hereafter, the FAA), on

June 6, 1979 issued Special Federal Aviation Regu-

lation No. 40 (hereafter, SFAR-40). SFAR-40 pre-

eluded the takeoff and landing within the United States

of any DC-10 aircraft, regardless of series and re-

gardless of country of registry.

Almost simultaneously the countries of registry for

the foreign air carriers’ DC-10 aircraft issued their

own grounding orders. Unlike the FAA order, none

of the other grounding orders purported to ground

aircraft certificated by another sovereign nation. All

DC-10 airworthiness certificates were reinstated by the

governments of the foreign air carriers by June 21,

1979. SFAR-40 was not rescinded until July 13, 1979.

Shortly after SFAR-40 was issued two cases were

filed in the United States Court of Appeals for the

ci ae

4

District of Columbia Circuit challenging the legality

of the scope of the FAA’s grounding order. In British

Caledonian Airways Ltd. v. Bond, and Balair AG v.

Bond, 665 .F.2d 1153 (D.C. Cir. 1981) (hereafter,

Balair I), the court of appeals held that the FAA’s

issuance of SFAR-40 violated Article 33 of the Chi-

cago Convention,’ the relevant aviation bilateral agree-

ments, and section 1102 of the Federal Aviation Act

of 1958, as amended, 49 U.S.C. § 1502, insofar as it

purported to bar aircraft duly certificated by other

nations from U.S. airspace. 665 F.2d 1159-1168.

The foreign air carriers’ complaint in the instant

case seeks damages relating to the period after the

relevant European governments had reinstated all DC-

10 airworthiness certificates but before the United

States finally rescinded the unlawful SFAR-40 order.

Pursuant to Government motion, the district court

dismissed the action under Rule 1 4)(1) of the

Federal Rules of Civil Procedure on the following

grounds:

Plaintiffs do not contend that the Agreements

contain specific language waiving the govern-

ment’s sovereign immunity frem suit for viola-

tions of their provisions; rather they assert that

the Court must scrutinize the international regu-

latory scheme to determine whether a cause of

action for damages is required by implication.

We do not accept plaintiffs’ assertion.

Appendix B, infra, pages 8a-9a.

1The Convention on Internationa! Civili Aviation (The Chicago

Convention), opened for signature, December 7, 1944, 61 Stat.

1180, 15 U.N.T.S. 295, T.I.A.S. No. 1591 (ratified by the United

States August 9, 1946).

5)

A notice of appeal was filed on April 27, 1984. At

the appellate level the governments of Belgium, Ger-

many, Spain, Switzerland, France, The Netherlands

and Italy all expressed the view, either as amici curiae

or in notes verbale transmitted to the United States

Department of State, that dismissal was improper and

that suits such as the present one were intended to

exist against any signatory nation that breached its

international aviation obligations as defined in the rele-

vant international compacts. The amici curiae brief

and accompanying notes verbale also apprised the

court of appeals that analogous causes of action would

lie in European courts if European governments vio-

lated the treaty and bilateral agreement provisions at

issue, and that no European government could avail

itself of a defense such as governmental sovereign

immunity to secure the dismissal of such a suit. On

April 30, 1985, the e urt affirmed the district court’s

Memorandum and Order without opinion.

REASONS FOR GRANTING THE PETITION

Petitioners know of no other case raising the precise

issue raised here, that is, whether the intended bene-

ficiaries of self-executing treaties and international

agreements may have a cause of action for damages

resulting from an established violation by a signatory

nation of its international covenants where ‘‘sovereign

immunity” is not waived on the face of the treaty.

All other nations that have expressed an opinion as

to this issue have urged that a right to recover was

intended to exist where the international obligations

here involved are violated by any signatory. The

ease therefore raises important issues of international

comity.

6

The failure of the trial court to utilize the prin-

ciples set forth by this court in Cort v. Ash, 422

U.S. 66 (1975), to determine legislative intent con-

cerning the issue of waiver of sovereign immunity,

and the court of appeals’ affirmance of that dismissal,

were in error and in direct conflict with a decision

of the Third Circuit in Patentas v. United States, 687

F.2d 707 (3rd Cir. 1982).

I. The Case Presents Important International Comity

Issues Which Should Be Decided By This Court

The foreign air carriers have urged throughout this

proceeding that a private cause of action exists in

their favor under the relevant treaty and bilateral

agreement provisions when a signatory nation breaches

its international obligations. The governments of Bel-

gium, Germany, Spain, Switzerland, France, The

Netherlands and Italy all viewed this matter as im-

portant enough to compel them to present their views

to the court of appeals either as amici curiae or in

notes verbale communicated officially to the U.S. De-

partment of State. All of the governments that have

expressed a view have agreed with the foreign air

carriers’ contention that causes of action such as this

were intended to be created under the international

aviation regulatory regimen, were created, and bind

the United States when it violates the law to the same

extent that all other signatories would be bound when

and if they violate the law.’

? To this list can be added the United Kingdom as well, since it

took the same position in an amicus curiae brief filed in Balair I.

See Brief of the United Kingdom at page 12, D.C. Cir. Docket

Nos. 79-1662 and 79-1737. The U.S. State Department has officially

7

The trial court’s refusal on jurisdictional grounds

to hear and decide the issues raised by the foreign

air carriers and the respective European governments

was error that requires this Court to assert jurisdic-

tion.’ If the review sought by this petition is not

granted, a direct international conflict as to the cor-

rect interpretations to be given to the relevant treaty

and bilateral agreement provisions will result since

the interpretation of the United States government

and the courts below is at odds with all other inter-

pretations that have been expressed in this proceeding

by other signatory nations. Such an international con-

flict should not be allowed to occur. As this Court has

held, (1) a treaty ‘‘contemplates reciprocity with re-

spect to... rights and privileges... .’’ Santovincenzo

v. Egan, 284 U.S. 30, 36 (1931), and (2) “the meaning

given [to treaties] . .. by the departments of gov-

ernment charged with their negotiation and enforce-

ment is [to be] given great weight .. .’’ Kolovrat

v. Oregon, 366 U.S. 187, 194 (1961). The lower courts’

remained silent during this proceeding and has not indicated its

position concerning the intended meaning of the international

agreements at issue.

3’ The lower court’s dismissal pursuant to Federal Rule of Civil

Procedure 12(b)(1) was clearly error. The district court had

statutory authority to hear and to decide the allegations raised

in the foreign air carriers’ complaint pursuant to 28 U.S.C. §§ 1331

and 1350. This Court has repeatedly held that where there is such

statutory authority and ‘‘the right . . . to recover under [a] com-

plaint will be sustained if the Constitution and laws of the United

States are given one construction and will be defeated if they are

given another . . . the district court has jurisdiction.’’ Bell v.

Hood, 327 U.S. 678, 685 (1946). See also Wheeldin v. Wheeler,

373 U.S. 647, 649 (1963); Bock v. Perkins, 139 U.S. 628, 630

(1891).

8

disposition of the foreign air carriers’ complaint ac-

corded no weight to the views of other signatory na-

tions and did so in a manner that defeats any goal

of reciprocity with respect to rights and privileges.

This judicial abstention in the light of the inter-

national implications raised by the instant case pro-

vides ample cause for this Court to issue the requested

writ.

II. The Issue of Whether Cort vy. Ash Applies to Allegations

Concerning Waivers of Sovereign Immunity Should Be

Decided By This Court

The foreign air carriers urged below that judicial

analysis under the test articulated by this Court in

Cort v. Ash, supra, and its progeny would show that

the U.S. government waived any sovereign immunity

defense when it agreed as a signatory nation to be

bound by the terms of the relevant treaty and inter-

national agreement provisions.* The lower court’s fail-

ure to employ a Cort v. Ash analysis requires review

by this Court since it diverges 180 degrees from the

only other circuit court precedent on the issue of sov-

*The first three prongs of the Cort v. Ash test are directly

relevant in the treaty context:

First, is the plaintiff ‘‘one of the class for whose especial

benefit the statute was enacted,’’ . . . —that is, does the statute

create a federal right in favor of the plaintiff? Second, is

there any indication of legislative intent, explicit or implicit,

either to create such a remedy or to deny one? .. . Third,

is it consistent with the underlying purpose of the legislative

scheme to imply such a remedy for the plaintiff?

422 U.S. at 78. The fourth prong of Cort v. Ash, concerning

whether the cause of action is in an area traditionally relegated

to the states of the union, is of necessity satisfied in the treaty

context.

9

ereign immunity, and since it ignores the importance

of the issues underlying the theory of implied waiver

of sovereign immunity in the international context.

This Court has held that the principles set forth in

Cort v. Ash “‘present the relevant inquiries to pursue

in answering the recurring question of implied causes

of action.’’ California v. Sterra Club, 451 U.S. 287,

293 (1981). See also Chrysler Corp. v. Brown, 441

U.S. 281, 316-17 (1979). The lower courts’ failure to

apply Cort v. Ash to questions concerning waiver of

sovereign immunity was not only out of step with the

teachings of this Court, but conflicted directly with

the only other circuit court decision known to the for-

eign air carriers that has ever addressed the applica-

bility of Cort v. Ash principles to the sovereign im-

munity issue. In that case, Patentas v. United States,

687 F.2d 707 (3rd Cir. 1982), the Third Circuit used

a Cort v. Ash analysis to determine whether there was

an implied waiver of sovereign immunity under the

Ports and Waterways Safety Act of 1972, 33 U.S.C.

§§ 1221-1232. The courts’ refusal to follow the Patentas

holding here results in a conflict in circuits on the

issue of the applicability of the Cort v. Ash criteria

to the issue of legislative intent regarding sovereign

immunity.

In point of fact, the present case presents an even

more compelling basis for a Cort v. Ash analysis than

did Patentas. Patentas raised issues of sovereign im-

munity waivers in the purely domestic context. By

contrast, this ease involves the implied waiver of sov-

eign immunity in an international context, where dif-

ferent governments have agreed, each under its own

jurisprudential system, to be bound by the same inter-

10

national aviation rules. In that context the argument

is stronger that waiver can be found even in the face

of textual silence. This is, egain, evidenced by the fact

that every other nation that has been heard on the

subject has indicated that the right to recover as-

serted by the foreign air carriers was intended to exist

when the agreements at issue were entered into, irre-

spective of the fact that such a right was not explicitly

provided for. Given this fact it is particularly egre-

gious for this country, after violating its international

obligations, to now claim that idiosyneracies of its own

jurisprudence not only bar the assertion of such a

right, but jurisdictionally bar its courts from even

analyzing whether the right could have been intended

to exist.

oe vind tlre bat nc 5 tlh in OG oe

11

CONCLUSION

The foreign air carriers submit that for all of the

foregoing reasons a writ of certiorari should issue.

Respectfully submitted,

LAURENCE A. SHORT

AMY LOESERMAN KLEIN*

Date C. ANDREWS

SHort, Kier & Karas, P.C.

Suite 303

1101 Thirtieth Street, N.W.

Washington, D.C. 20007

(202) 342-3000

Attorneys for Petitioners

Balair, Ltd.

Deutsche Lufthansa

Aktiengesellshaft

Iberia, Linea Aereas de Espana

Koninklijke Luchtvaart

Maatschapmj N.V. (KIM Royal

Dutch Airlines)

Scandinavia Atrlines System

Swissair, Swiss Atr Transport

Company, Ltd. and

Union de Transports Aeriens

* Counsel of Record

APPENDIX

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1984

No. 84-5285

Civil Action No. 83-03093

Baar Ltp., a Foreign Corporation, et al., Appellants

v.

UNITED STATES OF AMERICA, ef al.

[United States Court of Appeals For the District of

Columbia Cireuit FILED APR 30 1985

George A. Fisher Clerk]

Appeal from the United States District Court

for the District of Columbia

Before WricHt, Circuit Judge, MarKey,* Chief

Judge, United States Court of Appeals for the

Federal Circuit, and ScaLia, Circuit Judge.

* Sitting by designation pursuant to 28 U.S.C. § 291(a) (1982).

2a

JUDGMENT

This cause came on to be heard on the record on

appeal from the United States District Court for the

District of Columbia and was briefed and argued by

counsel. The court has fully considered the issues pre-

sented; they occasion no need for an opinion. See D.C.

Cir. R. 13(¢).

This court is in agreement with the result reached

by the District Court, generally for the reasons stated

in its Memorandum and Order filed March 1, 1984,

reproduced in Joint Appendix at 29-35.

On consideration of the foregoing, it is ORDERED and

ADJUDGED by this court that the judement of the

District Court from which this appeu. was taken is

hereby affirmed.

It is FuRTHER ORDERED by this court, sua sponte,

that the Clerk shall withhold issuance of the mandate

herein until seven days after disposition of any timely

petition for rehearing. See D.C. Cir. R. 14, as amended

on November 30, 1981 and June 15, 1982. This instruc-

tion to the Clerk is without prejudice to the right

of any party at any time to move for expedited issu-

ance of the mandate for good cause shown.

Per Curiam

For the Court

/s/ Grorce A. FISHER

George A. Fisher

Clerk

3a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 83-3093

Bauatr, Lrp., e¢ al.,

Plaintiffs,

v.

THE UNITED STATES OF AMERICA, e¢ al.,

Defendants.

[Filed Mar 11984 Clerk, U.S. District Court

District of Columbia]

MEMORANDUM AND ORDER

The plaintiffs in this action are ten European air

earriers who operate foreign-registered MeDonnell

Douglas DC-10 aircraft between airports in their re-

spective countries and airports located in the United

States. Defendants are the United States of America

and J. Lynn Helms, Administrator of the Federal

Aviation Administration (FAA).

The genesis of this action is the issuance by the FAA

on June 6, 1979 of “Special Federal Aviation Regu-

lation No. 40’? (SFAR 40). Issued in the aftermath

of the crash on May 25, 1979 of a United States reg-

istered DC-10 airplane upon take off from Chicago’s

O’Hare International Airport, SFAR 40 prohibited

the operation within the airspace of the United States

of all Model DC-10 airplanes, including those regis-.

tered by foreign aviation authorities. SFAR 40 re-

4a

mained in effect until its rescission by the FAA on

July 13, 1979.

Prior to its rescission, the legality of SFAR 40

was challenged by several of the plaintiffs in suits

brought before the Court of Appeals of the District

of Columbia Circuit. These plaintiffs contended that

in issuing SFAR 40 the Administrator of the FAA

had violated the provisions of several international

agreements (Agreements) to which their respective

countries and the United States were parties as well

as section 1102 of the Federal Aviation Act of 1958,

49 U.S.C. § 1502 (1976). The Court of Appeals ruled

in favor of the plaintiffs and set aside the action of

the FAA.’ British Caledonian Airways Ltd. v. Bond,

665 F.2d 1153 (D.C. Cir. 1981).

The present action was brought by the plaintiffs

solely to recover damages sustained as a result of the

issuance of SFAR 40. Plaintiffs allege that SFAR 40

barred their DC-10 aircraft from transporting pas-

sengers and property into and out of the United States

causing them damages in excess of $100,000,000. Plain-

tiffs base the jurisdiction of the Court upon 28 U.S.C.

§ 1331 (Supp. V 1981) and 28 U.S.C. § 1350 (1976).’

The order of the court setting aside the action of the FAA

came after the rescission of SFAR 40 by the FAA. The Court

rejected the government’s argument that the suit had become moot

stating that the plaintiffs had sought judicial review while SFAR

40 was still in effect and that there was a reasonable expectation

that the plaintiffs would be subject te the same action again.

British Caledonian Airways, 665 F.2d at 1158.

2 Plaintiffs expressly disclaim reliance on either 28 U.S.C. § 1346

(a)(2) (Supp. V 1981), the Tucker Act, or 28 U.S.C. § 1346(b)

5a

Before the Court is the motion of defendants to

dismiss plaintiffs’ complaint for lack of subject matter

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).

Defendants assert that money damages cannot be

awarded in a suit against the United States absent a

waiver of sovereign immunity. Defendants contend

that neither the jurisdictional provisions relied upon

by the plaintiffs nor the Agreements between the

United States and the countries wherein the plaintiffs

are located provide any basis for an award of money

damages against the United States. Defendants claim

this result is unaffected by the inclusion of the Ad-

ministrator of the FAA as a defendant inasmuch as

a suit for damages against the Administrator is, in

effect, a suit against the United States. Plaintiffs op-

pose the motion.

For the reasons given below, defendants’ motion to

dismiss plaintiffs’ complaint is granted.

We begin our analysis with a few general principles

governing the doctrine of sovereign immunity. As the

Supreme Court stated in United States v. Sherwood,

312 U.S. 584, 586 (1941), as a sovereign the United

States ‘‘is immune from suit save as it consents to

be sued ... and the terms of its consent to be sued

in any court define that court’s jurisdiction to enter-

tain the suit.” Reaffirming that principle the Court

in United States v. Testan, 424 U.S. 392, 399 (1976),

noted that ‘‘except as Congress has consented to a

cause of action against the United States, ‘there is no

(1976), the Federal Terts Claim Act, as bases for this Court’s

jurisdiction. See, Plaintiffs’ Response In Opposition To Defend-

ants’ Motion To Dismiss at 2-3.

6a

jurisdiction ... to entertain suits against the United

States.’’’ (Quoting United States v. Sherwood, 312

U.S. at 587-88 (1941).)

The Supreme Court has indicated that ‘‘fa] waiver

of sovereign immunity ‘cannot be implied but must be

unequivocally expressed,’ ’’ United States v. Mitchell,

445 U.S. 535, 538 (1980), quoting United States v.

King, 335 U.S. 1, 4 (1969), and that the ‘‘limitations

and conditions upon which the Government consents

to be sued must be strictly observed “and exceptions

thereto are not to be implied.’’ Soriano v. United

States, 352 U.S. 270, 276 (1957). Thus, unless an

express waiver of sovereign immunity to a suit for

damages can be found in either 28 U.S.C. § 1331 or

1350 or the Agreements alluded to above, this Court

does not have jurisdiction to entertain plaintiffs’ suit.

The first jurisdictional provision relied upon by

plaintiffs, 28 U.S.C. § 1331 (Supp. V 1981), provides

district courts with jurisdiction over ‘‘all civil actions

arising under the Constitution, laws, or treaties of the

United States.” On its face section 1331 does not em-

power district courts to hear civil actions brought

against the United States. Indeed, courts have con-

sistently held that section 1331 does not waive the

federal government’s sovereign immunity to suit. See,

e.g., Beale v. Blount, 461 F.2d 1133, 1138 (5th Cir.

1972); Kester v. Campbell, 652 F.2d 13, 15 (9th Cir.

1981), cert. dented, 454 U.S. 1146 (1982) ; B.K. Instru-

ment, Inc. v. United States, 715 F.2d 713, 724 (2d Cir.

1983). Unless the plaintiffs can point to another pro-

vision specifically waiving the government’s sovereign

immunity to suit for money damages, the Court does

7a

not have jurisdiction under section 1331 to hear plain-

tiffs’ claims.°

The second jurisdictional provision cited by plain-

tiffs is 28 U.S.C. $1350 (1976). It states that the

district courts will have ‘“‘original jurisdiction of any

civil action by an alien for a tort only, committed in

violation of the law of nations or a treaty of the

United States.’’ Like section 1331, this section does

not contain an explicit waiver of the government’s

sovereign immunity. The issue of whether section 1350

permits district courts to hear suits for money damages

against the United States based on alleged treaty vio-

lations was addressed by the Court of Appeals of the

District of Columbia Cireuit in Canadian Transport

Co. v. United States, 663 F.2d 1081 (D.C. Cir. 1980).

We find that case controlling.

In Canadian Transport the plaintiffs alleged, inter

alia, that the Coast Guard’s refusal to permit the

entry of their ship into the port of Norfolk, Virginia

violated treaty obligations of the United States. The

plaintiffs argued that a suit for money damages

against the United States was available under sec-

3 An example of a provision which may be used in conjunction

with section 1331 to confer jurisdiction on district courts of suits

against the United States is 5 U.S.C. § 702 (1982). That section,

which is part of the Administrative Procedures Act, contains an

explicit waiver of the government’s immunity from suits ‘‘seeking

relief other than money damages and stating a claim that an agency

or an officer or employee thereof acted or failed to act in an of-

ficial capacity or under color of legal authority ... .’’ Since

plaintiffs’ suit seeks money damages section 702 is unavailing.

Plaintiffs have not identified any provision which waives the gov-

ernment’s immunity from suits seeking money damages.

8a

tion 1350. After reviewing section 1350, the Court of

Appeals phrased the issue before it as follows:

Because nothing in the language of this statute

indicates that the United States has waived its

sovereign immunity from tort suits for treaty

violations, the District Court’s decision dismissing

this cause of action must be affirmed unless ap-

pellants can show another basis for concluding

that sovereign immunity has been waived.

Id. at 1092.

The plaintiffs in Canadian Transport argued that

the treaty itself was a waiver of sovereign immunity.

Plaintiffs brought to the attention of the court general

language in the treaty which granted their ships and

cargo secure passage into ports and rivers in the

United States. The court rejected plaintiffs’ argu-

ments stating:

Nothing in the quoted language indicates that

the United States has agreed to be held liable in

damages if the treaty is violated. In the absence

of specific language in the treaty waiving sov-

ereign immunity of the United States, the treaty

must be interpreted in accord with the rule that

treaty violations are normally to be redressed out-

side the courtroom.

Id.

The holding of Canadian Transport impels us to

conclude that Section 1350 does not empower plaintiffs

to maintain their suit in this Court for money dam-

ages against the United States. Plaintiffs do not con-

tend that the Agreements contain specific language

9a

waiving the government’s sovereign immunity from

suit for violations of their provisions; rather they

assert that the Court must scrutinize the international

aviation regulatory scheme to determine whether a

eause of action for damages is required by implication.

We do not accept plaintiffs’ assertion. We are not

at liberty to infer from the Agreements an intention

on the part of the United States to subject itself to

suit for money damages based on a violation of their

provisions. We reiterate that, absent an unequivocal

and express waiver of sovereign immunity, a suit for

money damages against the United States may not be

maintained in this Court. Since plaintiffs have not

alerted the Court to “‘specific language in the Agree-

ments waiving the sovereign immunity of the United

States,’’ we do not have jurisdiction of plaintiffs’ suit.

Canadian Transport Co., 663 F.2d at 1092 (emphasis

added).*

* Plaintiffs place great reliance on American I'l Group, Inc.

v. Islamic Republic of Iran, 493 F. Supp. 522 (D.D.C. 1980). In

that case the Court found that Iran had waived its sovereign

immunity by virtue of a provision in a treaty between it and

the United States. That provision stated:

No enterprise of either High Contracting Party .. . shall

... Claim or enjoy, either for itself or its property, immunity

therein from taxation, suit, execution of judgment or other

liability to which privately owned and controlled enterprises

are subject therein.

Id. at 523, quoting Article XI, paragraph 4 of the Treaty of

Amity, Economie Relations, and Consular Rights Between the

United States of America and Tran. Despite its reliance on Amert-

can Int’l Group, plaintiffs have not brought forth any provision

in the Agreements resembling the above-quoted provision. Without

10a

Accordingly, it is this lst day of March, 1984,

ORDERED that defendants’ motion to dismiss plain-

tiffs’ complaint be, and the same is hereby, GRANTED.

/s/ Howarp F.. Corcoran

Judge

similarly explicit language in the Agreements waiving the gov-

ernment’s immunity to suit, American Int’l Group does not sup-

port plaintiffs’ position.