Olsen by Sheldon v. Government of Mexico

• Decision Date: 16 July 1984
• Docket Number: Nos. 83-5626,83-5629,s. 83-5626
• Citation: 729 F.2d 641
• Parties: Erin Rayne OLSEN, a Minor by Patty SHELDON, Maternal Grandmother and Guardian ad Litem, Plaintiffs-Appellants, v. GOVERNMENT OF MEXICO, Defendant-Appellee. Ursula Baines SANCHEZ, By and Through her Guardians ad Litem Joseph J. CERNIE and Sally Z. Cernie, Plaintiffs-Appellants, v. The REPUBLIC OF MEXICO, a Foreign Government, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 641

729 F.2d 641

Erin Rayne OLSEN, a Minor by Patty SHELDON, Maternal

Grandmother and Guardian ad Litem, Plaintiffs-Appellants, v. GOVERNMENT OF MEXICO, Defendant-Appellee.

Ursula Baines SANCHEZ, By and Through her Guardians ad Litem Joseph J. CERNIE and Sally Z. Cernie, Plaintiffs-Appellants, v. The REPUBLIC OF MEXICO, a Foreign Government, Defendant-Appellee.

Nos. 83-5626, 83-5629.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 6, 1983.

Decided March 30, 1984.

As amended July 16, 1984.

Donald S. White, Bonnie Pastor, Maupin, Cutler, Teplinsky & White, Los Angeles, Cal., for Olsen.

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

Christopher J. Schatz, Ramon Castro, Jack Sleeth, Sheela, Lightner & Castro, San Diego, Cal., for defendant-appellee.

Appeal from the United States District Court for the Southern District of California.

Before FLETCHER and NELSON, Circuit Judges, and HARDY, ^* District Judge.

NELSON, Circuit Judge:

Erin Olsen and Ursula Sanchez appeal from the dismissal of their wrongful death claims for lack of personal jurisdiction. The district court held that general contacts between the defendant and the forum state provided no basis for jurisdiction. Additionally, the court concluded that personal jurisdiction 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 Sovereign Immunities Act of 1976, Pub.L. No. 94-583, 90 Stat. 2891-98, 28 U.S.C. Secs. 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 domiciled in California, are minor children claiming the wrongful death of their parents. As prisoners of the Mexican government, 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. Following 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 Letter also allows for coordinated navigational assistance.

Because its radar and instrument landing navigational system 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 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 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 altitude. 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 personal jurisdiction. The FSIA confers subject matter jurisdiction 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. Sec. 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. Sec. 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.

I. Subject Matter Jurisdiction

As section 1330(a) indicates, sovereign immunity is not merely a defense under the FSIA. It absence is a jurisdictional requirement. See Verlinden, B.V. v. Central Bank of Nigeria, 103 S.Ct. 1962, 1971 n. 20, 76 L.Ed.2d 81 (1983) ("Verlinden"). We begin our inquiry, therefore, by considering whether Mexico is entitle to immunity.

The FSIA grants blanket immunity to foreign states, 28 U.S.C. Sec. 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 "noncommercial torts" exception, section 1605(a)(5), which provides:

(a) A foreign state shall not be immune from the jurisdiction 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 damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or 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. Sec. 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 Congress, 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 requires 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 qestionis). McKell 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)(5), the noncommercial torts exception to immunity. According to Mexico's interpretation, foreign states would be immune from jurisdiction for those torts which otherwise come within the bounds of section 1065(a)(5) but which are public in nature.

Section 1605(a)(5) cannot be read, however, other than in conjunction with section 1605(a)(5)(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. Sec. 1605(a)(5)(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 governmental 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. ¹ 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 requirements 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, 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...