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Published online by Cambridge University Press: 20 March 2017
[Reproduced from the text provided by the U.S. District Court for the District of Columbias
[The U.S Foreign Sovereign Immunities Act of 1976 appears at 15 I.L.M. 1388 (1976). The House of Representatives Report No. 94-1487 on “Jurisdiction of United States Courts in Suits against Foreign States” appears at 15 I.L.M. 1398 (1976).]
1/ Just one week prior to the institution of this civil proceeding, a criminal action involving the deaths of former Chilean ambassador Letelier and Mrs. Moffitt was commenced in the United States District Court for the District of Columbia with the entry of an indictment naming all the individual defendants in this suit, except Michael Vernon Townley. United States v. Sepulveda, Crim. No. 78-0367 (D.D.C. filed Aug. 1, 1978). Of the eight individuals indicted, only Alvin Ross Diaz, Ignacio (Corvt.)
2/ For a plaintiff to be able to secure a default judgment under the Foreign Sovereign Immunities Act, he must establish his claim or right to relief by evidence satisfactory to the court, 28 U.S.C. § 1608(e)(1976), the same requirement applicable to default judgments against the United States under Federal Rule of Civil Procedure 55(e). H.R. Rep. No. 94-1487, 94th Cong., 2d Sess. 25-26 (1976), reprinted in [1976] U.S. Code Cong. & Ad. News 6604; S. Rep. No. 94-1310, 94th Cong., 2d Sess. 25 (1976).
3/ As constitutional authority for the enactment of the Foreign Sovereign Immunities Act, Congress relied on its power to prescribe the jurisdiction of the federal courts, U.S. Const, art. I, $ 8, cl. 9; id. art. Ill, § 1, to define offenses against the “Law of Nations,” id. art. I, § 8, cl. 10, to regulate commerce among foreign nations, id. § 8, cl. 3, and “to make all laws which shall be necessary and proper to carry into Execution … all … Powers vested … in the Government of the United States,” including the judicial power of the United States over controversies between “a State, or the Citizens thereof and foreign States,” id. § 8, cl. 18; id. art. Ill, § 2, cl. 1. H.R. Rep. No. 94-1487, supra at 12; S. Rep. No. 94-1310, supra at 12. The Republic of Chile has not challenged either the authority of Congress to pass legislation governing grants of sovereign immunity or its authority to enact any of the specific provisions of the Foreign Sovereign Immunities Act.
4/ In addressing the queation of the procedure for raising the defense of sovereign- immunity, both the House and Senate committee reports concerning the- Foreign Sovereign Immunities Act of 1976 state that “sovereign immunity is an affirmative defense which must be specially pleaded.” H.R. Rep. No. 94-1487, supra at 17; S.Rep. No. 94-1310, supra at 17. In this instance the Republic of Chile, while not having entered a formal appearance through counsel or having filed a responsive pleading through an accredited representative, has had the Department of State transmit to the Court a diplomatic note from the Ministry of Foreign Affairs and a note from the Embassy of Chile in which the issues of the Court's jurisdiction and Chile's sovereign immunity have been discussed. The extent to which the affirmative defense of sovereign immunity can be raised by way of such a procedure rather than by a formal appearance or the filing of a pleading is one that the Court need not answer definitively, see generally, however, Ex parte Muir, 254 U.S. 522, 532-33 (1921); Puente v. Spanish Nat. State, 116 F.2cl 43, 44 (2d Cir. 1940), cert, denied, 314 U.S. 627 (1941); 2A Moore's Federal Practice 118.28, at 8-270 to 275 (2d ed. 1979) (affirmative defense can be raised by motion to dismiss or motion for summary judgment); Restatement (Second) of Foreign Relations Law of the United States §71, Comment b (1965), for even assuming it has been pleaded properly, the Court still has subject matter jurisdiction for the reasons discussed infra.
5/ The judicial attempt at definition that is perhaps most widely recognized is .that of the United States Court of Appeals for the Second Circuit in Victory Transport, Inc. v. Comisaria General de Abastecimientos y Transportes, 336 F.2d 354, 360 (2d Cir. 1964), cert, denied, 381 U.S. 934 (19.651, in which the court classified public acts as those involving (1) internal administration, such asexpulsion of an alien; (2) legislation, such as nationalization; (.3} the armed forces; (.4) diplomatic activity; and (5) public loans.
For more detailed discussions of the principle of sovereign immunity as it existed priorto the Foreign Sovereign Immunities Act, see generally Victory Transport, Inc. v. Comisaria General de Abastecimientos y Transportes, supra, 336 F.2d at 357-60; H.R. Rep. No. 94-1487, supra at 8-9; S. Rep. No. 94-13i0, supra at 9-10; Note, Sovereign Immunity in the Supreme Court: Using the Certiorari Process to Avoid Decisionmaking, 16 Va. J. Int'l L. 903, 904-09, 920- 24 (1976). See also Restatement (Second) of Foreign Relations Law of the United States, supra, §§ 63-72.
6/ The Republic of Chile has cited several cases decided since the passage of the Foreign Sovereign Immunities Act that it contends establish foreign states under the Act are to be granted immunity for any tortious act committed by a sovereign entity while acting in its public capacity. The Court finds these cases inapposite.
In Casey v. National Oil Corp., 453 F. Supp. 1097, 1102 (S.D.N.Y. 1978), aff'don other grounds, 592 F.2d 673 (2d Cir. 1979)(per curiam while indicating in what could be classified as dictum that the alleged acts of a foreign state to induce a breach of contract were sovereign and therefore not within the exceptions to immunity in the Act, the court found that at best the supposed actions of the foreign state would state a claim for tortious interference with contract rights, which was exempted specifically by section 1605(a) (5)(B). Likewise in Yessenin-Volpin v. Novosti Press Agency, 443 F. Supp. 849, 855 (S.D.N.Y. 1978), the court found it had no jurisdiction to entertain a claim of libel as a noncommercial tort under section 1605(a)(5) because such a cause of action was exempted by the terms of subsection (B). Thus, in each of these instances, the tort action in question was barred not by classification of the actions in question as public or private, but rather because Congress had exempted them from the broad category of noncommercial torts for which a foreign state cannot claim immunity.
Reference is also made by the Chilean Republic to Gittler v. German Information Center, 95 Misc. 2d 788, 408 N.Y.S.2d 600 (Sup. Ct. 1978). In that case, suit was brought to recover unpaid compensation and benefits allegedly due an American citizen for his work on documentary films commissioned by an entity of the West German government and designed to foster cultural relations between Germany and the United States. Relying on the decision of the United States Court of Appeals for the Second Circuit in Heaney v. Government of Spain, 445 F.2d 501 (2d Cir. 1971), in which the court deterrtined that a government's contract for public relations work lesigned to discredit another nation was a public or sovereign net entitling it to immunity from any suit for breach of that :ontract, he New York Supreme Court in Gittler found the agreement in question to be one involving sovereign- action of West Germany, thereby precluding any suit to enforce its terms. 408 J.Y.S.2d at 601. Although it is unclear whether the court in littler made its finding of immunity pursuant to the Foreign Sovereign Immunities Act, that Act having become effective after:he date of the alleged breach of contract and after suit was riled, nonetheless to the extent that the case can be so read, zhis Court declines to follow its analysis of the immunity issue. It is made evident both in the Act and in its legislative listory that any decision to grant immunity to a foreign state Ls dependent on the provisions of the Act and thus the case Law on the subject of sovereign immunity as it analyzed the listinctions between commercial or private acts and a state's mblic actions is persuasive only to the extent those interpretions can be deemed to be in conformity with the exceptions to Immunity as set forth in the Act. Compare H.R. Rep. No. 94-1487, supra at 16 (contract of foreign government to buy provisions or iquipment for armed forces or to construct government building Ls commercial activity under Act) and S. Rep. No. 94-1310, supra it 15-16 (same) with Heaney v. Government of Spain, supra, 445 ?,.2d at 504 (dictum) (foreign government's contract to purchase Juliets or erect fortifications for array is sovereign rather ;han commercial or private act) and Victory Transport, Inc. v. tomisaria General de Abastecimientos y Transportes, supra, 336 ed at 360 (dictum) (purchase of shoes or bullets for army,irection of fortifications, or rental of house for embassy not private acts). See also Brc ibent v. Organization of American States, No. 78-1465, slip op. at 13-17 (D.C. Cir. Jan. 8, 1980).