In Re: B-727 200

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-11018

IN RE B-727 AIRCRAFT SERIAL NO. 21010, Etc.; ET AL.,

Plaintiffs,

HASHEMITE KINGDOM OF JORDAN, ex rel. by and through His
Excellency Dr. Marwan Muasher, Ambassador and Chief of Mission to
the United States in his Official Capacity,

Plaintiff-Appellant,

versus

LAYALE ENTERPRISES, S.A.,

Appellee.

Appeal from the United States District Court
for the Northern District of Texas

October 31, 2001
Before POLITZ and BARKSDALE, Circuit Judges, and FALLON, District

Judge1.

RHESA HAWKINS BARKSDALE, Circuit Judge:

The primary issue at hand is whether an in rem action brought

by an ambassador in a representative capacity constitutes an action

“against” that ambassador, so that a federal district court has

subject matter jurisdiction pursuant to 28 U.S.C. § 1351 (“original

jurisdiction, exclusive of the courts of the States, of all civil

1
District Judge of the Eastern District of Louisiana, sitting
by designation.
actions and proceedings against”, inter alia, ambassadors). For

lack of such jurisdiction, the district court dismissed this in rem

action, seeking declaratory and injunctive relief and brought by

the Hashemite Kingdom of Jordan (Jordan), through its Ambassador.

Jordan claims subject matter jurisdiction pursuant to § 1351, as

well as on several other grounds. AFFIRMED.

I.

In 1999, through its Ambassador, Jordan instituted this action

with a “Complaint for Action In Rem”, seeking declaratory and

injunctive relief. The complaint stated: a Boeing 727-200

Aircraft, Serial No. 21010 (Aircraft), that had been sequestered by

the Sheriff of Tarrant County, Texas, was subject to Jordan’s

immunity as a foreign sovereign; and any sequestration violated

that sovereignty and must be dissolved.

A.

The complaint alleges the following: In October 1992, Rifaat

Al Assad of Syria, then owner of the Aircraft, had it transported

to Jordan. Al Assad is the father of the president of Layale

Enterprises, S.A., a Panamanian company. The Aircraft was

registered in the Cayman Islands. While the Aircraft remained in

Jordan, Alia/The Royal Jordanian Airlines Corporation (Royal

Jordanian), an entity wholly owned by Jordan, had several contacts

with Layale’s representatives concerning necessary repairs to the

2
Aircraft. Royal Jordanian also issued charges for fees and

estimates for necessary repair and maintenance work.

After the Aircraft had been in Amman for two years, Jordanian

officials estimated it would cost in excess of $2 million for

service, repairs, accumulated rental charges, and other expenses to

satisfy minimum airworthiness requirements. Soon after this

estimate was made, Al Assad gifted the Aircraft to Jordan (around

mid-1994).

Jordan ultimately conveyed the Aircraft to HRH Prince Talal

bin Mohammed and HRH Princess Ghida Talal (the alleged owners).

The alleged owners are members of Jordan’s Royal Family and also

are, and were at all relevant times, accredited diplomats to the

United States. They planned to use the Aircraft for travel

associated with their official duties as diplomats and members of

the Royal Family.

In mid-1996, Jordan’s Civil Aviation Authority issued to the

alleged owners a temporary registration for the Aircraft. (Layale

asserts that the Aircraft continues to be registered in the Cayman

Islands and has never been deregistered.)

Several months earlier, in March 1996, the alleged owners

entered into an “Operating Agreement” with Arab Wings Co. Amman.

Arab Wings is a wholly owned subsidiary of Royal Jordanian.

Therefore, Jordan owns Arab Wings through Royal Jordanian. The

contract was renewed in April 1997. (The renewed contract is in

the record; it expired a year later, in April 1998.)

3
 In February 1996 (prior to entering into the March 1996

Operating Agreement with Arab Wings), the alleged owners had

entered into a lease agreement with HMS Aviation concerning the

Aircraft. (HMS Aviation, a Jordanian company, has offices in

Jordan and England.)

Under the terms of that lease agreement, the alleged owners

agreed to provide the Aircraft to HMS Aviation, and HMS Aviation in

turn agreed to undertake certain enhancements and repairs on behalf

of the alleged owners and operator. Pursuant to its lease, and in

fulfillment of its agreement to renovate and refurbish the

Aircraft, HMS Aviation brought the Aircraft to the United States

for servicing at Meacham Field, Fort Worth, Texas.

In April 1997, while the Aircraft was located at Meachem

Field, Layale initiated litigation in Texas state court in Tarrant

County. Layale claimed ownership of the Aircraft and sought a

judgment for title and possession. Jordan was not a named

defendant. Layale obtained an ex parte writ of sequestration for

the Aircraft on the basis of a $5,000 bond. The writ remains in

effect.

HMS Aviation, the lessee, made a special appearance in the

state court proceedings solely to contest personal jurisdiction.

In May 1997, HMS Aviation removed the action to federal court based

on claimed federal question jurisdiction pursuant to 28 U.S.C. §

1331 (“The district courts shall have original jurisdiction of all

4
civil actions arising under the Constitution, laws, or treaties of

the United States.”). In this regard, HMS Aviation asserted that

Layale’s complaint raised substantial federal questions relating to

the conduct of foreign relations. Layale’s motion to remand was

granted that July. Layale Enters., S.A. v. HMS Aviation, No. 4:97-

CV-390-A (N.D. Tex. 21 July 1997) (unpublished).

Almost a year later, in April 1998, the state court ruled:

HMS Aviation was not subject to personal jurisdiction; but the

court had in rem jurisdiction over the Aircraft. Therefore, the

state court dismissed HMS Aviation but retained in rem

jurisdiction. HMS Aviation filed an interlocutory appeal,

contesting such jurisdiction.

That appeal was pending when, in August 1998, Jordan

intervened to assert foreign sovereign immunity as an absolute

jurisdictional bar to any judicial proceeding in the United States

regarding the Aircraft operated by Jordan’s wholly-owned

instrumentality, Arab Wings, and owned by members of the Royal

Family. Pursuant to 28 U.S.C. § 1441(d), Jordan immediately

removed the case to federal court. That same day, it moved to

dismiss, pursuant to Federal Rule of Civil Procedure 12, asserting:

Layale’s claims for title and possession were barred by sovereign

immunity; and dismissal was mandated by the doctrines of Act of

State and forum non conveniens. The motion was supported by: a

declaration by Jordan’s Ambassador to the United States; copies of

5
the Aircraft’s Jordanian registration; and the agreements between

the alleged owners, Arab Wings, and HMS Aviation, regarding the

ownership, operation, and lease of the Aircraft.

In early 1999, the district court sua sponte remanded the case

to state court, pursuant to 28 U.S.C. § 1447(c), ruling it lacked

jurisdiction under 28 U.S.C. § 1330 (original jurisdiction for

certain actions against foreign states; discussed infra) because:

Layale’s petition did not name Jordan as a party; and, therefore,

the action was not “against” a sovereign. Jordan’s Rule 59(e)

motion was denied.

Jordan sought mandamus from our court and appealed. Mandamus

was denied. In Re Hashemite Kingdom of Jordan, No. 99-10581 (5th

Cir. 8 June 1999)(unpublished). And, in December 1999, pursuant to

28 U.S.C. § 1447(d), our court dismissed the appeal for lack of

appellate jurisdiction. Layale Enters., S.A. v. HMS Aviation, No.

99-10632 (5th Cir. 3 Dec. 1999) (unpublished).

B.

Shortly after the dismissal of its appeal, Jordan filed this

action, making the above described allegations and giving notice to

Layale as a potentially interested party. Layale responded by

moving to dismiss for lack of subject matter jurisdiction and for

failure to state a claim; and, in the alternative, Layale moved for

abstention. It also moved to strike the affidavit of Jordan’s

Ambassador filed in support of the complaint.

6
 In January 2000, Jordan entered a special appearance in the

long pending state court action (filed in April 1997). It did so

in order to challenge subject matter jurisdiction. The state court

stayed that proceeding pending resolution of the jurisdictional

issues in this federal action.

That August, the federal district court granted Layale’s

motion to dismiss this action for lack of subject matter

jurisdiction. It concluded: neither the Declaratory Judgment Act,

the Foreign Sovereign Immunities Act (FSIA), nor 28 U.S.C. § 1251,

§ 1330, or § 1351 provided federal subject matter jurisdiction.

II.

A district court dismissal for lack of subject matter

jurisdiction is reviewed de novo. E.g., John G. & Marie Stella

Kenedy Mem'l Found. v. Mauro, 21 F.3d 667, 670 (5th Cir.), cert.

denied, 513 U.S. 1016 (1994). It goes without saying that federal

courts are courts of limited jurisdiction.

Article III of the Constitution of the United States provides

that “[t]he judicial Power ... shall be vested in one supreme

Court, and in such inferior Courts as the Congress may from time to

time ordain and establish”. U.S. CONST. art. III, § 1. “The

judicial Power shall extend to all Cases, in Law and Equity,

arising under [the] Constitution, the Laws of the United States,

and Treaties made, or which shall be made, under their Authority;

— [and] to [, inter alia,] all Cases affecting Ambassadors, other

7
public Ministers and Consuls.” Id. § 2. “In all Cases [,inter

alia,] affecting Ambassadors, other public Ministers and Consuls,

... the supreme Court shall have original Jurisdiction.” Id.

It is more than well established that Congress has plenary

authority to regulate federal court jurisdiction and can withhold

such jurisdiction at its discretion. See Doleac v. Michalson, 264

F.3d 470, 492 (5th Cir. 2001); see also Kline v. Burke Constr. Co.,

260 U.S. 226, 234 (1922); Cary v. Curtis, 44 U.S. 236, 245 (1845).

“Courts created by statute can have no jurisdiction but such as the

statute confers.” Sheldon v. Sill, 49 U.S. 441, 449 (1850). In

short, there must be a statutory basis for the district court’s

jurisdiction over the claims asserted by Jordan.

Seeking a declaratory judgment is an appropriate mechanism for

obtaining a determination of immunity. See FED. R. CIV. P. 57, adv.

comm. note (“The existence or non-existence of any right, duty, ...

or immunity ... may be declared.”); see also In the Matter of Rio

Grande Trans., Inc., 516 F. Supp. 1155, 1157 (S.D.N.Y. 1981)

(explaining that company filed claim for declaration it was immune,

under provisions of FSIA, from jurisdiction of the state and

federal courts of United States). On the other hand, the

Declaratory Judgment Act, 28 U.S.C. § 2201 et. seq., does not

provide a federal court with an independent basis for exercising

subject-matter jurisdiction. See Gaar v. Quirk, 86 F.3d 451, 453

(5th Cir. 1996) (“A petition for a declaratory judgment concerning

8
federal law is not sufficient to create federal jurisdiction;

hence, the relevant cause of action must arise under some other

federal law.” (internal quotation marks omitted)).

Likewise, as Jordan acknowledges, the FSIA, 28 U.S.C. § 1602

et. seq., does not vest federal courts with subject matter

jurisdiction by creating an independent cause of action. See Boxer

v. Gottlieb, 652 F. Supp. 1056, 1060 (S.D.N.Y. 1987) (“The [FSIA]

was not intended to create a new federal cause of action; instead

it provides access to the federal courts for the resolution of

ordinary legal disputes involving a foreign sovereign.”).

Additionally, the related grant of jurisdiction found in 28 U.S.C.

§ 1330, discussed below, confers jurisdiction only over “any claim

for relief in personam” that is against a foreign state, not over

in rem actions.

Instead, the FSIA provides the sole basis for obtaining in

personam jurisdiction over a foreign state. Argentine Republic v.

Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989). In

conjunction with the FSIA, federal courts have jurisdiction over

civil actions against “a foreign state ... as to any claim for

relief in personam with respect to which the foreign state is not

entitled to immunity under [28 U.S.C. §§] 1605-1607 ... or under

any applicable international agreement”, 28 U.S.C. § 1330(a), and

“[p]ersonal jurisdiction over a foreign state ... as to every claim

for relief over which the district courts have jurisdiction under

9
subsection (a) where service has been made under [28 U.S.C. §]

1608”, 28 U.S.C. § 1330(b). See also 28 U.S.C. § 1604 (“[A]

foreign state shall be immune from the jurisdiction of the courts

of the United States and of the States except as provided in [28

U.S.C. §§] 1605 to 1607”.). “Thus, personal jurisdiction, like

subject-matter jurisdiction, exists only when one of the exceptions

to foreign sovereign immunity in §§ 1605-1607 applies”. Argentine

Republic, 488 U.S. at 435 n.3.

A “foreign state” includes “a political subdivision of a

foreign state or an agency or instrumentality of a foreign state”,

defined as:

any entity —

(1) which is a separate legal person,
corporate or otherwise, and

(2) which is an organ of a foreign state or
political subdivision thereof, or a majority
of whose shares or other ownership interest is
owned by a foreign state or political
subdivision thereof, and

(3) which is neither a citizen of a State of
the United States as defined in section
1332(c) and (d) of this title, nor created
under the laws of any third country.

28 U.S.C. § 1603(b). “[A]lthough a party claiming FSIA immunity

retains the ultimate burden of persuasion on immunity, it need only

present a prima facie case that it is a foreign state; and, if it

does, the burden shifts to the party opposing immunity to present

evidence that one of the exceptions to immunity applies”. Kelly v.

10
Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 847 (5th Cir.),

cert. denied, 531 U.S. 979 (2000).

Needless to say, this case is quite unusual. Examining the

“interest” asserted by Jordan assists in deciding whether subject

matter jurisdiction is lacking.

A.

Federal courts may only adjudicate actual cases or

controversies. U.S. CONST. art. III, § 2. The Article III doctrine

of standing exists, in part, to prevent a litigant from raising

another’s legal rights. See Allen v. Wright, 468 U.S. 737, 750-51

(1984); Valley Forge Christian College v. Americans United for

Separation of Church and State, Inc., 454 U.S. 464, 474-75 (1982);

see also, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-

61 (1992) (Standing requires an injury in fact, a causal connection

between the injury and the defendant’s conduct, and a likelihood

that a judicial decision will redress the injury.). A party

seeking judicial review must show “more than an injury to a

cognizable interest. It requires that the party seeking review be

himself among the injured”. Sierra Club v. Morton, 405 U.S. 727,

734-35 (1972).

In district court and here, Layale has claimed lack of

standing, questioning what “interest” Jordan asserts in the

Aircraft. Layale maintains: Jordan’s only interest is in the

Operating Agreement (between the alleged owners and Arab Wings);

11
and sovereign immunity does not attach to such an insignificant and

attenuated interest, because such immunity does not apply to

property the sovereign did not own, possess, or control at the time

the court assumed jurisdiction over that property.

The interest Jordan is asserting is not made clear by its

briefs or complaint, which repeatedly make statements such as

“Layale has asserted a title interest in the Aircraft in which

[Jordan] holds a sovereign interest”. It appears that the

sovereign interest at issue is that embodied in the Operating

Agreement. At oral argument, when asked whether the interest

Jordan asserts is that in the Operating Agreement, Jordan’s counsel

stated it was. And, in its briefs, Jordan characterizes Layale’s

position as being that Jordan cannot have a sovereign interest

apart from an interest in title. Jordan does not maintain that it

is asserting the alleged owners’ title and ownership interest:

“[T]he FSIA provides immunity to a foreign state to protect its

interests (i.e.[,] the integrity of its sovereignty) and is not

limited to asserting mere title interests”.

Jordan asserts: its interest in the Aircraft is precisely the

question, that by claiming immunity, it seeks to avoid litigating;

and deciding its interest would reach the merits of the case.

Layale counters that a mere assertion that integrity of a sovereign

is at issue, without more, is insufficient to create immunity.

Although the alleged interest in the Operating Agreement may be

12
“more”, at issue is whether, if it is, the alleged interest rises

to the level of “property” sufficient to create foreign sovereign

immunity under § 1609.2

In any event, we need not decide standing vel non. A more

certain resolution lies through the issue of subject matter

jurisdiction.

B.

Jordan presents several alternative bases for subject matter

jurisdiction. Each fails.

2
The provision under which Jordan claims immunity, 28 U.S.C.
§ 1609, provides:

Subject to existing international agreements
to which the United States is a party at the
time of enactment of this Act the property in
the United States of a foreign state shall be
immune from attachment arrest and execution
except as provided in sections 1610 and 1611
of this chapter.

28 U.S.C. § 1609. Our research has revealed no cases defining
“property” as used in § 1609. Although the legislative history of
§ 1605 of the FSIA explains that “arrest or attachment must, under
section 1609, be immediately dissolved when the foreign state
brings to the court’s attention its interest in the vessel or cargo
and, hence, its right to immunity from arrest”, H.R. REP. No. 94-
1487, at 21-23 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6620-21
(interpreting FSIA §§ 1609 and 1605(b)), the only “interest”
mentioned in that paragraph is that of ownership. Id. (“vessels or
cargo of a foreign state”, “the ownership of the vessel in
question”, “foreign state’s ownership”). And, the legislative
history of § 1609 mentions only “the property of a foreign state”,
“foreign government property”, “property of a foreign sovereign”,
and “foreign government assets”. Id. at 6625-26.

13
 1.

The first basis claimed is 28 U.S.C. § 1251. That section

provides, inter alia:

(b) The Supreme Court shall have original but
not exclusive jurisdiction of:

(1) All actions or proceedings to which
ambassadors, other public ministers, consuls,
or vice consuls of foreign states are
parties[.]

28 U.S.C. § 1251(b). This is in contrast to subpart (a), which

vests the Supreme Court with “original and exclusive jurisdiction

of all controversies between two or more States”. Id. (a).

The 1948 revisions, codified as § 1251, provided, in

subsection (a)(2), for exclusive jurisdiction in the Supreme Court

over actions brought against ambassadors and ministers; in

subsection (b)(1), for original, but not exclusive, jurisdiction in

the Supreme Court over actions brought by such ambassadors and

ministers and to which consuls were parties. 28 U.S.C.A. § 1251

note (1993) (Revision Notes and Legislative Reports; 1948 Acts).

The 1978 amendments to § 1251 struck subsection (a)(2) and replaced

the “brought by” language in subsection (b)(1) with “to which

ambassadors ... are parties” (the current language). See 28

U.S.C.A. § 1251 note (1993) (Revision Notes and Legislative

Reports; 1978 Amendments).

The purpose of that revision was to allow district courts to

exercise concurrent jurisdiction “in those instances where foreign

14
ambassadors, members of diplomatic missions, or members of their

families will be subject to suit in the courts of the United

States”. S. REP. NO. 95-1108, at 6 (1978), reprinted in 1978

U.S.C.C.A.N. 1935, 1946 (interpreting § 1251). In sum, the 1978

revisions did not alter the Supreme Court’s jurisdiction but merely

allowed for non-exclusive jurisdiction over actions involving

ambassadors, ministers, and consuls of foreign nations.

Therefore, § 1251 addresses only the Supreme Court’s original

jurisdiction. It does not, by implication, confer subject matter

jurisdiction on a federal district court. See Ohio v. Wyandotte

Chems. Corp., 401 U.S. 493, 499 n.3 (1971) (noting § 1251(b) did

not confer jurisdiction on district courts and stating that another

statute must provide the basis for jurisdiction in such cases).

Along this line, and as discussed in the earlier referenced

1948 Acts note to § 1251, a more specific provision regarding the

original jurisdiction of district courts over civil actions in

which foreign officials are parties is found in 28 U.S.C. § 1351.

See 28 U.S.C.A. § 1251 note (Revision Notes and Legislative

Reports; 1948 Acts) (“Section 1351 of this title gives to United

States district courts, exclusive of the courts of the States,

jurisdiction of civil actions against such consuls and vice

consuls.”).

2.

Accordingly, Jordan also seeks shelter under the above

referenced § 1351. It provides:

15
 The district courts shall have original
jurisdiction, exclusive of the courts of the
States, of all civil actions and proceedings
against – ... members of a mission.

28 U.S.C. § 1351 (emphasis added). Layale does not contest that

Jordan’s Ambassador, who brings this action on behalf of Jordan, is

the head of a mission.

a.

Whether Jordan is correct that an action can be “against” an

ambassador if he brings it in a “defensive” position is discussed

infra in part II.B.2.b. In any event, § 1351 appears to

contemplate an action involving an ambassador in his individual,

not representative, capacity. Likewise, our research reveals no

cases considering § 1351 in which an ambassador was a party only in

a representative capacity.

It seems inconceivable that Congress intended § 1351 to apply

to declaratory actions brought by an ambassador in a representative

capacity. “It has long been the law that the consular agents of

nations are to be accorded the right to appear in our courts to

protect their nationals and their nationals’ property”; their role

is not limited to protecting the rights of foreign sovereigns. The

Maret, 145 F.2d 431, 438 (3d Cir. 1944) (citing The Bello Corrunes:

The Spanish Consul, Claimant, 19 U.S. (6 Wheat.) 152 (1821)). Were

we to hold that § 1351’s jurisdiction extends, as Jordan contends,

to cover a declaratory action brought by an ambassador in a

representative capacity, then an ambassador suing to protect the

16
rights of a national might automatically be able to remove the case

to federal court.

No relief “against” the Ambassador is sought in either this

action or the underlying state-court proceeding. Whatever interest

of Jordan in the Aircraft may be at issue, it is not an interest

held by Jordan’s Ambassador. Therefore, jurisdiction is also

lacking under § 1351.

b.

One point highlighted by the district court was that this in

rem action was brought by, rather than against, the Ambassador.

Based on our conclusion that the district court lacks jurisdiction

because the Ambassador brought the action in his representative

capacity, we need not further analyze jurisdiction under § 1351.

In the alternative, and because the parties focused on the

definition of “against”, we address it.

Jordan claims § 1351 “makes clear that a party need not be a

defendant for a case to be ‘against’ it”. The plain language of §

1351 does not make this clear; far from it. See 28 U.S.C. § 1351

(“all civil actions and proceedings against – ... members of a

mission” (emphasis added)). And the case law to which Jordan

analogizes its position is largely unhelpful.

Jordan asserts that, “in Leiter [Minerals, Inc. v. United

States, 352 U.S. 220 (1957)], the Supreme Court held that a

sovereign may file its own federal in rem action to adjudicate its

17
rights in property when it acts in a defensive posture, even though

a state court proceeding initiated prior to the federal action was

pending.... The sovereign defensive position that the Supreme

Court acknowledged in Leiter to protect the federal government’s

‘superior federal interests’ logically extends to foreign

sovereigns such as [Jordan]”.

In Leiter, the United States brought an action in rem to

obtain federal declaratory relief regarding its title to mineral

rights. Leiter, 352 U.S. at 228. Leiter Minerals had previously

brought an action in state court against mineral lessees of the

United States seeking to be declared owner of mineral rights under

land owned by the United States. Id. at 221. Similar to Layale’s

not suing Jordan in the pending state court action, Leiter Minerals

did not name the United States as a defendant. Id. at 222. The

United States then brought a federal declaratory action against

Leiter and others to quiet title in the mineral rights and for a

preliminary injunction restraining Leiter from prosecuting its

action in state court. Id. at 223.

At issue on appeal was the application of the Anti-Injunction

Act, 28 U.S.C. § 2283; the Supreme Court affirmed the injunction

granted by the district court. Id. at 224. The holding of Leiter

is that the Anti-Injunction Act does not apply to suits brought by

the United States. Id. at 225-26 (“The frustration of superior

federal interests that would ensue from precluding the Federal

18
Government from obtaining a stay of state court proceedings except

under the severe restrictions of 28 U.S.C. § 2283 ... would be so

great that we cannot reasonably impute such a purpose to Congress

from the general language of 28 U.S.C. § 2283 ... alone.”).

Central to the decision was that only a federal court could

determine the title of the United States to the mineral rights.

Id. at 226 (citing 28 U.S.C. § 1345 and United States v. Lee, 106

U.S. 196 (1882)).

The Court did state that, in attempting to protect its

property rights, “the position of the United States is essentially

a defensive one [and therefore] it should be permitted to choose

the forum in th[e] case, even though the state litigation has the

elements of an action characterized as quasi in rem”. Id. at 228

(emphasis added). The Court made that statement, however, only in

passing and as part of its conclusion that the injunction had been

properly granted. Id. at 226-28. Any extension of the “Leiter

doctrine” has involved the application of the Anti-Injunction Act

or another instance in which the federal government was found “more

justified in seeking a federal forum than a private litigant”.

United States v. Commonwealth of Pa., Dep’t of Envtl. Res., 923

F.2d 1071, 1078 (3d Cir. 1991).3 Jordan has asserted the Leiter

3
For example, concerning the Anti-Injunction Act, the Supreme
Court extended the holding of Leiter to exempt actions brought by
federal government agencies from the prohibition against injunctive
relief. NLRB v. Nash-Finch Co., 404 U.S. 138, 146-47 (1971). As
another example, several circuit courts have extended the Leiter

19
doctrine applies to this action. But neither Leiter nor any of the

extensions had anything to do with the definition of “against” as

used in § 1351. It is true that, to a certain extent, any party

that brings a declaratory action seeking to protect its interests

can be said to sue in a “defensive” posture. This, however, does

not necessarily satisfy a statutory requirement that a proceeding

be “against” that party. Even assuming Jordan is in a defensive

posture in this declaratory action, § 1351’s “against” requirement

has not been met.

3.

As discussed supra, the FSIA does not create jurisdiction.

Jordan acknowledges this, yet asserts that “the FSIA, as well as

the federal common law of foreign relations, present the court with

cognizable federal questions for which subject matter jurisdiction

is conferred by 28 U.S.C. § 1331 for cases or controversies arising

under the laws of the United States”.

a.

exception to cases in which the United States is a party asserting
a public interest other than federal title to property. See, e.g.,
Machesky v. Bizzell, 414 F.2d 283, 290-91 (5th Cir. 1969) (holding
public interest in First Amendment even greater than that in United
States’ property rights, therefore extending Leiter to hold that
“where important public rights to full dissemination of expression
on public issues are abridged by state court proceedings, the
principles of comity embodied in § 2283 must yield”); United States
v. Wood, 295 F.2d 772, 779 (5th Cir. 1961) (extending Leiter to
hold Anti-Injunction Act inapplicable when United States sues on
behalf of class of private citizens asserting highest public
interest (voting rights) and seeks to enjoin state criminal
proceedings), cert. denied, 369 U.S. 850 (1962).

20
 Concerning the FSIA, Jordan points to 28 U.S.C. § 1609, quoted

in note 2, supra. Again, that section states:

Subject to existing international agreements
to which the United States is a party at the
time of enactment of this Act the property in
the United States of a foreign state shall be
immune from attachment arrest and execution
except as provided in sections 1610 and 1611
of this chapter.

28 U.S.C. § 1609 (emphasis added). The right to be free from

attachment, however, concerns FSIA immunity (28 U.S.C. §§ 1602-

1611) and is not an independent cause of action that would fall

under § 1331 (federal question).4

b.

Jordan’s claim that a § 1331 federal question arises out of

the “federal common law of foreign relations” appears to be quite

similar to, if not the same as, that made in 1997 by HMS Aviation

as the basis for its unsuccessful removal of the Layale state court

action to federal court. There, claiming § 1331 jurisdiction, HMS

Aviation presented this point as the requisite federal question.

See supra at 4-5.

Jordan did not, however, raise this issue in district court.

It goes without saying that this point should have been first

presented there, so that it could have been properly and completely

developed. For example, factual development may have been

4
We need not reach Layale’s contention that sequestration of
property does not fall under § 1609.

21
necessary. It is far too late in the day to raise this point.

Therefore, we decline to address this issue for the first time on

appeal. See, e.g., Agrilectric Power Partners, Ltd. v. Entergy

Gulf States, Inc., 207 F.3d 301, 304 n.7 (5th Cir. 2000); cf.

Doleac, 264 F.3d at 492 (we will entertain legal issues raised for

the first time on appeal “in extraordinary instances ... to avoid

a miscarriage of justice” (quoting Bayou Liberty Ass’n, Inc. v.

United States Army Corps of Eng’rs, 217 F.3d 393, 398 (5th Cir.

2000))).

III.

For the foregoing reasons, the dismissal of this action is

AFFIRMED.

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