Personal Jurisdiction and the Act of State Doctrine
In Cruz II the Mexican Defendants presented a new argument - the complaint should be dismissed because it would be unconstitutional for the court to assert personal jurisdiction pursuant to the Due Process Clause.113 The Plaintiffs countered by saying the defendant banks were not “persons within the meaning of the Due Process Clause.”114 The court agreed, and held that principals of international law - like comity and sovereign immunity, govern foreign states’ jurisdictional rights.115 Justice Breyer distinguished the constitution, which protects the freedoms of individuals, from a separate system under the Federal government designed to resolve international disputes.116 Since the Mexican banks had acted as agents of the government, the court dismissed their due process argument.117
The court also rejected the defendants’ motion to dismiss based on the Act of State Doctrine.118 The Act of State Doctrine is non-jurisdictional, and operates to avoid political and foreign policy conflicts caused by official acts of a foreign state.119 It is applied when a foreign sovereign performs an official act in its own territory, and a cause of action requires a U.S. court to declare the act invalid.120 In considering whether to apply the Act of State Doctrine, a court will consider factors such as whether the official foreign act was done in the public interest, whether it is supported internationally, and whether its condemnation would interfere with the Executive Branch’s foreign policy.121 The defendants failed to produce evidence that Mexico had made a “statute, decree, order, or resolution,” sufficient to invoke application of the Act of State Doctrine.122 The court also refused to decline jurisdiction based on the principles of international comity. When a nation employs international comity, it respects the judgment of another nation within its own territory for the sake of convenience and international duty.123 Defendants urged the court to adopt the doctrine of comity since Mexico had already created a special commission to investigate the complaints of the braceros.124 By 2003, this special commission had, by the court’s estimation, “produced nothing more than recommendations . . . can be described as preliminary.”125 With the lack of a “legislative, executive, or judicial act,” the court dismissed the motion for international comity, but did so without prejudice, leaving the door open for a renewed motion.126
Statute of Limitations and Choice of Law
Now that the court had accepted jurisdiction under FSIA, federal common law would determine the choice of statute of limitations.127 The ultimate question became whether to apply the statute of limitations of Mexico or California.128 According to The Restatement of Restitution §142, the forum state would usually use its own statute of limitation unless it did not have a substantial interest in the case, or the statute of another state, with more substantial interest, would bar the claim.129 While plaintiffs’ were writing their motion for reconsideration, the California legislature passed a statute that set a time limit, December 31, 2005, by which a bracero seeking relief could file a claim.130 Effectively, this statute erased any kind of limitation problem for the plaintiffs.131 The defendants argued that the statute interfered with already existing (the 1942 and 1943 original Bracero agreements) federal policy involving the bracero, which preempts California’s power.132 Despite the defendants insistence that under the original agreements, it was stipulated that the political branch would resolve disputes with the bracero, the court found no evidence that the U.S. had “consistently reaffirmed a policy of non-judicial dispute resolution . . .”133 The defendants provided no evidence to indicate a clearly stated federal policy on dispute resolution that directly conflicted with the statute in California.134 The defendants also objected to the existence of the statute based on the overall concept that state legislation should not interfere with foreign affairs.135 This contention, that the statute “forces this Court to sit in judgment of a foreign power,” did not mix with the concept of FSIA, the purpose of which was to make litigation possible against a foreign sovereign.136 Justice Breyer also noted that the U.S., a defendant in the case, did not make any kind of statement saying the California statute jeopardized its relations with Mexico.137
While the California statute made the plaintiffs’ claims possible in California, there was a ten-year period of limitation in Mexico that posed a significant problem.138 After detailed analysis, the court determined that under Mexican law, the time period for the statute of limitations in Mexico began when the deposits were initially made, far more than ten years before the filing of Cruz II.139 Since there is no concept of equitable tolling in Mexico, all the claims would be barred by the statute of limitations. 140 Because many of the were California citizens, and those who were not had claims based on labor done in the state the court held that California had substantial contacts with the thus applying California’s statute of limitations.141 The court said that it is not exceptional in the U.S. legal system for civil statutes of limitation to be revived or extended, as they “find their justification in necessity and convenience rather than in logic.”142 To decide which choice of law should apply, Justice Breyer asked both parties to submit their views.143 After further analysis, the court held that it would be most appropriate to apply Mexican law.144 The court reasoned that application of Mexican law would benefit harmonious relations between the U.S. and Mexico, and provide a “uniform result,” since the braceros all shared a common tie with Mexico.145
Post-Cruz II Settlement
The statute of limitations for bracero relief passed the California legislature stated:
“Notwithstanding any other provision of law, any action brought by
a bracero, or heir or beneficiary of a bracero, arising out of a failure
to pay or turn over savings fund amounts shall not be dismissed for
failure to comply with the otherwise applicable statute of limitations,
provided the action is filed on or before December 31, 2005”146
Its passage proved critical for the success of Cruz 2, and was a direct result of the lobbying class counsel accomplished at the state and local level.147 Their work, along with bracero community activists, led to a $27 million dollar appropriation by the Mexican government for eligible braceros.148 However, this appropriation was only for braceros in Mexico, and not those in the United States.149
After Justice Breyer denied the defendants’ motion to dismiss, he ordered the parties to partake in a case management session in June 2005.150 The defendants filed an appeal with the Ninth Circuit, but that appeal was dismissed on October 8th, 2008, when the parties filed a joint motion for the case to be transferred back to Justice Breyer, Northern District, for the approval of a class settlement.151 The court granted final approval in February 2009.
The Big Picture: Guest Worker Programs and Immigration Reform
The bracero program was initially created to provide incentive for farm workers to return to Mexico at the end of the growing season, instead of remaining in the United States illegally.152 Of the estimated 4.5 million official braceros between 1942 and 1946, very few will receive compensation via the Cruz litigation. Mexican braceros marched on President Vincente Fox’s summer compound in June 2005 demanding compensation.153 Non-governmental organizations (“NGO’s”) in Mexico worked in conjunction with several United States-based non-profits to demand pay for Mexican braceros that remained repatriated.154
At the heart of Cruz v. U.S. is the issue of United States immigration policy towards Mexico. Six out of ten immigrants without legal documents in the United States are Mexicans.155 After World War II the need for braceros declined and returning Americans complained that Mexican workers took jobs from Americans.156 In reality, the Official Bracero Agreement, provides “Mexicans entering the United States under this understanding shall not be employed to displace other workers, or for the purpose of reducing rates of pay previously established.”157 In 1952, the Immigration and Nationality Act was enacted and was touted as a solution to illegal Mexican immigration.158 In reality while the Act made harboring illegal aliens a felony, it also included the “Texas Proviso.”159 The Texas Proviso provided that employing an illegal alien was not harboring for the purposes of the act, allowing farm owners to continue to exploit cheap Mexican labor in the fields.160 In June 1954 the Immigration and Naturalization Service (“INS” - now “USCIS” under The Department of Homeland Security) launched “Operation Wetback” and removed over 1 million illegal Mexican immigrants.161 Part of Operation Wetback was a cooperative initiative with the Department of Labor to encourage American Farmers to contract with organizations that employed only legal braceros.162 To encourage farmers, the Department of Labor relaxed the housing, wage, and food requirements, essentially reducing incentives to nothing effectively reducing their legal protections to the conditions of the first bracero program of 1917.163
In the late 1950’s Mexican American civil rights groups began campaigning against guest worker programs (loosely termed bracero programs).164 By 1960 President Kennedy supported legislation to curb the bracero programs stating that the programs were “Adversely affecting the wages, working conditions, and employment opportunities of (American) agricultural workers.”165 The resulting reinstatement of mandatory wage and housing protections resulted in more mechanization of farming in Texas and California.166 The Bracero Program ended in 1965, a little over a year after a bus crash killed 32 braceros and many of the bodies were not claimed even though they were contracted to farmers in the area.167
Despite the fact that twenty percent of the United States population consists of immigrants or individuals who have at least one immigrant parent, there remains a strong lobby against Mexican immigration specifically.168 In general the anti-immigration lobby advances three arguments for the need for restrictive immigration reform: loss of cultural homogeneity, the risk to national security, and shortages in housing and transportation.169 Because Latin American immigrants account for a significant amount of illegal immigration most restrictive immigration reform focuses on border security.170 Mexican workers account for a substantial amount of Latin American immigrants. In 2004 Mexican immigrants accounted for 31% of the foreign born population.171 Given the history of immigration policy from the Bracero Program, “Operation Wetback”, and current anti-immigration sentiment fueled largely by the World Trade Center attacks in 2001 Mexican Americans bear the brunt of Americans’ growing anti-immigrant sentiment.
The Anti-Immigration Argument
The anti-immigration argument is based upon three core beliefs: that immigrants take jobs from native-born Americans, illegal immigration hurts the US economy by consuming taxpayer funds and that the dollars earned by undocumented workers do not enter the U.S. economy to a substantial degree.172 “It is estimated that illegal aliens displace roughly 730,000 American workers (annually), at a cost of $4.28 billion a year, and the supply of cheap labor they provide depresses the wages and working conditions of the (legal) working poor.” The counter argument is one that is often pointed out – legal and illegal farm workers take the jobs that Americans do not want.173 In May 2005 the Presient Of Mexico, Vincente Fox states, “There’s no doubt that Mexican men and women – full of dignity willpower, and a capacity for work – are doing the work that not even blacks want to do in the United States.”174 President Fox later apologized for any racist intonations in his remark, but he did hit on the point that , both legal and illegal have been exploited for over a century because they are willing to do the work that farmers need done for a price that farmers can afford.
The second argument of the anti-immigration movement is that illegal immigrants drain tax payer resources.175 Many states in the United States are required by the State constitution to provide basic non-emergency healthcare and public assistance programs to resident of their states, without proof of legal residency.176 There is little to no research to show how any of these taxpayer funds are offset by the money that agriculture-heavy states make from exploiting the braceros cheap labor.177 The final argument that U.S. dollars made by braceros do not stay in the U.S. economy is one that can be made for many immigrants, both legal and illegal.178 Money made my immigrants in general (particularly first generation) is sent back to their native country.179
Modern Guest Worker Legislation
As previously discussed, the history of the bracero in the United States has been fraught with discrimination and exploitation. Unfortunately, precious little has changed for the plight if the agricultural day laborer – legal and illegal. The H2-A Temporary Agricultural Guest Worker Program was developed as a way to allow farmers to apply for agricultural workers to come and perform agricultural on a seasonal basis.180 The system is riddled with problems, the first being that USCIS is on such a significant back-log for almost all kinds of visas that it made it nearly impossible for farmers to use the H2-A program when it began.181 When the program began USCIS – then INS – approved on 3.3% of the 1.2 million farm workers that were needed to harvest the 1999 crops.182 This in combination with poor enforcement lead farmers to seek illegal labor without the bureaucracy and finances that the H2-A program involved.183 The H2-A program was supplemented with a national registry of American workers that were available to farmers.184 This too failed along with the Agricultural Job Opportunity Benefits and Security Act of 1999 (“AgJOBS”).185 There has been no significant guest worker legislation that has been put into place. President Bush’s Immigration Reform Plan had five main areas: secure the borders, create a temporary worker program, hold employees accountable for who they hire, penalize those currently residing illegally, and honor the melting pot tradition.186 The guest worker arm of this program would provide for temporary workers to be given cards that would allow them to travel to their home country with re-entry rights.187 Given the seasonal nature of the bracero tradition, this too has not proven a viable option to try to stem illegal immigration based on agricultural workers.188
The Legacy of the Cruz Litigation
One of the central issues with all of these programs and that of the original bracer program is the exploitation of immigrant workers from Mexico. The Cruz litigation has spurned several projects to collect oral histories and make the plight of the Mexican bracero part of the wider American collective history. The Braceros History Project, a joint project by Brown University’s Center for the Study of Race and Ethnicity in America, the Institute of Oral History at the University of Texas – El Paso, the Smithsonian Institute’s National Museum of American History, and the Center for History and New Media at George Mason University were awarded a $350,000 grant from the National Endowment for the Humanities (NEH) to support development of an online Bracero Program archive.189 The increased recent debate about a guest-worker program brought the issue of the Cruz litigation and the plight of braceros both old and new to the attention of modern scholars.190 The NEH great was considered a particularly large milestone as the money originated from the Endowment’s “We the People” project, signifying that the legacy of the bracero in the United States is no longer a foreign issue, but part of our legacy as Americans.191
A unique opportunity to interview one of the Cruz attorneys, John Karsh, revealed some interesting perspective, some of which is paraphrased below.
How did you get involved with Cruz ?
JK: My firm got involved with the case in 2003, while administering another settlement in Mexico for a different case. This was after the first Cruz complaint had been filed, and they were going through motions to dismiss. While we were in Mexico, some braceros basically came up to us and said, “Can you help us with this one?” After that, we came across a story in the press by a reporter for the San Jose Mercury News who somehow got access to the Wells Fargo Archives. That gave us more information and enough to put together a suit.
Can you give me some insight as to how and why the De La Torre, Chavez, and Barba cases were consolidated with Cruz?
JK: Under the rules of civil procedure you can consolidate cases that arise from a single case of facts. Consolidation here was a bit harder because our case involved contracts the braceros had entered between 1942 and 1946, where some of the other cases went all the way up to 1964 and went on a different theory. But, all the cases had the same defendants. Since there was going to be a fair amount of overlap in discovery, the court decided it made more sense to have all of those cases in the same courtroom so that defendants would only have to give depositions and produce documents once.
Can you give me some idea of how it felt to go from the struggle of pursuing litigation, to the
next stage of negotiating a settlement?
JK: We were dismissed several times. One of the biggest hitches was whether you could get jurisdiction over the Mexican government in U.S. federal courts. That had to do with foreign sovereign immunity. The first time we were dismissed the court said the FSIA wasn’t retroactive, and did not reach back to 1942. Then, there was an intervening U.S. Supreme Court decision that said it was retroactive. After that decision, we went back to the district judge and asked him to reconsider and got the case reinstated. Then there were all these hurdles to go through. The judge said we were barred by the statute of limitations found in Mexican law – which would have completely killed us off. We went to him and said, “You made a logical error in your reasoning: the statute of limitations that applies is in fact California law.” He agreed, and that got us back again. The interesting wrinkle here is, the California law was a law that we got passed in the California general assembly. You wouldn’t think you could do this, but we asked the California Assembly, and they passed a special statute of limitations for this case. This is something that none of us had ever done before.
So how did you make that happen? Did you have any other kind of political help?
JK: Yes, we had a law firm in California with a lot of political connections and they got it
After that, how did the settlement talks begin?
JK: Settlement talks began in about December 2007, and went on for more than a year. I can’t tell you what made the Mexicans come to the table. I have no idea why they wanted to settle. For all I knew, they were going to win this case.
Things seemed to be going in their favor, and all of a sudden the settlement advanced rapidly.
Do you have any other idea about why they chose to settle?
JK: I don’t actually think it had anything to do with the merits of the case. I think they were going to win on the merits. I think it had to do with politics in Mexico. I don’t think it was diplomacy between governments, but there was a lot of political pressure in Mexico, which you know, we tried to encourage and had some role in. But still, they were going to win this case! I can’t tell you exactly why they decided to come to the table – it’s a mystery to me.
So were they going to win on the Statute of Limitations defense?
JK: They had another defense that turned out to be even better then the statue of limitations. There’s this thing called the Act of State Doctrine, and it basically means that if the government has passed a law, no United States court was going to look at the sufficiency of that law. So several years into our case, the Mexican government did pass a law offering some braceros some money. So one way of looking at our suit as it continued is we were saying, that law isn’t good enough – exactly what the Act of State Doctrine says you can’t do. As I see it, that was pretty much a bullet proof defense for them.
But didn’t the Judge in Cruz 2 say that the program was at an administrative standstill?
JK: Yeah so what happened was, the judge said they hadn’t passed the relief act yet, only considered it at the administrative level. We said that the Act of State Doctrine didn’t kick in yet, because they hadn’t actually passed a law. And then after that, they went ahead and passed a law. So we felt screwed then! I can’t begin to tell you why they began settlement talks.
Did you keep in touch with the braceros who initially approached you about the case?
JK: Try to keep in touch with people. Of course, the case went on for very long. These guys were in their early twenties between 1942 and 1946. It’s sixty years later, and now they’re in their 80s and 90s. So a lot of them died.
Reaching a settlement that allowed braceros in the U.S. to obtain relief without going to
Mexico was quite an accomplishment. What was the bracero community reaction to the