OCTOBER TERM, 1992
Syllabus
SAUDI ARABIA ET AL.
v. NELSON ET ux.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 91-522. Argued November 30, 1992-Decided March 23,1993
The respondents Nelson, a married couple, filed this action for
damages against petitioners, the Kingdom of Saudi Arabia, a Saudi
hospital, and the hospital's purchasing agent in the United States.
They alleged, among other things, that respondent husband suffered
personal injuries as a result of the Saudi Government's unlawful
detention and torture of him and petitioners' negligent failure to
warn him of the possibility of severe retaliatory action if he
attempted to report on-the-job hazards. The Nelsons asserted
jurisdiction under the Foreign Sovereign Immunities Act of 1976, 28
U. S. C. § 1605(a)(2), which confers jurisdiction where an action
is "based upon a commercial activity carried on in the United
States by the foreign state." The District Court dismissed for lack
of subject-matter jurisdiction. The Court of Appeals reversed,
concluding that respondent husband's recruitment and hiring were
"commercial activities" upon which the Nelsons' action was "based"
for purposes of § 1605(a)(2).
Held: The Nelsons' action is not "based upon a commercial
activity" within the meaning of the first clause of § 1605(a)(2),
and the Act therefore confers no jurisdiction over their suit. Pp.
355-363.
(a) This action is not "based upon" a commercial activity.
Although the Act does not define "based upon," the phrase is most
naturally read to mean those elements of a claim that, if proven,
would entitle a plaintiff to relief under his theory of the case,
and the statutory context confirms that the phrase requires
something more than a mere connection with, or relation to,
commercial activity. Even taking the Nelsons' allegations about
respondent husband's recruitment and employment as true, those
facts alone entitle the Nelsons to nothing under their theory of
the case. While these arguably commercial activities may have led
to the commission of the torts that allegedly injured the Nelsons,
it is only those torts upon which their action is "based" for
purposes of the Act. Pp. 355-358.
(b) Petitioners' tortious conduct fails to qualify as
"commercial activity" within the meaning of the Act. This Court has
ruled that the Act largely codifies the so-called "restrictive"
theory of foreign sovereign immunity,
Republic of Argentina
v.
Weltover, Inc., 504 U. S. 607, 612, and
that a state engages in commercial activity under that theory
where
350
Syllabus
it exercises only those powers that can also be exercised by
private citizens, rather than those powers peculiar to sovereigns,
id., at 614. The intentional conduct alleged here (the Saudi
Government's wrongful arrest, imprisonment, and torture of Nelson)
boils down to abuse of the power of the police. However monstrous
such abuse undoubtedly may be, a foreign state's exercise of that
power has long been understood for purposes of the restrictive
theory as peculiarly sovereign in nature. The Nelsons' argument
that respondent husband's mistreatment constituted retaliation for
his reporting of safety violations, and was therefore commercial in
character, does not alter the fact that the powers allegedly abused
were those of police and penal officers. In any event, that
argument goes to the purpose of petitioners' conduct, which the Act
explicitly renders irrelevant to the determination of an activity's
commercial character. Pp. 358-363.
(c) The Nelsons' attempt to claim failure to warn is merely a
semantic ploy. A plaintiff could recast virtually any claim of
intentional tort committed by sovereign act as a claim of failure
to warn. To give jurisdictional significance to this feint of
language would effectively thwart the Act's manifest purpose to
codify the restrictive theory of foreign sovereign immunity. Cf.
United States v.
Shearer, 473 U. S. 52, 54-55
(opinion of Burger, C. J.). P. 363.
923 F.2d
1528, reversed.
SOUTER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, and THOMAS, JJ., joined,
and in which KENNEDY, J., joined except for the last paragraph of
Part II. WHITE, J., filed an opinion concurring in the judgment, in
which BLACKMUN, J., joined,
post, p. 364. KENNEDY, J., filed
an opinion concurring in part and dissenting in part, in which
BLACKMUN and STEVENS, JJ., joined as to Parts I-B and II,
post, p. 370. BLACKMUN, J., filed an opinion concurring in
the judgment in part and dissenting in part,
post, p. 376.
STEVENS, J., filed a dissenting opinion,
post, p. 377.
Everett C.
Johnson, Jr., argued the cause for
petitioners.
With him on the briefs were
Mark E. Newell and
Marc
Cooper.
Jeffrey P. Minear argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were Solicitor
General Starr, Assistant Attorney General Gerson, Deputy Solicitor
General Roberts, Douglas Letter, and Edwin D. Williamson.
351
Paul Schott Stevens argued the cause for respondents.
With him on the brief were Leonard Garment, Abraham D. Sofaer,
William R. Stein, and Anthony D'Amato. *
JUSTICE SOUTER delivered the opinion of the Court.
The Foreign Sovereign Immunities Act of 1976 entitles foreign
states to immunity from the jurisdiction of courts in the United
States, 28 U. S. C. § 1604, subject to certain enumerated
exceptions. § 1605. One is that a foreign state shall not be immune
in any case "in which the action is based upon a commercial
activity carried on in the United States by the foreign state." §
1605(a)(2). We hold that respondents' action alleging personal
injury resulting from unlawful detention and torture by the Saudi
Government is not "based upon a commercial activity" within the
meaning of the Act, which consequently confers no jurisdiction over
respondents'suit.
I
Because this case comes to us on a motion to dismiss the
complaint, we assume that we have truthful factual allegations
before us, see
United States v.
Gaubert, 499 U. S. 315, 327
(1991), though many of those allegations are subject to dispute,
see Brief for Petitioners 3, n. 3; see also n. 1,
infra.
Petitioner Kingdom of Saudi Arabia owns and operates petitioner
King Faisal Specialist Hospital in Riyadh, as well as petitioner
Royspec Purchasing Services, the hospital's corporate purchasing
agent in the United States. App. 91. The Hospital Corporation of
America, Ltd. (HCA), an independent corporation existing under the
laws of the Cayman Islands, recruits Americans for employment at
the hospital
*Briefs of amici curiae urging affirmance were filed for Human
Rights Watch by Ellen Lutz, Kenneth Roth, and Jeffrey L. Braun; and
for the International Human Rights Law Group et al. by Douglas G.
Robinson, Julia E. Sullivan, Andrew L. Sandler, Michael Ratner,
Steven M. Schneebaum, Janelle M. Diller, and Harold Koh.
352
under an agreement signed with Saudi Arabia in 1973.
Id.,
at 73.
In its recruitment effort, HCA placed an advertisement in a
trade periodical seeking applications for a position as a
monitoring systems engineer at the hospital. The advertisement drew
the attention of respondent Scott Nelson in September 1983, while
Nelson was in the United States. After interviewing for the
position in Saudi Arabia, Nelson returned to the United States,
where he signed an employment contract with the hospital, id., at
4, satisfied personnel processing requirements, and attended an
orientation session that HCA conducted for hospital employees. In
the course of that program, HCA identified Royspec as the point of
contact in the United States for family members who might wish to
reach Nelson in an emergency.
Id., at 33.
In December 1983, Nelson went to Saudi Arabia and began work at
the hospital, monitoring all "facilities, equipment, utilities and
maintenance systems to insure the safety of patients, hospital
staff, and others."
Id., at 4. He did his job without
significant incident until March 1984, when he discovered safety
defects in the hospital's oxygen and nitrous oxide lines that posed
fire hazards and otherwise endangered patients' lives.
Id.,
at 57-58. Over a period of several months, Nelson repeatedly
advised hospital officials of the safety defects and reported the
defects to a Saudi Government commission as well.
Id., at
4-5. Hospital officials instructed Nelson to ignore the problems.
Id., at 58.
The hospital's response to Nelson's reports changed, however, on
September 27, 1984, when certain hospital employees summoned him to
the hospital's security office where agents of the Saudi Government
arrested him.1 The agents
1 Petitioners assert that the Saudi Government arrested Nelson
because he had falsely represented to the hospital that he had
received a degree from the Massachusetts Institute of Technology
and had provided the hospital with a forged diploma to verify his
claim. Brief for Petitioners 4-5. The Nelsons concede these
misrepresentations, but dispute that they occasioned Scott Nelson's
arrest. Brief for Respondents 9.
353
transported Nelson to a jail cell, in which they "shackled,
tortured and bea[t]" him, id., at 5, and kept him four days without
food, id., at 59. Although Nelson did not understand Arabic,
government agents forced him to sign a statement written in that
language, the content of which he did not know; a hospital employee
who was supposed to act as Nelson's interpreter advised him to sign
"anything" the agents gave him to avoid further beatings.
Ibid. Two days later, government agents transferred Nelson
to the Al Sijan Prison "to await trial on unknown charges."
Ibid.
At the prison, Nelson was confined in an overcrowded cell area
infested with rats, where he had to fight other prisoners for food
and from which he was taken only once a week for fresh air and
exercise.
Ibid. Although police interrogators repeatedly
questioned him in Arabic, Nelson did not learn the nature of the
charges, if any, against him.
Id., at 5. For several days,
the Saudi Government failed to advise Nelson's family of his
whereabouts, though a Saudi official eventually told Nelson's wife,
respondent Vivian Nelson, that he could arrange for her husband's
release if she provided sexual favors.
Ibid.
Although officials from the United States Embassy visited Nelson
twice during his detention, they concluded that his allegations of
Saudi mistreatment were "not credible" and made no protest to Saudi
authorities.
Id., at 64. It was only at the personal request
of a United States Senator that the Saudi Government released
Nelson, 39 days after his arrest, on November 5, 1984.
Id.,
at 60. Seven days later, after failing to convince him to return to
work at the hospital, the Saudi Government allowed Nelson to leave
the country.
Id., at 60-61.
In 1988, Nelson and his wife filed this action against
petitioners in the United States District Court for the Southern
District of Florida seeking damages for personal injury. The
Nelsons' complaint sets out 16 causes of action, which fall into
three categories. Counts II through VII and counts X, XI, XIV, and
XV allege that petitioners committed vari-
354
ous intentional torts, including battery, unlawful detainment,
wrongful arrest and imprisonment, false imprisonment, inhuman
torture, disruption of normal family life, and infliction of mental
anguish.
Id., at 6-11, 15, 19-20. Counts I, IX, and XIII
charge petitioners with negligently failing to warn Nelson of
otherwise undisclosed dangers of his employment, namely, that if he
attempted to report safety hazards the hospital would likely
retaliate against him and the Saudi Government might detain and
physically abuse him without legal cause.
Id., at 5-6, 14,
18-19. Finally, counts VIII, XII, and XVI allege that Vivian Nelson
sustained derivative injury resulting from petitioners' actions.
Id., at 11-12, 16, 20. Presumably because the employment
contract provided that Saudi courts would have exclusive
jurisdiction over claims for breach of contract, id., at 47, the
Nelsons raised no such matters.
The District Court dismissed for lack of subject-matter
jurisdiction under the Foreign Sovereign Immunities Act of 1976, 28
U. S. C. §§ 1330, 1602
et seq. It rejected the Nelsons'
argument that jurisdiction existed, under the first clause of §
1605(a)(2), because the action was one "based upon a commercial
activity" that petitioners had "carried on in the United States."
Although HCA's recruitment of Nelson in the United States might
properly be attributed to Saudi Arabia and the hospital, the
District Court reasoned, it did not amount to commercial activity
"carried on in the United States" for purposes of the Act.
Id., at 94-95. The court explained that there was no
sufficient "nexus" between Nelson's recruitment and the injuries
alleged. "Although [the Nelsons] argu[e] that but for [Scott
Nelson's] recruitment in the United States, he would not have taken
the job, been arrested, and suffered the personal injuries," the
court said, "this 'connection' [is] far too tenuous to support
jurisdiction" under the Act.
Id., at 97. Likewise, the court
concluded that Royspec's commercial activity in the United States,
purchasing supplies and equipment for the hospital, id., at
355
93-94, had no nexus with the personal injuries alleged in the
complaint; Royspec had simply provided a way for Nelson's family to
reach him in an emergency, id., at 96.
The Court of Appeals reversed.
923 F.2d
1528 (CAll 1991). It concluded that Nelson's recruitment and
hiring were commercial activities of Saudi Arabia and the hospital,
carried on in the United States for purposes of the Act, id., at
1533, and that the Nelsons' action was "based upon" these
activities within the meaning of the statute, id., at 15331536.
There was, the court reasoned, a sufficient nexus between those
commercial activities and the wrongful acts that had allegedly
injured the Nelsons: "the detention and torture of Nelson are so
intertwined with his employment at the Hospital," the court
explained, "that they are 'based upon' his recruitment and hiring"
in the United States.
Id., at 1535. The court also found
jurisdiction to hear the claims against Royspec.
Id., at
1536.2 After the Court of Appeals denied petitioners' suggestion
for rehearing en bane, App. 133, we granted certiorari, 504 U. S.
972 (1992). We now reverse.
II
The Foreign Sovereign Immunities Act "provides the sole basis
for obtaining jurisdiction over a foreign state in the courts of
this country."
Argentine Republic v.
Amerada Hess
Shipping Corp., 488 U. S. 428, 443
(1989). Under the Act, a foreign state is presumptively immune from
the jurisdiction of United States courts; unless a specified
exception applies, a federal court lacks subject-matter
jurisdiction over a claim against a foreign state.
Verlinden
B. v: v.
Central Bank of Nigeria, 461 U. S. 480, 488-489
(1983); see 28 U. S. C. § 1604; J. Dellapenna, Suing Foreign
Governments and Their Corporations 11, and n. 64 (1988).
2 The Court of Appeals expressly declined to address the act of
state doctrine, 923 F. 2d, at 1536, and we do not consider that
doctrine here.
356
Only one such exception is said to apply here. The first clause
of § 1605(a)(2) of the Act provides that a foreign state shall not
be immune from the jurisdiction of United States courts in any case
"in which the action is based upon a commercial activity carried on
in the United States by the foreign state."3 The Act defines such
activity as "commercial activity carried on by such state and
having substantial contact with the United States," § 1603(e), and
provides that a commercial activity may be "either a regular course
of commercial conduct or a particular commercial transaction or
act," the "commercial character of [which] shall be determined by
reference to" its "nature," rather than its "purpose," §
1603(d).
There is no dispute here that Saudi Arabia, the hospital, and
Royspec all qualify as "foreign state[s]" within the meaning of the
Act. Brief for Respondents 3; see 28 U. S. c. §§ 1603(a), (b)
(term" 'foreign state'" includes" 'an agency or instrumentality of
a foreign state' "). For there to be jurisdiction in this case,
therefore, the Nelsons' action must be "based upon" some
"commercial activity" by petitioners that had "substantial contact"
with the United States within the meaning of the Act. Because we
conclude that the suit is not based upon any commercial activity by
petitioners, we need not reach the issue of substantial contact
with the United States.
We begin our analysis by identifying the particular conduct on
which the Nelsons' action is "based" for purposes of the Act. See
Texas Trading &
Milling Corp. v.
Federal
3 In full, § 1605(a)(2) provides that "[a] foreign state shall
not be immune from the jurisdiction of courts of the United States
or of the States in any case ... in which the action is based upon
a commercial activity carried on in the United States by the
foreign state; or upon an act performed in the United States in
connection with a commercial activity of the foreign state
elsewhere; or upon an act outside the territory of the United
States in connection with a commercial activity of the foreign
state elsewhere and that act causes a direct effect in the United
States."
357
Republic of Nigeria, 647 F.2d
300, 308 (CA2 1981), cert. denied, 454 U. S. 1148 (1982);
Donoghue, Taking the "Sovereign" Out of the Foreign Sovereign
Immunities Act:
A Functional Approach to the Commercial Activity Exception, 17
Yale J. Int'l L. 489, 500 (1992). Although the Act contains no
definition of the phrase "based upon," and the relatively sparse
legislative history offers no assistance, guidance is hardly
necessary. In denoting conduct that forms the "basis," or
"foundation," for a claim, see Black's Law Dictionary 151 (6th ed.
1990) (defining "base"); Random House Dictionary 172 (2d ed. 1987)
(same); Webster's Third New International Dictionary 180, 181
(1976) (defining "base" and "based"), the phrase is read most
naturally to mean those elements of a claim that, if proven, would
entitle a plaintiff to relief under his theory of the case. See
Callejo v.
Bancomer, S.
A., 764 F.2d
1101, 1109 (CA5 1985) (focus should be on the "gravamen of the
complaint"); accord,
Santos v.
Compagnie Nationale Air
France, 934 F.2d
890, 893 (CA7 1991) ("An action is based upon the elements that
prove the claim, no more and no less");
Millen Industries,
Inc. v.
Coordination Council for North American Affairs,
272 U. S. App. D. C. 240, 246,
855 F.2d
879, 885 (1988).
What the natural meaning of the phrase "based upon" suggests,
the context confirms. Earlier, see n. 3,
supra, we noted
that § 1605(a)(2) contains two clauses following the one at issue
here. The second allows for jurisdiction where a suit "is based ...
upon an act performed in the United States in connection with a
commercial activity of the foreign state elsewhere," and the third
speaks in like terms, allowing for jurisdiction where an action "is
based ... upon an act outside the territory of the United States in
connection with a commercial activity of the foreign state
elsewhere and that act causes a direct effect in the United
States." Distinctions among descriptions juxtaposed against each
other are naturally understood to be significant, see
Melkonyan v.
Sulli-
358
van, 501 U.
S. 89, 94-95 (1991), and Congress manifestly understood there
to be a difference between a suit "based upon" commercial activity
and one "based upon" acts performed "in connection with" such
activity. The only reasonable reading of the former term calls for
something more than a mere connection with, or relation to,
commercial activity.4
In this case, the Nelsons have alleged that petitioners
recruited Scott Nelson for work at the hospital, signed an
employment contract with him, and subsequently employed him. While
these activities led to the conduct that eventually injured the
Nelsons, they are not the basis for the Nelsons' suit. Even taking
each of the Nelsons' allegations about Scott Nelson's recruitment
and employment as true, those facts alone entitle the Nelsons to
nothing under their theory of the case. The Nelsons have not, after
all, alleged breach of contract, see
supra, at 354, but
personal injuries caused by petitioners' intentional wrongs and by
petitioners' negligent failure to warn Scott Nelson that they might
commit those wrongs. Those torts, and not the arguably commercial
activities that preceded their commission, form the basis for the
Nelsons' suit.
Petitioners' tortious conduct itself fails to qualify as
"commercial activity" within the meaning of the Act, although the
Act is too "'obtuse'" to be of much help in reaching that
conclusion.
Callejo, supra, at 1107 (citation omitted). We
have seen already that the Act defines "commercial activity" as
"either a regular course of commercial conduct or a partic-
4 We do not mean to suggest that the first clause of §
1605(a)(2) necessarily requires that each and every element of a
claim be commercial activity by a foreign state, and we do not
address the case where a claim consists of both commercial and
sovereign elements. We do conclude, however, that where a claim
rests entirely upon activities sovereign in character, as here, see
infra, at 361-363, jurisdiction will not exist under that
clause regardless of any connection the sovereign acts may have
with commercial activity.
359
ular commercial transaction or act," and provides that "[t]he
commercial character of an activity shall be determined by
reference to the nature of the course of conduct or particular
transaction or act, rather than by reference to its purpose." 28 U.
S. C. § 1603(d). If this is a definition, it is one distinguished
only by its diffidence; as we observed in our most recent case on
the subject, it "leaves the critical term 'commercial' largely
undefined."
Republic of Argentina v.
Weltover, Inc.,
504 U. S. 607,
612 (1992); see Donoghue,
supra, at 499; Lowenfeld,
Litigating a Sovereign Immunity ClaimThe
Haiti Case, 49 N.
Y. U. L. Rev. 377, 435, n. 244 (1974) (commenting on then-draft
Act) ("Start with 'activity,' proceed via 'conduct' or
'transaction' to 'character,' then refer to 'nature,' and then go
back to 'commercial,' the term you started out to define in the
first place"); G. Born & D. Westin, International Civil
Litigation in United States Courts 479480 (2d ed. 1992). We do not,
however, have the option to throw up our hands. The term has to be
given some interpretation, and congressional diffidence necessarily
results in judicial responsibility to determine what a "commercial
activity" is for purposes of the Act.
We took up the task just last Term in
Weltover, supra,
which involved Argentina's unilateral refinancing of bonds it had
issued under a plan to stabilize its currency. Bondholders sued
Argentina in federal court, asserting jurisdiction under the third
clause of § 1605(a)(2). In the course of holding the refinancing to
be a commercial activity for purposes of the Act, we observed that
the statute "largely codifies the so-called 'restrictive' theory of
foreign sovereign immunity first endorsed by the State Department
in 1952." 504 U. S., at 612. We accordingly held that the meaning
of "commercial" for purposes of the Act must be the meaning
Congress understood the restrictive theory to require at the time
it passed the statute. See id., at 612-613.
Under the restrictive, as opposed to the "absolute," theory of
foreign sovereign immunity, a state is immune from the
360
jurisdiction of foreign courts as to its sovereign or public
acts
(jure imperii), but not as to those that are private or
commercial in character
(jure gestionis). Verlinden B. v: v.
Central Bank of Nigeria, 461 U. S., at 487;
Alfred
Dunhill of London, Inc. v.
Republic of Cuba, 425 U. S. 682, 698 (1976)
(plurality opinion); see 28 U. S. C. § 1602; see also
Dunhill,
supra, at 711 (Appendix 2 to the opinion of the Court) (Letter
to the Attorney General from Jack B. Tate, Acting Legal Adviser,
Dept. of State, May 19, 1952); Hill, A Policy Analysis of the
American Law of Foreign State Immunity, 50 Ford. L. Rev. 155, 168
(1981). We explained in
Weltover, supra, at 614 (quoting
Dunhill, supra, at 704), that a state engages in commercial
activity under the restrictive theory where it exercises" 'only
those powers that can also be exercised by private citizens,'" as
distinct from those" 'powers peculiar to sovereigns.''' Put
differently, a foreign state engages in commercial activity for
purposes of the restrictive theory only where it acts "in the
manner of a private player within" the market. 504 U. S., at 614;
see Restatement (Third) of the Foreign Relations Law of the United
States § 451 (1987) ("Under international law, a state or state
instrumentality is immune from the jurisdiction of the courts of
another state, except with respect to claims arising out of
activities of the kind that may be carried on by private
persons").
We emphasized in
Weltover that whether a state acts "in
the manner of" a private party is a question of behavior, not
motivation:
"[B]ecause the Act provides that the commercial character of an
act is to be determined by reference to its 'nature' rather than
its 'purpose,' the question is not whether the foreign government
is acting with a profit motive or instead with the aim of
fulfilling uniquely sovereign objectives. Rather, the issue is
whether the particular actions that the foreign state performs
(whatever
361
the motive behind them) are the type of actions by which
a private party engages in 'trade and traffic or commerce.'"
Weltover, supra, at 614 (citations omitted) (emphasis in
original).
We did not ignore the difficulty of distinguishing" 'purpose'
(i.
e., the
reason why the foreign state engages in
the activity) from 'nature' (i.
e., the outward form of the
conduct that the foreign state performs or agrees to perform)," but
recognized that the Act "unmistakably commands" us to observe the
distinction. 504 U. S., at 617 (emphasis in original). Because
Argentina had merely dealt in the bond market in the manner of a
private player, we held, its refinancing of the bonds qualified as
a commercial activity for purposes of the Act despite the apparent
governmental motivation.
Ibid.
Unlike Argentina's activities that we considered in
Weltover, the intentional conduct alleged here (the Saudi
Government's wrongful arrest, imprisonment, and torture of Nelson)
could not qualify as commercial under the restrictive theory. The
conduct boils down to abuse of the power of its police by the Saudi
Government, and however monstrous such abuse undoubtedly may be, a
foreign state's exercise of the power of its police has long been
understood for purposes of the restrictive theory as peculiarly
sovereign in nature. See
Arango v.
Guzman Travel Advisors
Corp., 621 F. 2d 1371, 1379 (CA5 1980);
Victory Transport
Inc. v.
Comisaria General de Abastecimientos y
Transportes, 336 F.2d
354, 360 (CA2 1964) (restrictive theory does extend immunity to
a foreign state's "internal administrative acts"), cert. denied,
381 U. S. 934 (1965);
Herbage v.
Meese, 747 F. Supp.
60, 67 (DC 1990), affirmance order, 292 U. S. App. D. C. 84,
946 F.2d
1564 (1991); K. Randall, Federal Courts and the International
Human Rights Paradigm 93 (1990) (the Act's commercial-activity
exception is irrelevant to cases alleging
362
that a foreign state has violated human rights).5 Exercise of
the powers of police and penal officers is not the sort of action
by which private parties can engage in commerce. "[S]uch acts as
legislation, or the expulsion of an alien, or a denial of justice,
cannot be performed by an individual acting in his own name. They
can be performed only by the state acting as such." Lauterpacht,
The Problem of Jurisdictional Immunities of Foreign States, 28
Brit. Y. B. Int'l L. 220, 225 (1952); see also id., at 237.
The Nelsons and their
amici urge us to give significance
to their assertion that the Saudi Government subjected Nelson to
the abuse alleged as retaliation for his persistence in reporting
hospital safety violations, and argue that the character of the
mistreatment was consequently commercial. One
amicus,
indeed, goes so far as to suggest that the Saudi Government "often
uses detention and torture to resolve commercial disputes." Brief
for Human Rights Watch as
5 The State Department's practice prior to the passage of the
Act supports this understanding. Prior to the Act's passage, the
State Department would determine in the first instance whether a
foreign state was entitled to immunity and make an appropriate
recommendation to the courts. See
Verlinden B. V. v.
Central Bank of Nigeria, 461 U. S. 480, 486-488
(1983). A compilation of available materials demonstrates that the
Department recognized immunity with respect to claims involving the
exercise of the power of the police or military of a foreign state.
See Sovereign Immunity Decisions of the Department of State, May
1952 to January 1977 (M. Sandler, D. Vagts, & B. Ristau eds.),
in 1977 Digest of United States Practice in International Law 1017,
1045-1046 (claim that Cuban armed guard seized cash from plaintiff
at Havana airport); id., at 1053-1054 (claim that Saudi militia
fired on plaintiffs and caused personal and property damage).
JUSTICE WHITE points to an episode in which the State Department
declined to recognize immunity with respect to a claim by Jamaican
nationals, working in the United States, against the British West
Indies Central Labour Organization, a foreign governmental agency.
See id., at
1062-1063; post, at 367-368, n. 3. In our view
that episode bears little relation to this case, for the Jamaican
nationals did not allege mistreatment by the police of a foreign
state.
363
Amicus Curiae 6. But this argument does not alter the
fact that the powers allegedly abused were those of police and
penal officers. In any event, the argument is off the point, for it
goes to purpose, the very fact the Act renders irrelevant to the
question of an activity's commercial character. Whatever may have
been the Saudi Government's motivation for its allegedly abusive
treatment of Nelson, it remains the case that the Nelsons' action
is based upon a sovereign activity immune from the subject-matter
jurisdiction of United States courts under the Act.
In addition to the intentionally tortious conduct, the Nelsons
claim a separate basis for recovery in petitioners' failure to warn
Scott Nelson of the hidden dangers associated with his employment.
The Nelsons allege that, at the time petitioners recruited Scott
Nelson and thereafter, they failed to warn him of the possibility
of severe retaliatory action if he attempted to disclose any safety
hazards he might discover on the job. See
supra, at 354. In
other words, petitioners bore a duty to warn of their own
propensity for tortious conduct. But this is merely a semantic
ploy. For aught we can see, a plaintiff could recast virtually any
claim of intentional tort committed by sovereign act as a claim of
failure to warn, simply by charging the defendant with an
obligation to announce its own tortious propensity before indulging
it. To give jurisdictional significance to this feint of language
would effectively thwart the Act's manifest purpose to codify the
restrictive theory of foreign sovereign immunity. Cf.
United
States v.
Shearer, 473 U. S. 52, 54-55 (1985)
(opinion of Burger, C. J.).
III
The Nelsons' action is not "based upon a commercial activity"
within the meaning of the first clause of § 1605(a)(2) of the Act,
and the judgment of the Court of Appeals is accordingly
reversed.
It is so ordered.
364
WHITE, J., concurring in judgment
JUSTICE WHITE, with whom JUSTICE BLACKMUN joins, concurring in
the judgment.
According to respondents' complaint, Scott Nelson's employer
retaliated against him for reporting safety problems by "summon[ing
him] ... to the hospital's security office from which he was
transported to a jail cell." App. 5. Once there, he allegedly was
"shackled, tortured and beaten by persons acting at the direction,
instigation, provocation, instruction or request of"
petitioners-Saudi Arabia, King Faisal Specialist Hospital, and
Royspec.
Id., at 5, 14, 18. The majority concludes that
petitioners enjoy sovereign immunity because respondents' action is
not "based upon a commercial activity." I disagree. I nonetheless
concur in the judgment because in my view the commercial conduct
upon which respondents base their complaint was not "carried on in
the United States."
I A
As the majority notes, the first step in the analysis is to
identify the conduct on which the action is based. Respondents have
pointed to two distinct possibilities. The first, seemingly pressed
at trial and on appeal, consists of the recruiting and hiring
activity in the United States. See Brief for Appellant in No.
89-5981 (CAll), pp. 12-15. Although this conduct would undoubtedly
qualify as "commercial," I agree with the majority that it is "not
the basis for the Nelsons' suit,"
ante, at 358, for it is
unrelated to the elements of respondents' complaint.
In a partial change of course, respondents suggest to this Court
both in their brief and at oral argument that we focus on the
hospital's commercial activity in Saudi Arabia, its employment
practices and disciplinary procedures. Under this view, the Court
would then work its way back to the recruiting and hiring activity
in order to establish that the commercial conduct in fact had
"substantial contact" with the United
365
States. See Brief for Respondents 22, 24-25, 31; Tr. of Oral
Arg. 44-45. The majority never reaches this second stage, finding
instead that petitioners' conduct is not commercial because it "is
not the sort of action by which private parties can engage in
commerce."
Ante, at 362. If by that the majority means that
it is not the manner in which private parties ought to engage in
commerce, I wholeheartedly agree. That, however, is not the
relevant inquiry. Rather, the question we must ask is whether it is
the manner in which private parties at times
do engage in
commerce.
B
To run and operate a hospital, even a public hospital, is to
engage in a commercial enterprise. The majority never concedes this
point, but it does not deny it either, and to my mind the matter is
self-evident. By the same token, warning an employee when he blows
the whistle and taking retaliatory action, such as harassment,
involuntary transfer, discharge, or other tortious behavior,
although not prototypical commercial acts, are certainly well
within the bounds of commercial activity. The House and Senate
Reports accompanying the legislation virtually compel this
conclusion, explaining as they do that "a foreign government's ...
employment or engagement of laborers, clerical staff or marketing
agents ... would be among those included within" the definition of
commercial activity. H. R. Rep. No. 941487, p. 16 (1976) (House
Report); S. Rep. No. 94-1310, p. 16 (1976) (Senate Report). Nelson
alleges that petitioners harmed him in the course of engaging in
their commercial enterprise, as a direct result of their commercial
acts. His claim, in other words, is "based upon commercial
activity."
Indeed, I am somewhat at a loss as to what exactly the majority
believes petitioners have done that a private employer could not.
As countless cases attest, retaliation for
366
WHITE, J., concurring in judgment
whistle-blowing is not a practice foreign to the marketplace.1
Congress passed a statute in response to such behavior, see
Whistleblower Protection Act of 1989, 5 U. S. C. § 1213
et
seq. (1988 ed., Supp. III), as have numerous States. On
occasion, private employers also have been known to retaliate by
enlisting the help of police officers to falsely arrest employees.
See,
e. g., Rosario v.
Amalgamated Ladies Garment
Cutters' Union, 605 F.2d
1228, 1233, 1247-1248 (CA2 1979), cert. denied, 446 U. S. 919
(1980). More generally, private parties have been held liable for
conspiring with public authorities to effectuate an arrest, see,
e. g., Adickes v. S.
H. Kress & Co.,
398 U. S. 144 (1970), and
for using private security personnel for the same purposes, see
Albright v.
Longview Police Dept., 884 F.2d
835, 841-842 (CA5 1989).
Therefore, had the hospital retaliated against Nelson by hiring
thugs to do the job, I assume the majority-no longer able to
describe this conduct as "a foreign state's exercise of the power
of its police,"
ante, at 361-would consent to calling it
"commercial." For, in such circumstances, the state-run hospital
would be operating as any private participant in the marketplace
and respondents' action would be based on the operation by Saudi
Arabia's agents of a commercial business.2
1 See,
e. g., English v.
General Electric Co.,
496 U. S. 72,
75-76 (1990);
Belline v.
K-Mart Corp., 940 F.2d
184, 186-189
(CA7 1991);
White v.
General
Motors Corp., 908 F.2d
669, 671 (CAlO 1990), cert. denied, 498 U. S. 1069 (1991);
Sanchez v.
Unemployment Ins. Appeals Bd., 36 Cal. 3d
575, 685 P. 2d 61 (1984);
Collier v.
Superior Court of
Los Angeles County, 228 Cal. App. 3d 1117,279 Cal. Rptr. 453
(1991).
2 "[W]hen the foreign state enters the marketplace or when it
acts as a private party, there is no justification in modern
international law for allowing the foreign state to avoid the
economic costs of ... the accidents which it may cause .... The law
should not permit the foreign state to shift these everyday burdens
of the marketplace onto the shoulders of private parties."
Testimony of Monroe Leigh, Legal Adviser, Department of State,
Hearings on H. R. 11315 before the Subcommittee on Administrative
Law and Governmental Relations of the House Committee on the
Judiciary, 94th Cong., 2d Sess., 27 (1976).
367
At the heart of the majority's conclusion, in other words, is
the fact that the hospital in this case chose to call in government
security forces. See
ante, at 362. I find this fixation on
the intervention of police officers, and the ensuing
characterization of the conduct as "peculiarly sovereign in
nature,"
ante, at 361, to be misguided. To begin, it fails
to capture respondents' complaint in full. Far from being directed
solely at the activities of the Saudi police, it alleges that
agents of the
hospital summoned Nelson to its security
office because he reported safety concerns and that the
hospital played a part in the subsequent beating and
imprisonment. App. 5, 14. Without more, that type of behavior
hardly qualifies as sovereign. Thus, even assuming for the sake of
argument that the role of the official police somehow affected the
nature of petitioners' conduct, the claim cannot be said to "res[t]
entirely upon activities sovereign in character." See
ante,
at 358, n. 4. At the very least it "consists of both commercial and
sovereign elements," thereby presenting the specific question the
majority chooses to elude. See ibid. The majority's single-minded
focus on the exercise of police power, while certainly simplifying
the case, thus hardly does it justice.3
3 In contrast, the cases cited by the majority involve action
that did not take place in a commercial context and that could be
considered purely sovereign. For instance, in
Arango v.
Guzman Travel Advisors Corp., 621 F.2d
1371 (CA5 1980), plaintiffs were expelled from the Dominican
Republic pursuant to a decision by immigration officials that they
were "'undesirable aliens.'''
Id., at 1373. As the Court of
Appeals reasoned, the airline's actions "were not commercial. [It]
was impressed into service to perform these functions ... by
Dominican immigration officials pursuant to that country's laws."
Id., at 1379. Nor was there a hint of commercial activity in
Herbage v.
Meese, 747 F. Supp. 60 (DC 1990),
affirmance order, 292 U. S. App. D. C. 84,
946
F.2d 1564 (1991), an extradition case that did not so much as
mention the commercial activity exception.
Absence of a commercial context also distinguishes those
incidents relied on by the majority that predate passage of the
Foreign Sovereign Immunities Act. See
ante, at 362, n. 5.
Yet the majority gives short shrift to an occurrence that most
closely resembles the instant case and
368
WHITE, J., concurring in judgment
Reliance on the fact that Nelson's employer enlisted the help of
public rather than private security personnel is also at odds with
Congress' intent. The purpose of the commercial exception being to
prevent foreign states from taking refuge behind their sovereignty
when they act as market participants, it seems to me that this is
precisely the type of distinction we should seek to avoid. Because
both the hospital and the police are agents of the state, the case
in my mind turns on whether the sovereign is acting in a commercial
capacity, not on whether it resorts to thugs or government officers
to carry on its business. That, when the hospital calls in security
to get even with a whistle-blower, it comes clothed in police
apparel says more about the state-owned nature of the commercial
enterprise than about the noncommercial nature of its tortious
conduct. I had thought the
that suggests strongly that the hospital's enlistment of, and
cooperation with, the police should not entitle it to immunity. The
incident involved allegations that an agency of the Jamaican
Government conspired to have Jamaican nationals working in the
United States "falsely arrested, imprisoned and blacklisted, and to
deprive them of wages and other employee rights." Sovereign
Immunity Decisions of the Department of State, May 1952 to January
1977 (M. Sandler, D. Vagts, & B. Ristau eds.), in 1977 Digest
of United States Practice in International Law 1062. Significantly,
the State Department did not take refuge behind the words
"arres[t]" and "impriso[n]" and decide that the actions were
sovereign in nature. Rather, it declined to recognize immunity,
focusing on the fact that private parties acting in an employment
context could do exactly what the Jamaican agency was alleged to
have done: "[T]he activities under consideration are of a private
nature .... The Department of State is impressed by the fact that
the activities of the British West Indies Central Labour
Organization ... are very much akin to those that might be
conducted by a labor union or by a private employment
agency-arranging and servicing an agreement between private
employers and employees. Although it may be argued that some of the
acts performed by the British West Indies Central Labour
Organization in this case are consular in nature, the Department
believes that they arise from the involvement of the British West
Indies Central Labour Organization in the private employer-employee
contractual relationship rather than from a consular
responsibility, and cannot be separated therefrom."
Id., at
1063.
369
issue put to rest some time ago when, in a slightly different
context, Chief Justice Marshall observed:
"It is, we think, a sound principle, that when a government
becomes a partner in any trading company, it devests itself, so far
as concerns the transactions of that company, of its sovereign
character, and takes that of a private citizen. Instead of
communicating to the company its privileges and its prerogatives,
it descends to a level with those with whom it associates itself,
and takes the character which belongs to its associates, and to the
business which is to be transacted." Bank of United States
v. Planters' Bank of Georgia, 9 Wheat. 904, 907 (1824).
See also
Alfred Dunhill of London, Inc. v.
Republic of
Cuba, 425 U. S.
682, 695-696 (1976) (plurality opinion).
C
Contrary to the majority's suggestion,
ante, at 363, this
conclusion does not involve inquiring into the purpose of the
conduct. Matters would be different, I suppose, if Nelson had been
recruited to work in the Saudi police force and, having reported
safety violations, suffered retributive punishment, for there the
Saudi authorities would be engaged in distinctly sovereign
activities. Cf. House Report, at 16 ("Also public or governmental
and not commercial in nature, would be the employment of
diplomatic, civil service, or military personnel"); Senate Report,
at 16. The same would be true if Nelson was a mere tourist in Saudi
Arabia and had been summarily expelled by order of immigration
officials. See
Arango v.
Guzman Travel Advisors
Corp., 621 F.2d
1371 (CA5 1980). In this instance, however, the state-owned
hospital was engaged in ordinary commercial business and "[i]n
their commercial capacities, foreign governments do not exercise
powers peculiar to sovereigns. Instead, they exercise only those
powers that can also be exercised by private
370
Opinion of KENNEDY, J.
citizens."
Alfred Dunhill, supra, at 704 (plurality
opinion). As we recently stated, "when a foreign government acts,
not as regulator of a market, but in the manner of a private player
within it, the foreign sovereign's actions are 'commercial' within
the meaning of the FSIA."
Republic of Argentina v.
Weltover, Inc., 504 U. S. 607, 614
(1992). That, I believe, is the case here.
II
Nevertheless, I reach the same conclusion as the majority
because petitioners' commercial activity was not "carried on in the
United States." The Act defines such conduct as "commercial
activity ... having substantial contact with the United States." 28
U. S. C. § 1603(e). Respondents point to the hospital's recruitment
efforts in the United States, including advertising in the American
media, and the signing of the employment contract in Miami. See
Brief for Respondents 43-45. As I earlier noted, while these may
very well qualify as commercial activity in the United States, they
do not constitute the commercial activity upon which respondents'
action is based. Conversely, petitioners' commercial conduct in
Saudi Arabia, though constituting the basis of the Nelsons' suit,
lacks a sufficient nexus to the United States. Neither the
hospital's employment practices, nor its disciplinary procedures,
has any apparent connection to this country. On that basis, I agree
that the Act does not grant the Nelsons access to our courts.
JUSTICE KENNEDY, with whom JUSTICE BLACKMUN and JUSTICE STEVENS
join as to Parts I-B and II, concurring in part and dissenting in
part.
I join all of the Court's opinion except the last paragraph of
Part II, where, with almost no explanation, the Court rules that,
like the intentional tort claim, the claims based on negligent
failure to warn are outside the subject-matter jurisdiction of the
federal courts. These claims stand on a much different footing from
the intentional tort claims for
371
purposes of the Foreign Sovereign Immunities Act (FSIA). In my
view, they ought to be remanded to the District Court for further
consideration.
I A
I agree with the Court's holding that the Nelsons' claims of
intentional wrongdoing by the hospital and the Kingdom of Saudi
Arabia are based on sovereign, not commercial, activity, and so
fall outside the commercial activity exception to the grant of
foreign sovereign immunity contained in 28 U. S. C. § 1604. The
intentional tort counts of the Nelsons' complaint recite the
alleged unlawful arrest, imprisonment, and torture of Mr. Nelson by
the Saudi police acting in their official capacities. These are not
the sort of activities by which a private party conducts its
business affairs; if we classified them as commercial, the
commercial activity exception would in large measure swallow the
rule of foreign sovereign immunity Congress enacted in the
FSIA.
B
By the same token, however, the Nelsons' claims alleging that
the hospital, the Kingdom, and Royspec were negligent in failing
during their recruitment of Nelson to warn him of foreseeable
dangers are based upon commercial activity having substantial
contact with the United States. As such, they are within the
commercial activity exception and the jurisdiction of the federal
courts. Unlike the intentional tort counts of the complaint, the
failure to warn counts do not complain of a police beating in Saudi
Arabia; rather, they complain of a negligent omission made during
the recruiting of a hospital employee in the United States. To
obtain relief, the Nelsons would be obliged to prove that the
hospital's recruiting agent did not tell Nelson about the
foreseeable hazards of his prospective employment in Saudi Arabia.
Under the Court's test, this omission is what the negligence counts
are "based upon." See
ante, at 356.
372
Opinion of KENNEDY, J.
Omission of important information during employee recruiting is
commercial activity as we have described it. See
Republic of
Argentina v.
Weltover, Inc., 504 U. S. 607 (1992). It
seems plain that recruiting employees is an activity undertaken by
private hospitals in the normal course of business. Locating and
hiring employees implicates no power unique to the sovereign. In
explaining the terms and conditions of employment, including the
risks and rewards of a particular job, a governmental entity acts
in "the manner of a private player within" the commercial
marketplace.
Id., at 614. Under the FSIA, as a result, it
must satisfy the same general duties of care that apply to private
actors under state law. If a private company with operations in
Saudi Arabia would be obliged in the course of its recruiting
activities subject to state law to tell a prospective employee
about the risk of arbitrary arrest and torture by Saudi
authorities, then so would King Faisal Specialist Hospital.
The recruiting activity alleged in the failure to warn counts of
the complaint also satisfies the final requirement for invoking the
commercial activity exception: that the claims be based upon
commercial activity "having substantial contact with the United
States." 28 U. S. C. § 1603(e). Nelson's recruitment was performed
by Hospital Corporation of America, Ltd. (HCA), a wholly owned
subsidiary of a United States corporation, which, for a period of
at least 16 years beginning in 1973, acted as the Kingdom of Saudi
Arabia's exclusive agent for recruiting employees for the hospital.
HCA in the regular course of its business seeks employees for the
hospital in the American labor market. HCA advertised in an
American magazine, seeking applicants for the position Nelson later
filled. Nelson saw the ad in the United States and contacted HCA in
Tennessee. After an interview in Saudi Arabia, Nelson returned to
Florida, where he signed an employment contract and underwent
personnel processing and application procedures. Before leaving to
take his job at the hospital, Nelson attended an
373
orientation session conducted by HCA in Tennessee for new
employees. These activities have more than substantial contact with
the United States; most of them were "carried on in the United
States." 28 U. S. C. § 1605(a)(2). In alleging that the petitioners
neglected during these activities to tell him what they were bound
to under state law, Nelson meets all of the statutory requirements
for invoking federal jurisdiction under the commercial activity
exception.
II
Having met the jurisdictional prerequisites of the FSIA, the
Nelsons' failure to warn claims should survive petitioners' motion
under Federal Rule of Civil Procedure 12(b)(1) to dismiss for want
of subject-matter jurisdiction. Yet instead of remanding these
claims to the District Court for further proceedings, the majority
dismisses them in a single short paragraph. This is peculiar, since
the Court suggests no reason to question the conclusion that the
failure to warn claims are based on commercial activity having
substantial contact with the United States; indeed, the Court does
not purport to analyze these claims in light of the statutory
requirements for jurisdiction.
The Court's summary treatment may stem from doubts about the
underlying validity of the negligence cause of action. The Court
dismisses the claims because it fears that if it did not, "a
plaintiff could recast virtually any claim of intentional tort
committed by a sovereign act as a claim of failure to warn, simply
by charging the defendant with an obligation to announce its own
tortious propensity before indulging it."
Ante, at 363. In
the majority's view, "[t]o give jurisdictional significance to this
feint of language would effectively thwart the Act's manifest
purpose to codify the restrictive theory of foreign sovereign
immunity."
Ibid. These doubts, however, are not relevant to
the analytical task at hand.
374
Opinion of KENNEDY, J.
The FSIA states that with respect to any claim against a foreign
sovereign that falls within the statutory exceptions to immunity
listed in § 1605, "the foreign state shall be liable in the same
manner and to the same extent as a private individual under like
circumstances." 28 U. S. C. § 1606. The Act incorporates state law
and "was not intended to affect the substantive law determining the
liability of a foreign state."
First Nat. City Bank v.
Banco Para el Comercio Exterior de Cuba, 462 U. S. 611, 620
(1983). If the governing state law, which has not yet been
determined, would permit an injured person to plead and prove a
tortious wrong for failure to warn against a private defendant
under facts similar to those in this case, we have no authority
under the FSIA to ordain otherwise for those suing a sovereign
entity. "[W]here state law provides a rule of liability governing
private individuals, the FSIA requires the application of that rule
to foreign states in like circumstances."
Id., at 622,
The majority's citation of
United States v.
Shearer,
473 U. S. 52, 54-55 (1985) (opinion of Burger, C. J.), see
ante, at 363, provides no authority for dismissing the
failure to warn claims.
Shearer refused to permit a
plaintiff to recast in negligence terms what was essentially an
intentional tort claim, but that case was decided under the
doctrine of
Feres v.
United States, 340 U. S. 135 (1950). The
Feres doctrine is a creature of federal common law that
allows the Court much greater latitude to make rules of pleading
than we have in the current case. Here, our only task is to
interpret the explicit terms of the FSIA. The Court's conclusion in
Shearer was also based upon the fact that the intentional
tort exception to the Federal Tort Claims Act at issue there, 28 U.
S. C. § 2680(h), precludes "[a]ny claim arising out of" the
specified intentional torts. This language suggests that Congress
intended immunity under the FTCA to cover more than those claims
which simply sounded in intentional tort. There is no equivalent
language in the commercial activity
375
exception to the FSIA. It is also worth noting that the Court
has not adopted a uniform rule barring the recasting of intentional
tort claims as negligence claims under the FTCA; under certain
circumstances, we have permitted recovery in that situation. See
Sheridan v.
United States, 487 U. S. 392 (1988).
As a matter of substantive tort law, it is not a novel
proposition or a play on words to describe with precision the
conduct upon which various causes of action are based or to
recognize that a single injury can arise from multiple causes, each
of which constitutes an actionable wrong. See Restatement (Second)
of Torts §§447-449 (1965);
Sheridan, supra, at 405 (KENNEDY,
J., concurring in judgment);
Wilson v.
Garcia,
471 U. S. 261,
272 (1985). In
Sheridan, for example, this Court permitted
an action for negligent supervision to go forward under the FTCA
when a suit based upon the intentional tort that was the immediate
cause of injury was barred under the statute. See 487 U. S., at
400. As the Court observed, "it is both settled and undisputed that
in at least some situations the fact that an injury was directly
caused by an assault or battery will not preclude liability against
the Government for negligently allowing the assault to occur."
Id., at 398.
We need not determine, however, that on remand the Nelsons will
succeed on their failure to warn claims. Quite apart from potential
problems of state tort law that might bar recovery, the Nelsons
appear to face an obstacle based upon the former adjudication of
their related lawsuit against Saudi Arabia's recruiting agent, HCA.
The District Court dismissed that suit, which raised an identical
failure to warn claim, not only as time barred, but also on the
merits. See
Nelson v.
Hospital Corp. of America, No.
88-0484-CIVNesbitt (SD Fla., Nov. 1, 1990). That decision was
affirmed on appeal, judgment order reported at
946 F.2d
1546 (CAll 1991), and may be entitled to preclusive effect with
respect to the Nelsons' similar claims against the sovereign
defend-
376
Opinion of BLACKMUN, J.
ants, whose recruitment of Nelson took place almost entirely
through HCA. See generally
Montana v.
United States,
440 U. S. 147,
153 (1979) ("a final judgment on the merits bars further claims by
parties or their privies based on the same cause of action");
Lawlor v.
National Screen Service Corp., 349 U. S. 322, 330 (1955)
(defendants not party to a prior suit may invoke res judicata if
"their liability was ... 'altogether dependent upon the
culpability' of the [prior] defendants") (quoting
Bigelow v.
Old Dominion Copper Mining &
Smelting Co.,
225 U. S. 111,
127 (1912)); 18 C. Wright, A. Miller, & E. Cooper, Federal
Practice and Procedure § 4463, p. 567 (1981) (recognizing general
rule that "judgment in an action against either party to a
vicarious liability relationship establishe[s] preclusion in favor
of the other"); Restatement (Second) of Judgments § 51 (1982).
But the question of claim preclusion, like the substantive
validity under state law of the Nelsons' negligence cause of
action, has not yet been litigated and is outside the proper sphere
of our review. "[I]t is not our practice to reexamine a question of
state law of [this] kind or, without good reason, to pass upon it
in the first instance."
Sheridan, supra, at 401. That a
remand to the District Court may be of no avail to the Nelsons is
irrelevant to our task here; if the jurisdictional requirements of
the FSIA are met, the case must be remanded to the trial court for
further proceedings. In my view, the FSIA conferred subject-matter
jurisdiction on the District Court to entertain the failure to warn
claims, and with all respect, I dissent from the Court's refusal to
remand them.
JUSTICE BLACKMUN, concurring in the judgment in part and
dissenting in part.
I join JUSTICE WHITE'S opinion because it finds that
respondents' intentional tort claims are "based upon a commercial
activity" and that the commercial activity at issue in those claims
was not "carried on in the United States." I
377
join JUSTICE KENNEDY'S opinion insofar as it concludes that the
"failure to warn" claims should be remanded.
JUSTICE STEVENS, dissenting.
Under the Foreign Sovereign Immunities Act of 1976 (FSIA), a
foreign state is subject to the jurisdiction of American courts if
two conditions are met: The action must be "based upon a commercial
activity" and that activity must have a "substantial contact with
the United States." 1 These two conditions should be separately
analyzed because they serve two different purposes. The former
excludes commercial activity from the scope of the foreign
sovereign's immunity from suit; the second identifies the contacts
with the United States that support the assertion of jurisdiction
over the defendant.2
1 Section 4(a) of the FSIA 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-
"(2) in which the action is based upon a commercial activity
carried on in the United States by the foreign state." 28 U. S. C.
§ 1605(a)(2).
The key terms of this provision are defined in § 1603. Section
1603(e) defines "commercial activity carried on in the United
States by a foreign state" as "commercial activity carried on by
such state and having substantial contact with the United States."
Section 1603(d), in turn, defines "commercial activity" as "either
a regular course of commercial conduct or a particular commercial
transaction or act." Thus, interpolating the definitions from §
1603 into § 1605(a)(2) produces this equivalence:
"A foreign state shall not be immune from the jurisdiction of
courts of the United States or of the States in any case in which
the action is based upon a regular course of commercial conduct or
a particular commercial transaction carried on by such state and
having substantial contact with the United States."
2 See,
e. g., Maritime International Nominees
Establishment v.
Republic of Guinea, 224 U. S. App. D.
C. 119, 130, n. 18,
693 F.2d
1094, 1105, n. 18 (1982) ("the immunity determination involves
considerations distinct from the issue of personal jurisdiction,
and the FSIA's interlocking provisions are most profitably analyzed
when these distinctions are kept in mind"). See also J. Dellapenna,
Suing Foreign Governments and Their
378
In this case, as JUSTICE WHITE has demonstrated, petitioner
Kingdom of Saudi Arabia's operation of the hospital and its
employment practices and disciplinary procedures are "commercial
activities" within the meaning of the statute, and respondent Scott
Nelson's claim that he was punished for acts performed in the
course of his employment was unquestionably "based upon" those
activities. Thus, the first statutory condition is satisfied;
petitioner is not entitled to immunity from the claims asserted by
respondent.
Unlike JUSTICE WHITE, however, I am also convinced that
petitioner's commercial activities-whether defined as the regular
course of conduct of operating a hospital or, more specifically, as
the commercial transaction of engaging respondent "as an employee
with specific responsibilities in that enterprise," Brief for
Respondents 25-have sufficient contact with the United States to
justify the exercise of federal jurisdiction. Petitioner Royspec
maintains an office in Maryland and purchases hospital supplies and
equipment in this country. For nearly two decades the hospital's
American agent has maintained an office in the United States and
regularly engaged in the recruitment of personnel in this country.
Respondent himself was recruited in the United States and entered
into his employment contract with the hospital in the United
States. Before traveling to Saudi Arabia to assume his position at
the hospital, respondent attended an orientation program in
Tennessee. The position for which respondent was recruited and
ultimately hired was that of a monitoring systems manager, a
troubleshooter, and, taking respondent's allegations as true, it
was precisely respondent's performance of those responsibilities
that led to the hospital's retaliatory actions against him.
Corporations 66, 144 (1988) ("The nexus rules must be analyzed
separately from the substantive immunity rules ... in order to
understand jurisdictional questions under the Act" and because "the
laws regulating ... jurisdiction ... and immunity serve different
purposes, and thus require different dispositions") (footnotes
omitted).
379
Whether the first clause of § 1605(a)(2) broadly authorizes
"general" jurisdiction over foreign entities that engage in
substantial commercial activity in this country, or, more narrowly,
authorizes only "specific" jurisdiction over particular commercial
claims that have a substantial contact with the United States,3
petitioners' contacts with the United States in this case are, in
my view, plainly sufficient to subject petitioners to suit in this
country on a claim arising out of their nonimmune commercial
activity relating to respondent. If the same activities had been
performed by a private business, I have no doubt jurisdiction would
be upheld. And that, of course, should be a touchstone of our
inquiry; for as JUSTICE WHITE explains,
ante, at 366, n. 2,
and 368-369, when a foreign nation sheds its uniquely sovereign
status and seeks out the benefits of the private marketplace, it
must, like any private party, bear the burdens and responsibilities
imposed by that marketplace. I would therefore affirm the judgment
of the Court of Appeals.4
3 Though this case does not require resolution of that question
(because petitioners' contacts with the United States satisfy, in
my view, the more narrow requirements of "specific" jurisdiction),
I am inclined to agree with the view expressed by Judge
Higginbotham in his separate opinion in
Vencedora Oceanica
Navigacion, S.
A. v.
Compagnie Nationale Algerienne
de Navigation, 730 F.2d
195, 204-205 (1984) (concurring in part and dissenting in
part), that the first clause of § 1605(a)(2), interpreted in light
of the relevant legislative history and the second and third
clauses of the provision, does authorize "general" jurisdiction
over foreign entities that engage in substantial commercial
activities in the United States.
4 My affirmance would extend to respondents' failure to warn
claims. I am therefore in agreement with JUSTICE KENNEDY'S analysis
of that aspect of the case.
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