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- NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
- being done in connection with this case, at the time the opinion is issued.
- The syllabus constitutes no part of the opinion of the Court but has been
- prepared by the Reporter of Decisions for the convenience of the reader.
- See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
-
- SUPREME COURT OF THE UNITED STATES
-
- 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. 6-14.
- (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. 6-9.
- (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. ___, ___, and that a state engages in commercial activity under
- that theory where it exercises only those powers that can also be
- exercised by private citizens, rather than those powers peculiar to
- sovereigns, id., at ___. 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. 9-13.
- (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.). Pp. 13-14.
- 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. Blackmun, J., filed an opinion concurring in part and
- dissenting in part. 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. Stevens, J., filed a dissenting opinion.
-