The Supreme Court/The Supreme Court.iso/pc/wordperf/1991/91_522a/91_522a.zs

Text File | 1993-03-22 | 6KB | 101 lines

 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. S1605(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 S1605(a)(2).

Held:  The Nelsons' action is not ``based upon a commercial activity'' within_____
 the meaning of the first clause of S1605(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















                                                                    I           II                           SAUDI ARABIA v. NELSON                                         ____

                                    Syllabus

 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.