........SAUDI ARABIA v. NELSON
Author's Note: The Nelsons, a married couple, filed this action against the Kingdom of Saudi Arabia, a Saudi government-run hospital, and the hospital's purchasing agent in the United States. They alleged that the husband suffered personal injuries as a result of the Saudi government's unlawful detention, torture, and failure to warn him of the possibility of severe retaliatory action if he attempted to do his job by reporting on-the-job hazards. The Nelsons asserted jurisdiction under the US Foreign Sovereign Immunities Act of 1976, 28 United States Code Section 1605(a)(2)--or, the FSIA. That legislation authorizes a US court to hear a case "based upon a commercial activity carried on in the United States by the foreign state."
The federal trial court dismissed the Nelsons' claim for lack of subject-matter jurisdiction. That judge ruled that the US courts did not have the power to hear this case against Saudi Arabia and its agents because the torture and detention were not "commercial" activities within the meaning of the FSIA. The intermediate appellate court reversed, concluding that Mr. Nelson's recruitment and hiring were "commercial activities" of Saudi Arabia, thereby authorizing the prosecution of the Nelsons court action because Saudi Arabia and its agents were conducting ?commercial? activity as envisioned by Congress under its FSIA.
The US Supreme Court reversed the intermediate Court of Appeals, reinstating the trial court's dismissal of this case. None of these courts was ruling on the merits of the Nelson case. They were merely determining whether such a case could even be presented in US courts (for a subsequent trial regarding liability and damages). The dismissal of such cases does not absolve the defendant of liability for State responsibility (see Section 2.5 of the course textbook). Rather, its effect is that a trial judge is just not the appropriate decision maker.
The term "petitioner" refers to Saudi Arabia--the defendant in the courts below but the petitioner seeking reversal in the Supreme Court. The term "respondents" refers to the Nelsons?the plaintiffs below, and now responding to the Saudi attempt to reverse the Court of Appeals directive that the trial judge should proceed with this case.
The Supreme Court's citations have been deleted. Red paragraph numbers have been added to the text to facilitate ease of reference.
1. The Foreign Sovereign Immunities Act of 1976 [generally] entitles foreign states to immunity from the jurisdiction of courts in the United States, subject to certain enumerated exceptions. One [exception] 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." 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.
3. 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 ... 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, satisfied personnel processing requirements, and attended an orientation session that HCA conducted for Hospital employees. In the course of that program, HCA identified Royspec [hospital's agent in the US] as the point of contact in the United States for family members who might wish to reach Nelson in an emergency.
4. 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." He ... discovered safety defects in the Hospital?s oxygen and nitrous oxide lines that posed fire hazards and otherwise endangered patients' lives. 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. Hospital officials instructed Nelson to ignore the problems.
5. 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. The agents transported Nelson to a jail cell, in which they "shackled, tortured and bea[t]" him, and kept him four days without food. 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. Two days later, Government agents transferred Nelson to the Al Sijan Prison "to await trial on unknown charges."
6. 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. Although police interrogators repeatedly questioned him in Arabic, Nelson did not learn the nature of the charges, if any, against him. 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.
7. 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. 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. Seven days later, after failing to convince him to return to work at the Hospital, the Saudi Government allowed Nelson to leave the country. ...
9. Only one such exception is said to apply here. The first clause of Sec.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." The Act defines such activity as "commercial activity carried on by such state and having substantial contact with the United States," 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.'"
10. There is no dispute here that Saudi Arabia, the Hospital, and Royspec all qualify as "foreign state[s]" within the meaning of the Act. 28 USC Sections 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. ...
11. [The Court's footnote here concludes that "where a claim rests entirely upon activities sovereign in character, as here, jurisdiction will not exist ... regardless of any connection the sovereign acts may have with commercial activity."]
12. ... Petitioners' tortious conduct itself fails to qualify as "commercial activity" within the meaning of the Act, although the [FSI] Act is too "obtuse" to be of much help in reaching that conclusion. We have seen already that the Act defines "commercial activity" as "either a regular course of commercial conduct or a particular 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." If this is a definition, ... it "leaves the critical term 'commercial' largely undefined." 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.
13. Under the restrictive [codified in the FSIA], as opposed to the ?absolute,? theory of foreign sovereign immunity, a state is immune from the 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). We explained [in an earlier case] ... 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. We emphasized ... 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,' [and] 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 the motive behind them) are the type of actions by which a private party engages in 'trade and traffic or commerce.' ..."
14. [T]he 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. 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. ..."
It is so ordered.
Justice White, with whom Justice Blackmun joins, concurring in the judgment. ...
16. The majority [opinion above] 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. ..."
Justice Stevens, dissenting [from dismissal of this case].
20. Unlike Justice White, however, I am ... convinced that petitioner?s commercial activities ... 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. ...
21. If the same activities had been performed by a private business, I have no doubt jurisdiction would be upheld [and that this case would thus be able to proceed]. And that, of course, should be a touchstone of our inquiry; for as Justice White explains, 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 [which, in reversing the trial court, would have allowed this case to proceed].
* Notes & Questions
.....1. In 1996, the US Congress added an exception to §1605 of the Foreign Sovereign Immunities Act (FSIA)..US citizens may now bring federal suits against the seven statutorily designated terrorist countries, seeking damages resulting from torture, extrajudicial killing, aircraft sabotage, or hostage taking occurring in another country. State responsibility arises when an agent is carrying out his or her official duties, as delegated by the State. 28 USC §1605(a)(7). The specifically designated terrorist nations are Cuba, Iraq, Iran, Libya, North Korea, Sudan, and Syria.
.....2. In March 1998, a US court rendered one of the first judgments under this revision to the FSIA. Iran was
ordered to pay $247.5 million to the parents of an American woman killed in a 1995 suicide bombing in Gaza, for which Iran's Islamic Jihad claimed responsibility. Flatow v. Iran, 999 Fed. Supp. 1 (D.C. Dist., 1998). The plaintiff then sought to execute judgment against real estate belonging to Iran in Washington, D.C.--including the former Iranian embassy, and two bank accounts. However, the court of appeals held in the ensuing ligation that "Flatow's original judgment against Iran has come to epitomize the phrase 'Pyrrhic victory' [because] unless or until Congress decides to enact a law that authorizes the attachments [Flatow] seeks, this Court lacks the proper means to assist him with such endeavors." Flatow v. Alavi Foundation, 225 F.3d 653 (4th Cir., 2000) (unpublished opinion).
.....3. For similar litigation against Cuba, in the notorious "Brothers to the Rescue" incident, see Alejandre v. Republic of Cuba, 996 Fed. Supp. 1239 (S.D. Fla., 1997), judgment vacated by Alejandre v. Telefonica.Larga Distancia de Puerto Rico, Inc., 183 F.3d 1277 (11th Cir., 1999) (for plaintiffs' failure to meet burden of proving that the defendant was not an instrumentality of the Cuban government).
..... Jose Basulto, one of the survivors, won a $40M default judgment in January 2003, when President Castro did not appear in the proceedings. Details are availabe at <http://www.judicialwatch.org>, search "Basulto."
.....4. There are cases pending against Libya, previously dismissed but now refiled under the 1996 amendments to the FSIA, for Libya's role in the Pan Am Flight 103 bombing over Scotland in 1988. See, e.g., Rein v. Socialist People's Libyan Arab Jamahiriya, 162 F.3d 748 (2nd Cir., 1998). In an October, 2000 application of the 1996 amendment, American citizens held hostage in Iran will receive more than $213 million for eight separate judgments against Iran in U.S. courts. Under the 1996 legislation, the funds will be provided by the U.S. Treasury, using Iranian funds frozen in U.S. bank accounts. Almost $50 million will be paid to the two families of the two men shot down near Cuba in the Brothers to the Rescue incident. See <http://washingtonpost.com/wp-dyn/articles/A54644-2000Oct21.html>.
.....5. The US FSIA insulated Japan from being sued by fifteen Japanese citizens known as "comfort women" in State-sponsored "comfort houses" (brothels) used by Japanese troops in Guam, Korea, the Philippines, and
Taiwan during WWII. Japan allegedly: (1) engaged in a jus cogens violation of International Law (slavery),.and (2) engaged in activity falling within the commerical exception to the FSIA. The jus cogens theory of "implied waiver" of sovereign immunity is incompatible with the requirement that a nation intentionally waive its sovereign immunity. Also, the comfort house operations were not commerical activities, although a price was paid to enter them by Japanese soldiers. Japan was not engaging in a commercial activity as if it were a private trader. Hwang Geum Joo v. Japan, 332 F.3d 679, cert. granted and judgment remanded 124 S.Ct. 2835 (2004).
.....This case was remanded for further consideration, in light of the decision in Republic of Austria v. Altmann, 541 U.S. 677, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004). Altmann authorized a retroactive application of the 1975 FSIA to the taking of a valuable piece of art work by the Nazis from the plaintiff Austrin's citizen's uncle duirng WWII. This case is significant, because it applied the 1976 act's restrictive immunity approach to the period before the US 1952 switch, away from absolute immunbity for such acts.
.....6. In March 2001, a federal judge in New York ruled that Saudi Arabia could be sued in a commercial case involving an application of the Foreign Sovereign Immunities Act (FSIA). This was a dispute involving an Irish manufacturer, a German construction company, a Saudi government customer and a plastics firm in New York. Saudi Arabia guaranteed materials supply contract by stepping into the shoes of a financially troubled private contractor to ensure that a tent project was completed--and was thus a "commercial activity" within.the meaning of the FSIA. Tonoga, Ltd. v. Ministry of Public Works and Housing of Kingdom of Saudi Arabia, 135 F.Supp.2d 350 (N.D. N.Y., 2001).