Background
A U.S. citizen Nelson filed suit against Saudi Arabia for alleged abuse and torture suffered while under arrest in Saudi Arabia.
A married couple of United States citizenry filed a tort action against the Kingdom of Saudi Arabia, King Faisal Specialist Hospital in Riyadh owned by the Saudi government, and the hospital's corporate agent in the US, Royspec Purchasing Services. The tort claim against these three entities collectively referred to as the Saudi government alleged that Mr. Nelson, a hospital engineer in Riyadh, was subjected to illicit incarceration, routine torture spanning a four-day period, and failure to admonish him as to the potential risks incurred by whistle-blowing. Based on the Saudi government's alleged wrongful actions, Mr. Nelson believed the US Foreign Sovereign Immunities Act of 1976 (FSIA) authorized the court jurisdiction to hear the case.
The Hospital Corporation of America, Ltd. (HCA), a career recruiting firm based in the US, placed ads in various media outlets for the position of monitoring systems engineer at the King Faisal Specialist Hospital in Riyadh. Mr. Nelson interviewed for the job in Riyadh, Saudi Arabia, and later entered into an employment contract with the hospital through HCA. Mr. Nelson's family was informed Royspec Purchasing Services, based in the US, was the designated agent through which to contact Mr. Nelson in an emergency.
Mr. Nelson began his new job in December 1983, which entailed monitoring “facilities, equipment, utilities, and maintenance systems to ensure the safety of patients, hospital staff, and others” (Saudi Arabia v. Nelson). Shortly after employment began he discovered numerous safety violations and defects throughout the hospital, of which he promptly informed his superiors and a Saudi government commission of the infractions. He was asked to ignore the problems by the hospital, but he persisted.
On September 27, 1984, Mr. Nelson was detained and subsequently tortured until signing a coerced statement, of which was in Arabic, a language he did not understand. Two days later he was imprisoned at Al Penitentiary without being charged with a crime. Mr. Nelson's wife was informed of her husband's whereabouts several days later but could not condition a release. On November 5, 1984, Mr. Nelson was released from prison through the plea of a US senator and left the country shortly thereafter through the permission of the Saudi Government. Mr. Nelson's employment contract was shortly terminated thereafter.
The plaintiff, Mr. Nelson, asserted the defendant, Saudi Arabia, was not immune to prosecution under the FSIA, which enumerates exceptions of which any must exist in order to deny a sovereigns’ foreign immunity. The list of exceptions refer to a State's conduct only. A State is denied sovereign foreign immunity if the State's conduct is private not public, private not sovereign, commercial not non-commercial or trade-related not political (Slomanson, 100). Specifically, the commercial activity immunity exception was used by Mr. Nelson. The plaintiff asserted job recruitment, contract of employment, and employment itself constituted the commercial activity that led to and associates the wrongful injury claim with the Saudi Government's commercial activity. Therefore, the plaintiff claims that the process of recruiting, hiring, and subsequent employment led to or indirectly are associated with his tortious injuries.
This case was first heard by a federal trial court that dismissed the case for lack of subject-matter jurisdiction because the FSIA did not define commercial activity as imprisonment and torture. The case traveled to an appellate court, which held recruiting, hiring, and employing all entailed commercial activities that led to the wrongful injury thus establishing jurisdiction to hear the case under FSIA. The appellate court overturned the district court's dismissal, but the Supreme Court reached the final, conclusive ruling.
Opinion of the Court
The Court's majority opinion, delivered by Justice Souter, held that the wrongful injury claim brought by Mr. and Mrs. Nelson was not “based upon a commercial activity” according to the Foreign Sovereign Immunities Act of 1976 (section 1605(a)(2)). The Court of Appeals judgment was thereby reversed, thus restoring the trial courts dismissal based upon a “lack of subject-matter jurisdiction”.
The court reasoned that the tortious acts of the defendant were not “based upon a commercial activity”, therefore not in violation of the Foreign Sovereign Immunities Act of 1976. The defendant's conduct, however heinous, could not be classified as being “based upon a commercial activity”. The tortious conduct rather is a gross abuse of state police power, which is an act only performed by sovereign states. Only States perform acts such as unlawful detention of private citizens, torture, conduct foreign engagements, and diplomatic relations. Private citizens cannot participate in acts of State.
Concurrences
Justice White and Justice Blackmun concur with Justice Souter's majority opinion with one caveat. The justices disagree that the defendant's tortious conduct was not “based upon a commercial activity”, but nonetheless concur with the majority judgment because the commercial acts did not occur in the US.
Dissents
Justice Kennedy believes the wrongful acts perpetrated by the defendant do constitute commercial activity. Under FSIA, the Saudi Government's operation of the hospital, employment practices, and disciplinary procedures were “based upon commercial activity” and therefore the plaintiff has proven the court does have jurisdiction.
Additionally, unlike Justice White, he believes the defendant's commercial activities did have adequate contact within the United States to fulfill an immunity exception under the FSIA.
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. In some, but not all, civil and mixed law jurisdictions, the term delict is used to refer to this category of civil wrong, though it can also refer to criminal offences in some jurisdictions and tort is the general term used in comparative law. The word tort stems from Old French via the Norman Conquest and Latin via the Roman Empire. The word 'tort' was first used in a legal context in the 1580s, although different words were used for similar concepts prior to this time.
The Foreign Sovereign Immunities Act of 1976 (FSIA) is a United States law, codified at Title 28, §§ 1330, 1332, 1391(f), 1441(d), and 1602–1611 of the United States Code, that established criteria as to whether a foreign sovereign nation is immune from suit in U.S. courts—federal or state. The Act also establishes specific procedures for service of process, attachment of property and execution of judgment in proceedings against a foreign state. The FSIA provides the exclusive basis and means to bring a lawsuit against a foreign sovereign in the United States. It was signed into law by United States President Gerald Ford on October 21, 1976.
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