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Published online by Cambridge University Press: 27 February 2017
While in the United States, Scott Nelson saw a printed advertisement recruiting employees for the King Faisal Specialist Hospital (Hospital) in Riyadh, Saudi Arabia. The recruitment was conducted by an independent corporation, Hospital Corporation of America (HCA), which had contracted with Saudi Arabia to recruit employees for the Hospital. Nelson submitted an application, was interviewed by Hospital officials in Saudi Arabia, returned to the United States, and signed an employment agreement in Miami, Florida. As a monitoring systems engineer, he was responsible for electronic monitoring and control systems capabilities and the modification of existing equipment and installation of new equipment.
1 Pub. L. No. 94-583, 90 Stat. 2891 (1976) (codified at 28 U.S.C. §§1330, 1332(a)(2)–(a)(4), 1391(f), 1441(d), 1602–1611 (1988)).
2 Under other provisions of the FSIA, subject matter jurisdiction automatically exists in cases in which a foreign state is denied jurisdictional immunity, 28 U.S.C. §1030(a), and personal jurisdiction exists in any case in which subject matter jurisdiction exists and service of process is made in accordance with the FSIA. 28 U.S.C. §§1330(b), 1608.
3 28 U.S.C. §1603(d).
4 923 F.2d 1528, 1533.
5 Cf. Zedan v. Kingdom of Saudi Arabia, 849 F.2d 1511 (D.C. Cir. 1988), summarized in 82 AJIL 828 (1988) (no jurisdiction where Saudi official telephoned plaintiff in the United States, recruiting him to work for a private Saudi company, and the Saudi Government later took over the project and guaranteed plaintiff’s compensation).
6 America West Airlines v. GPA Group, Ltd., 877 F.2d 793 (9th Cir. 1989), summarized in 84 AJIL 262 (1990); Gould, Inc. v. Pechiney Ugine Kuhlmann, 853 F.2d 445 (6th Cir. 1988); Vencedora Oceanica Navigacion, S.A. v. Compagnie Nationale Algerienne de Navigation, 730 F.2d 195 (5th Cir. 1984).
7 Cf. Tucker v. Whitaker Travel Ltd., 620 F.Supp. 578 (E.D. Pa. 1985), aff’d, 800 F.2d 1140 (3d Cir.), cert. denied, 479 U.S. 986 (1986) (no jurisdiction in case based on police investigation); Herbage v. Meese, 747 F.Supp. 60 (D.D.C. 1990) (no jurisdiction in case based on arrest and extradition). It could be argued that, although official arrest is clearly sovereign activity, beating and torture do not involve the exercise of police power, particularly if such activity by police officials is contrary to the law of the foreign state. A counterargument is that the same considerations that underlie the act of state doctrine compel the conclusion that all conduct of the police authorities of a foreign state within its territory and under color of law is deemed to be sovereign in nature for purposes of the application of the FSIA, so that U.S. courts will not be engaged in determining the motivations of the police authorities or the validity of their acts. Defendants invoked the act of state doctrine as an additional ground for dismissal of the action, Brief for Appellees, filed Feb. 26, 1991, at 48 n. 17, and if the holding of the court of appeals on jurisdiction stands, the district court will decide that issue on remand.
8 621 F.2d 1371 (5th Cir. 1980). In 1980 the territory of what is now the United States Court of Appeals for the Eleventh Circuit was part of that of the U.S. Court of Appeals for the Fifth Circuit.
9 Plaintiffs in Arango claimed that the national airline had warranted their safe entry into the Dominican Republic and that it had a duty to warn them of the treatment that they might receive there.
10 See Victory Transport Inc. v. Comisaria General, 336 F.2d 354, 360 (2d Cir. 1964), cert. denied, 381 U.S. 934 (1965) (sovereign acts include “internal administrative acts, such as expulsion of an alien”).
11 De Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385 (5th Cir. 1985).
12 Gregorian v. Izvestia, 871 F.2d 1515 (9th Cir.), cert. denied, 110 S.Ct. 237 (1989).
13 Millen Indus, v. Coordination Council for N. Amer. Affairs, 855 F.2d 879 (D.C. Cir. 1988).
14 Petition for Rehearing and Suggestion of Rehearing in Banc, filed Apr. 1, 1991.
15 Statement of Interest of the United States in Support of Rehearing and Suggestion for Rehearing in Banc, filed Apr. 1, 1991. Prior to the enactment of the FSIA, a suggestion for or against immunity by the Department of State in a particular case was binding on the courts. Republic of Mexico v. Hoffman, 324 U.S. 30, 34–35 (1945); Victory Transport Inc. v. Comisaria General, 336 F.2d 354, 358 (2d Cir. 1964), cert. denied, 381 U.S. 934 (1965). Although one of the primary goals of the FSIA was to depoliticize determinations of sovereign immunity and place such decisions in the hands of the courts, H.R. Rep. No. 1487, 94th Cong., 2d Sess. 7 (1976), reprinted in 1976 U.S. Code Cong. & Admin. News 6604, 6605, the executive branch files amicus curiae briefs in some FSIA cases to protect its interest in the correct interpretation of the FSIA because of its foreign policy impact. See Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543 (D.C. Cir. 1987).
16 Statement of Interest, supra note 15, at 2.
17 Interestingly, the U.S. Government has argued for dismissal of that claim as well on jurisdictional grounds. “Since that cause of action would require review of the sovereign police activities, the failure to warn claim should not stand on its own.” Id. at 12 n.5.
18 The court of appeals appeared to have rejected defendants’ argument that certain of the claims were in essence claims f6r malicious prosecution and abuse of process, as to which a foreign state is immune under 28 U.S.C. § 1605(a)(5)(B). Brief for Appellees, supra note 7, at 27–29. Immunity may exist even if it is alleged that the tortious activity is connected to a commercial activity for which jurisdiction would otherwise exist under § 1605(a)(2) of the FSIA. See Gregorian v. Izvestia, 871 F.2d 1515, 1523 n.4 (9th Cir.), cert. denied, 110 S.Ct. 237 (1989).
19 The reasoning given for the assertion of jurisdiction over Royspec is particularly troubling. The fact that Royspec maintains an office in the United States and acts as the purchasing agent for the Hospital in the United States would be relevant if the FSIA were a statute that permits the assertion of jurisdiction based merely on the general presence of the defendant in the jurisdiction, and it is certainly relevant to a minimum contacts due process inquiry; but the commercial activity provisions of the FSIA require a specific jurisdictional nexus between the cause of action and the defendant’s contacts with the United States. Nelson was given the telephone number of the Maryland office so that his family might contact him in an emergency, and telexes that acknowledged his employment contained the telex designation “ROSPEC,” but these are merely incidental contacts and do not support the conclusion that the causes of action for detention and torture in Saudi Arabia are “based upon” the commercial activity of Royspec in the United States.
20 But see Zedan v. Kingdom of Saudi Arabia, 849 F. 2d 1511, 1514 (D.C. Cir. 1988), summarized in 82 AJIL 828 (1988).