## Facts

- A U.S. citizen engineer was recruited in the United States to work for a Saudi government-owned hospital in Riyadh and entered an employment contract with the hospital.
- A U.S. entity acted as the hospital’s purchasing/representative contact for matters in the United States.
- While employed, the engineer reported serious safety defects in hospital gas lines to hospital officials and a Saudi government commission.
- He was summoned to the hospital’s security office, arrested by Saudi authorities, jailed, and allegedly beaten and tortured before being released and permitted to leave Saudi Arabia.
- The engineer and his wife sued the Kingdom of Saudi Arabia, the hospital, and the U.S. representative entity for damages, alleging unlawful detention and torture and negligent failure to warn of retaliatory risks tied to reporting hazards.

## Issues

1. Whether the action was “based upon a commercial activity carried on in the United States” within the meaning of the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(2), because recruitment and hiring occurred in the United States.
2. Whether the alleged conduct—arrest, detention, and torture by Saudi officials, and a related failure to warn—constituted “commercial activity” under the FSIA commercial-activity exception.

## Decision

- The Supreme Court reversed the Eleventh Circuit and reinstated dismissal for lack of subject-matter jurisdiction.
- The Court held the suit was not “based upon” the U.S. recruitment or employment arrangements; it was based upon the alleged torts (arrest, detention, torture, and related omissions).
- The Court held the alleged torts stemmed from exercises of police power, which are sovereign acts rather than commercial activity.
- Because § 1605(a)(2) did not apply, Saudi Arabia and the related petitioners were immune under the FSIA.

## Legal Principles

- Under FSIA § 1605(a)(2), an action is “based upon” the conduct that constitutes the elements of the plaintiff’s claim—those acts that, if proven, entitle the plaintiff to relief—not merely conduct that has a causal or factual connection to the injury.
- Commercial activity for FSIA purposes turns on the nature of the act: conduct is commercial when it is the type of activity private parties can undertake, not when it involves powers peculiar to sovereigns.
- Arrest, detention, and punishment (including abuses of police authority) are sovereign in nature and do not become commercial acts because they occur in an employment setting.
- A failure-to-warn theory cannot establish FSIA commercial-activity jurisdiction when the alleged duty and harm are tied to sovereign police acts rather than market-type conduct.

## Conclusion

The Court held that the FSIA’s commercial-activity exception did not permit jurisdiction over claims arising from a foreign state’s alleged arrest, detention, and torture of an employee, even where the employment relationship was formed through recruitment and hiring in the United States.


Saudi Arabia v. Nelson, 507 U.S. 349 (1993)