United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 24, 2005 Decided November 22, 2005
Reissued January 17, 2006
No. 04-7209
ELISABETH KIRKHAM,
APPELLEE
v.
SOCIÉTÉ AIR FRANCE, T/A AIR FRANCE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cv01083)
Lynn E. Calkins argued the cause and filed the briefs for
appellant.
Athan T. Tsimpedes argued the cause and filed the brief for
appellee. John M. Shoreman entered an appearance.
Before: TATEL and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Under the Foreign Sovereign
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Immunities Act, foreign states enjoy immunity from suit in
federal court unless the plaintiff’s claim falls within one of
several enumerated exceptions. This case involves the
“commercial activity” exception, which applies to any action
“based upon a commercial activity carried on in the United
States by the foreign state.” 28 U.S.C. § 1605(a)(2). Appellee,
an American citizen who injured her foot in a Paris airport,
argues that her negligence suit against Air France fits within this
exception because the airline’s duty of care arose from her
purchase of a plane ticket in the United States. The district court
agreed. Because we find the ticket sale necessary to establish
Kirkham’s claim and thus sufficient to trigger the commercial
activity exception, we affirm.
I.
In 2000, appellee, Elisabeth Kirkham, purchased airline
tickets through a Washington, D.C. travel agency for a trip from
the United States to Paris and then on to Bastia. As scheduled,
Kirkham took a United Airlines flight to Paris and then, four
days later, went to Orly Airport for her Air France flight to
Bastia. Placing her bags on a luggage cart, she asked for
directions to her gate. After receiving conflicting information
from several airport employees, Kirkham approached a blue-
uniformed man whom she believed to be an Air France
employee. The man examined Kirkham’s plane ticket and
offered to take her to her gate. Struggling to keep up as she
pushed her luggage cart, Kirkham followed him into a highly
congested area, where either a person or a luggage cart struck
her foot. Kirkham fell to the ground, and the blue-uniformed
man called security, which took her to the airport’s medical
center. Kirkham then spent nine days in the hospital before
returning to the United States in a wheelchair. She has since had
several foot surgeries and continues to suffer complications from
her injury.
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Kirkham filed suit in the United States District Court for the
District of Columbia against Air France, alleging that the blue-
uniformed man worked for the airline and that her injury
resulted from his negligence. Air France then filed a motion for
summary judgment, asserting that because the Republic of
France owned a majority of Air France’s shares at the time of
Kirkham’s injury, the Foreign Sovereign Immunities Act (FSIA)
deprived the district court of subject matter jurisdiction.
Kirkham responded that her claim falls under the FSIA’s
commercial activity exception, which provides:
A foreign state shall not be immune from the
jurisdiction of courts of the United States or of the
States in any case . . . in which the action is based upon
a commercial activity carried on in the United States
by the foreign state . . . .
28 U.S.C. § 1605(a)(2). According to Kirkham, this exception
applies because the ticket sale, which forms the basis of the
“duty” element of her claim, occurred in the United States.
Specifically, Kirkham claimed that the ticket sale established a
passenger-carrier relationship, which imposed a duty on Air
France to provide Kirkham “safe passage” between Paris and
Bastia. Acknowledging it owes a duty of care towards its
passengers, Air France nevertheless asserted that because the
accident occurred in a public area of the airport before Kirkham
checked in for her flight, she was at most a “prospective
passenger” at the time of her injury. Given that no duty of care
had arisen at that point, Air France argued, Kirkham failed to
establish any link between her cause of action and the ticket
sale, thus rendering the commercial activity exception
inapplicable. Air France neither admitted nor denied that the
blue-uniformed man was an employee, but referred to him as
“unidentified” in its statement of uncontested facts.
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The district court found, as the airline argued, that “[i]f Air
France did not owe plaintiff a duty of care of safe passage at the
time of the accident, then plaintiff cannot show that her claim
was based on Air France’s commercial activity.” Kirkham v.
Société Air France, No. 03-1083, slip op. at 10 (D.D.C. Nov. 2,
2004). Moving away from Air France’s theory of the case, the
court then explained that the exception’s applicability turned on
whether the individual escorting Kirkham worked for Air France
and, if so, whether his actions “initiate[d]” the airline’s duty of
care toward her. Id. The court found that because Kirkham had
testified that she believed the blue-uniformed man was an Air
France employee and because Air France never disputed this
claim, the man’s employment status was “at the very least, a
disputed material fact.” Id. Reasoning that “by personally
escorting plaintiff to her Air France flight, and instructing her to
follow him, this employee exercised the necessary control over
plaintiff to create the passenger-carrier relationship,” id. at 12,
the court concluded that the U.S. ticket sale formed a basis of
Kirkham’s claim, triggering the FSIA’s commercial activity
exception. Accordingly, the district court denied Air France’s
motion for summary judgment. Id. at 14.
Air France now appeals, arguing that the district court erred
in (1) relying on Kirkham’s speculation that the blue-uniformed
man worked for Air France, and (2) finding that if the blue-
uniformed man was in fact an Air France employee, Air France
owed Kirkham a duty of care at the time of her injury.
II.
We start by noting that Air France raised sovereign
immunity through a Rule 56 motion for summary judgment. See
Fed. R. Civ. P. 56(e). Summary judgment, however, represents
a decision on the merits, which courts may render only after
jurisdiction has been established. See, e.g., Winslow v. Walters,
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815 F.2d 1114, 1116 (7th Cir. 1987) (“Seeking summary
judgment on a jurisdictional issue . . . is the equivalent of asking
a court to hold that because it has no jurisdiction the plaintiff has
lost on the merits. This is a nonsequitur.”). For this reason,
parties seeking FSIA immunity do so through Rule 12(b)(1)
motions to dismiss for lack of subject matter jurisdiction. See
Fed. R. Civ. P. 12(b)(1). We will thus treat Air France’s
summary judgment motion as a motion to dismiss and the
district court’s decision as a denial of a motion to dismiss for
lack of subject matter jurisdiction. See, e.g., Mexiport, Inc. v.
Frontier Commc’ns Servs., Inc., 253 F.3d 573, 574 n.2 (11th
Cir. 2001) (“Because we are not bound by the label placed on
the district court’s disposition of the case, we will treat the
district court’s summary judgment ruling as a dismissal of the
action.”).
That established, we have jurisdiction to hear Air France’s
interlocutory appeal under the collateral order doctrine. See El-
Hadad v. United Arab Emirates, 216 F.3d 29, 31 (D.C. Cir.
2000) (“The denial of a foreign state’s motion to dismiss on the
ground of sovereign immunity is subject to interlocutory appeal
under the collateral order doctrine.”). We review de novo a
district court’s denial of a motion to dismiss on sovereign
immunity grounds. See Kilburn v. Socialist People’s Libyan
Arab Jamahiriya, 376 F.3d 1123, 1127 (D.C. Cir. 2004).
The sole question before us is whether Kirkham’s
negligence claim is “based upon” her ticket purchase within the
meaning of the FSIA’s commercial activity exception.
Interpreting this exception, the Supreme Court held in Saudi
Arabia v. Nelson, 507 U.S. 349, 357 (1993), that “based upon”
refers to “those elements of a claim that, if proven, would entitle
a plaintiff to relief under his theory of the case.” In Nelson, an
American employee of a Saudi hospital brought suit against the
Kingdom of Saudi Arabia seeking damages for injuries he
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allegedly suffered while detained and tortured by the Saudi
government. The employee argued that the commercial activity
exception applied because the hospital recruited him in the
United States. Acknowledging that the hospital’s recruiting
activities “led to the conduct that eventually injured” the
employee, the Supreme Court nonetheless found that the
recruiting efforts were “not the basis for [his] suit.” Id. at 358.
Nelson makes clear that the commercial activity exception
has no applicability where the alleged commercial activity is
unnecessary to the plaintiff’s claim. As the Court explained,
even if the employee’s allegations about the hospital’s recruiting
efforts proved true, those facts did nothing to further his
intentional tort claims. In other words, because the employee
had no need to demonstrate the hospital recruited him in order
to prevail on the merits, the hospital’s recruiting activities
provided no basis for his suit. This case is very different.
Because, as Air France concedes, Kirkham must show she
purchased a plane ticket in order to establish a passenger-carrier
relationship with the airline, Oral Arg. at 5:40, 22:25, the ticket
sale is necessary to the “duty of care” element of her negligence
claim.
Of course, Kirkham’s purchase of the ticket is not sufficient
to establish that element, for she must also demonstrate that she
had acquired passenger status at the time of her injury. For this
reason, the district court treated the blue-uniformed man’s
employment status and the extent of his control over Kirkham
as jurisdictional facts: Without sufficient evidence that the blue-
uniformed man had “initiate[d] [the] duty of care” created by the
ticket sale, the district court reasoned, Kirkham would be unable
to rely on that sale to establish her claim. Kirkham, slip op. at
8-10.
Although we agree with the district court that Kirkham
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cannot prevail on the merits of her claim without first
demonstrating that she acquired passenger status prior to her
injury, we think that issue irrelevant to the jurisdictional
question before us. Under the commercial activity exception as
interpreted by Nelson, we must determine whether the ticket sale
is one of “those elements of a claim that, if proven, would entitle
[Kirkham] to relief under [her] theory of the case.” 507 U.S. at
357. The district court appears to have thought that “elements”
refers only to the primary components of Kirkham’s negligence
claim, i.e., duty of care, breach of duty of care, and proximate
causation between that breach and the alleged injury. See, e.g.,
Wilson v. Good Humor Corp., 757 F.2d 1293, 1297 n.3 (D.C.
Cir. 1985) (laying out the elements of a negligence claim). For
reasons explained below, we think it more consistent with
Nelson and the FSIA to read “elements” as referring to each fact
necessary to establish a claim. In other words, so long as the
alleged commercial activity establishes a fact without which the
plaintiff will lose, the commercial activity exception applies,
regardless of whether the plaintiff has either alleged or provided
sufficient evidence of the additional facts necessary to prevail on
the merits. See Santos v. Compagnie Nationale Air France, 934
F.2d 890, 893 (7th Cir. 1991) (“An action is based upon the
elements that prove the claim, no more and no less.”), cited with
approval in Nelson, 507 U.S. at 357; Nazarian v. Compagnie
Nationale Air France, 989 F. Supp. 504, 508 (S.D.N.Y. 1998)
(“In sum, this Court has subject-matter jurisdiction [under the
FSIA] over any claims made by the plaintiffs in which the
elements of the claim require proof of Air France’s commercial
activity in the United States.”).
Again, we agree that Kirkham will lose if she fails to show
that Air France owed her a duty of care at the time of the
accident. But she will also lose if she fails to show that the blue-
uniformed man acted negligently or that his negligence
proximately caused her injury. The problem with the district
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court’s approach is that it ties sovereign immunity to the merits
of the plaintiff’s claim, expanding the category of jurisdictional
facts to include actions and events other than the actual
commercial activity which triggers the exception. Nothing in
Nelson suggests such an expansive overlap between the question
of sovereign immunity and the substance of the plaintiff’s claim.
Equally important, the FSIA gives no indication that the
exception’s applicability depends on any aspect of the plaintiff’s
claim other than the defendant’s commercial activity in the
United States. Although the legislative history is “relatively
sparse,” Nelson, 507 U.S. at 357, we know that the statute
codifies the “restrictive” theory of foreign sovereign immunity,
which holds “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),” id. at 359-60; see also 28 U.S.C. § 1602 (noting in
the FSIA’s “Findings and declaration of purpose” that “[u]nder
international law, states are not immune from the jurisdiction of
foreign courts insofar as their commercial activities are
concerned”). In other words, under the FSIA, once a foreign
state engages in a commercial activity in the United States, it
becomes subject to litigation based upon that activity—just like
any other commercial actor. If a defendant foreign state
believes the plaintiff has failed to lay out the elements of her
claim or to provide sufficient evidence supporting her non-
jurisdictional allegations, it may—like any other federal court
defendant—file a Rule 12(b)(6) motion or a Rule 56 motion.
See Fed. R. Civ. P. 12(b)(6), 56. It may not, however, defeat
U.S. court jurisdiction on such grounds. See, e.g., Nazarian, 989
F. Supp. at 507-10 (finding subject matter jurisdiction because
plaintiffs’ negligence claim fell under the commercial activity
exception, but considering independently whether to grant
defendant’s motion to dismiss for failure to state a cause of
action).
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Accordingly, Kirkham’s uncontested ticket purchase is the
only jurisdictional fact in this case. Because Air France
concedes the ticket sale constituted a commercial activity in the
United States, and because Kirkham must establish that sale in
order to prevail on the merits, the commercial activity exception
applies. We therefore affirm the district court’s finding of
subject matter jurisdiction under the FSIA.
So ordered.