concurring in the judgment:
Our holding today is narrow: Robinson’s failure to allege sufficiently a tort claim against Malaysia deprived the district court of jurisdiction to entertain this suit under 28 U.S.C. § 1605(a)(5), which extends jurisdiction only to non-discretionary torts. Concerned that some of the language of the majority’s opinion might be read to reach beyond this holding, I write to emphasize what we have decided and what has been left for another day.
The majority’s opinion correctly states that “[federal jurisdiction under this FSIA exception to immunity exists ... only if (i) the plaintiff claims some injury ‘caused by the tortious act or omission’ of a foreign state; and (ii) this act or omission was ‘non-discretionary.’ ” Ante, at 140. As the opinion observes, because “Robinson’s claim fails in the first respect [we] therefore need not determine whether it succeeds in the second.” Ante, at 140. The opinion ably explains that Robinson has failed to allege, under applicable New York law, that Malaysia has committed a tort against him. Ante, at 145-146. For that reason, the district court had no jurisdiction to hear Robinson’s claim under 28 U.S.C. § 1605(a)(5). It is unnecessary, *148therefore, to speculate on what might have become of Robinson’s complaint on this Fed.R.Civ.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction had Robinson sufficiently alleged that Malaysia had committed a tort.
Accordingly, I find no basis for the majority’s reference to the merits of Robinson’s claim or its suggestion that the district court could have reached the merits on this Fed.R.Civ.P. 12(b)(1) motion. I believe that the distinction between the sufficiency of Robinson’s allegations and whether those allegations have any merit is important because there is good reason to believe that jurisdiction under the non-discretionary tort exception — at least insofar as the “tort” is concerned — turns on a plaintiffs allegations, not on their ultimate merit.
I do not dispute the general proposition noted by the majority opinion that, when jurisdiction depends on certain facts, and the moving party under Fed.R.Civ. P.12(b)(l) challenges these facts, the courts can dig beneath the allegations to decide the necessary jurisdictional facts. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 68, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) (Scalia, J., concurring in part and concurring in the judgment) (“It is well ingrained in the law that subject-matter jurisdiction can be called into question ... by challenging the accuracy of the jurisdictional facts alleged.”). One clear example of this principle in the FSIA comes from the separate subsection that provides for jurisdiction over a foreign state that has waived its immunity from suit. 28 U.S.C. § 1605(a)(1). If a plaintiff, to establish jurisdiction, contends that a foreign state waived its immunity, a defendant can rightfully move under Fed.R.Civ.P. 12(b)(1), claiming it made no such waiver. The district court would then have to resolve this issue of fact as a jurisdictional matter. See, e.g., Phoenix Consulting, Inc. v. Angola, 216 F.3d 36, 41 (D.C.Cir.2000) (finding that “[t]he district court was required to resolve this factual dispute material to its subject matter jurisdiction” after plaintiff invoked the FSIA waiver exception and defendant responded by presenting evidence that the signature on the contract containing the waiver had been forged).
Congress, in enacting the FSIA, required different facts to establish jurisdiction under the statute’s various subsections. Our task in construing what jurisdictional facts are required under 28 U.S.C. § 1605(a)(5) is one of statutory interpretation. The majority opinion’s mention of the merits of Robinson’s tort claim-and not just Robinson’s allegations-focúses attention on the statutory phrase “the tortious act or omission of that foreign state,” as a jurisdictional prerequisite of 28 U.S.C. § 1605(a)(5). Although this reading is consonant with the text, I have found no court that has adopted the view that jurisdiction under 28 U.S.C. § 1605(a)(5) depends upon whether the plaintiff has a meritorious tort claim. Such an approach would lead a district court to decide the merits of the case in order to determine whether it had jurisdiction to decide the merits. I also know of no other federal statute that requires such an approach to the jurisdictional issue. More to the point, this construction would empty of meaning the concept of immunity from suit, the cornerstone of the FSIA, by removing the jurisdictional gateway to the statute and allowing a determination on the merits before jurisdiction is established. I think all of these are indications that the majority’s suggested interpretation has gone astray. Cf. 5A ChaRles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1990) (“If ... a decision *149of the jurisdictional issue requires a ruling on the merits of the case, the decision should await a determination of the merits either by the court on a summary judgment motion or by the fact finder at trial.”).
A more plausible reading would frame the textual phrase “the tortious act or omission” within the earlier statutory language that concerns “any case ... in which money damages are sought” for personal injury resulting from the tort committed by a foreign state. 28 U.S.C. § 1605(a)(5). Under this reading, the initial jurisdictional fact that a plaintiff must show, before reaching the issue of whether the tort was non-discretionary, is whether the plaintiff has presented a tort claim against the foreign state. This construction reflects the understanding in the legislative history of the FSIA that Section 1605(a)(5) encompasses “claims for personal injury or death, or for damage to or loss of property, caused by the tortious act or omission of a foreign state.” H.R.Rep. No. 94-1487, at 21 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6619 (emphasis added); see also Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488 n. 11, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983) (referring to Section 1605(a)(5) as involving “actions for certain noncommercial torts within the United States”). One might complain that this sets the threshold so low as to diminish the value of foreign sovereign immunity, but I think this is the choice Congress made. The legislative history of the FSIA makes it clear that Congress intended to treat foreign states the same as any other defendant in certain tort cases, stating that “[t]he purpose of section 1605(a)(5) is to permit the victim of a traffic accident or other noncommercial tort to maintain an action against the foreign state to the extent otherwise 'provided by law.” H.R.Rep. No. 94-1487, at 21 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6620 (emphasis added).
Final resolution of this issue of statutory interpretation can await another day.1 Our holding today depends on the much simpler proposition that because Robinson did not sufficiently allege that Malaysia had committed a tort, Robinson cannot avail himself of the FSIA’s exception to immunity for non-discretionary torts and, therefore, the district court did not err in granting Malaysia’s Rule 12(b)(1) motion.
. This day may not be swift in coming. Litigants more commonly arrive at the result produced by this Fed.R.Civ.P. 12(b)(1) motion for lack of subject matter jurisdiction by moving early for dismissal under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, or later for summary judgment under Fed.R.Civ.P. 56.