O:\Slip\WP\2005\04-7209.wpd

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

LISABETH KIRKHAM,

PPELLEE

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

ILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

ATEL, Circuit Judge: Under the Foreign Sovereign

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.

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.

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.

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,

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

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

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

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).

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.