OBB Personenverkehr AG v. Sachs - Oral Argument - October 05, 2015

OBB Personenverkehr AG v. Sachs

Media for OBB Personenverkehr AG v. Sachs

Audio Transcription for Opinion Announcement - December 01, 2015 in OBB Personenverkehr AG v. Sachs

Audio Transcription for Oral Argument - October 05, 2015 in OBB Personenverkehr AG v. Sachs

John G. Roberts, Jr.:

We'll hear argument first this morning, first this term, in Case 13-1067, OBB Personenverkehr v. Sachs. Mr. Basombrio.

Juan C. Basombrio:

Mr. Chief Justice, and may it please the Court: This personal injury action is based upon an accident that occurred in Austria.

If this Court agrees, there's no need to reach the other question related to agency, so I will start first with the based-upon issue. In Nelson, this Court set forth a framework to analyze the based-upon question.

And this Court held that courts must begin their analysis by identifying the particular conduct on which the action is based.

The decision uses words such as basis, foundation, and gravamen.

So here --

Ruth Bader Ginsburg:

But in -- in that case, there was a distinction between State activity -- that is, police activity -- and the commercial activity in hiring the plaintiff.

Here, I think it's conceded that the activity -- running a railroad -- that's commercial. So we don't have the commercial/State action division.

Juan C. Basombrio:

Yes, Your Honor, that's correct.

Here, there are two alleged commercial activities.

One of them is the sale of the ticket in the United States, and the other one are the acts and omissions that resulted in the accident in Austria. So what I would suggest is that we look at the complaint and see what it is that the plaintiff has alleged.

Anthony M. Kennedy:

Just as a matter of background, suppose a hypothetical case -- no foreign sovereign.

It was a private corporation in Austria. Would there then be jurisdiction under the Due Process Clause in your view? You don't have to prevail on -- on that issue, but as a background issue, what -- do you have a position?

Juan C. Basombrio:

Our position is that if OBB was a private entity, there would not be jurisdiction over OBB.

There would not be general jurisdiction after this Court holding in Daimler and there would also --

Anthony M. Kennedy:

And Daimler is your best case for that proposition?

Juan C. Basombrio:

Yes, Your Honor.

Elena Kagan:

Do -- do you think that it's the same test? In other words, is the test a specific jurisdiction test here, based-on, arising-from, that we are basically asking the same question as we would be asking if this were a -- a foreign corporation?

Juan C. Basombrio:

I don't believe so, Your Honor.

Let me explain, if I may, why not.

Congress could have chosen that wording in the personal jurisdiction analysis in the case law, but they decided on another phrase, based-upon, instead.

So I believe that what this Court needs to do is give some guidance --

Elena Kagan:

Well, the why -- I mean, it doesn't seem to me that that wording is very different from the wording that we've used in specific jurisdiction cases.

The wording here is "based on" -- we've used "arising out of." Sometimes we've used "related to." In some respects -- I mean, it's pretty clear that the FSIA is meant to ensure that when a foreign government is acting as a commercial actor, it gets treated like a foreign corporation.

And the language here is very similar, right? There's the insistence on a sufficient contact, a minimum contact, and then there is the insistence on a particular kind of relationship between that contact -- contact and the claim. So it seems -- I guess the question is: Why should we think of these two questions as at all different? And I don't know, by the way, I mean, that it would hurt you if they were the same, because it might just be there would be no specific jurisdiction here, you know? But I guess I'm having trouble of thinking why it is that there -- that there would be a different test.

Juan C. Basombrio:

The reason why is because the FSIA takes place of the -- both the subject matter jurisdiction analysis and the personal jurisdiction analysis.

Both are combined into one test.

So although I would agree certainly that some aspects of the personal jurisdictional analysis are part of that test, it goes beyond that.

It also goes into subject matter jurisdiction which is a different set of policy determinations that Congress made that are in some way overlapping of the personal jurisdiction questions, but I don't think they're completely aligned.

Sonia Sotomayor:

I'm -- I'm sorry. I'm -- I don't even understand why we're talking about based-upon. As Justice Ginsburg said, there's no dispute here that whether the based-upon is the ticket sale or the operation of the train, both of them are commercial activities. Isn't the work in substantial contact with the United States? Isn't that what we should be looking at instead? Was this commercial activity substantial enough? The operation of the train and the ticket sale here, did it have a substantial contact with the United States?