366
White, J., concurring in judgment
whistle-blowing is not a practice foreign to the marketplace.1 Congress passed a statute in response to such behavior, see Whistleblower Protection Act of 1989, 5 U. S. C. § 1213 et seq. (1988 ed., Supp. III), as have numerous States. On occasion, private employers also have been known to retaliate by enlisting the help of police officers to falsely arrest employees. See, e. g., Rosario v. Amalgamated Ladies Garment Cutters' Union, 605 F. 2d 1228, 1233, 1247-1248 (CA2 1979), cert. denied, 446 U. S. 919 (1980). More generally, private parties have been held liable for conspiring with public authorities to effectuate an arrest, see, e. g., Adickes v. S. H. Kress & Co., 398 U. S. 144 (1970), and for using private security personnel for the same purposes, see Albright v. Longview Police Dept., 884 F. 2d 835, 841-842 (CA5 1989).
Therefore, had the hospital retaliated against Nelson by hiring thugs to do the job, I assume the majority—no longer able to describe this conduct as "a foreign state's exercise of the power of its police," ante, at 361—would consent to calling it "commercial." For, in such circumstances, the state-run hospital would be operating as any private participant in the marketplace and respondents' action would be based on the operation by Saudi Arabia's agents of a commercial business.2
1 See, e. g., English v. General Electric Co., 496 U. S. 72, 75-76 (1990); Belline v. K-Mart Corp., 940 F. 2d 184, 186-189 (CA7 1991); White v. General Motors Corp., 908 F. 2d 669, 671 (CA10 1990), cert. denied, 498 U. S. 1069 (1991); Sanchez v. Unemployment Ins. Appeals Bd., 36 Cal. 3d 575, 685 P. 2d 61 (1984); Collier v. Superior Court of Los Angeles County, 228 Cal. App. 3d 1117, 279 Cal. Rptr. 453 (1991).
2 "[W]hen the foreign state enters the marketplace or when it acts as a private party, there is no justification in modern international law for allowing the foreign state to avoid the economic costs of . . . the accidents which it may cause. . . . The law should not permit the foreign state to shift these everyday burdens of the marketplace onto the shoulders of private parties." Testimony of Monroe Leigh, Legal Adviser, Department of State, Hearings on H. R. 11315 before the Subcommittee on Administrative Law and Governmental Relations of the House Committee on the Judiciary, 94th Cong., 2d Sess., 27 (1976).
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