Souryal v. Torres Advanced Enterprise Solutions, LLC.
Filing
63
MEMORANDUM OPINION Re: 31 MOTION to Dismiss First-Amended Complaint by Torres Advanced Enterprise Solutions, LLC. Signed by District Judge T. S. Ellis, III on 2/6/2012. (stas)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
SHIRLEY SOURYAL,
Plaintiff,
)
)
)
v.
TORRES ADVANCED ENTERPRISE
SOLUTIONS, LLC,
Defendant.
)
)
)
)
)
Case No. I:llcv643
MEMORANDUM OPINION
Plaintiff alleges that her former employer violated the Family and Medical Leave Act of
1993, 29 U.S.C. § 2601 el seq. ("FMLA") by refusing to return plaintiff to her former position at
the U.S. Embassy in Baghdad, Iraq, and then by terminating her, after she had taken medical
leave. At issue on a motion to dismiss for failure to state a claim is whether the FMLA affords
rights to an employee where, as here, the employee's worksite is outside the territory of the
United States. Because the Embassy in Baghdad is not a U.S. territory, and because Congress, in
light of the presumption against the extraterritorial effect of statutes, cannot be assumed to have
intended the rights afforded by the FMLA to have extraterritorial application, plaintiff, whose
worksite was outside U.S. territory, is not entitled to any rights under the FMLA. Thus,
plaintiffs FMLA claim must be dismissed.
I.
Plaintiff Shirley Souryal ("Souryal") is a resident of Virginia and a former employee of
defendant Torres Advanced Enterprise Solutions, LLC. ("Torres"), a consulting firm
headquartered in Falls Church, Virginia.1 During Souryal's employment at Torres, Torres
contracted with the U.S. Department of State (the "State Department") to provide administrative
support and otherservices at various locations, including the U.S. Embassy in Baghdad, Iraq (the
"Embassy"). Souryal began working at Torres in August 2007 as an Organizational
Development Specialist assigned to the Embassy. During her work assignment at the Embassy,
Souryal became ill. On May 4, 2009, she sought medical attention at the Embassy Medical Unit
and was diagnosed with bronchitis. She visited the Embassy Medical Unit again several days
later, and the treating physician prescribed antibiotics and steroids. Her condition continued to
deteriorate as she suffered from "labored breathing, fever, inability to swallow, severe fatigue
and sleep deprivation." Amend. Compl. 1| 26. On May 14, 2009, Souryal was taken to a nearby
military hospital and then, after the hospital denied her admission, to a small medical clinic in
Baghdad. A physician at this clinic assessed Souryal's condition and directed Souryal (i) to
remain quarantined in her quarters in the Embassy compound and (ii) to return regularly to the
clinic for treatments, which included IV injections of fluids and antibiotics.
Over the next few weeks, Souryal performed some work remotely from her quarters in
the Embassy compound. During this time, various Torres and State Department employees,
including her immediate supervisor, State Department employee April Powell-Willingham, and
Torres Deputy Program Manager Joyce Gammelco, received regular updates on Souryal's
medical condition. On June 2, 2009, Dwight Samuels, General Services Officer for the State
Department, recommended to Souryal that she seek medical evacuation from Baghdad on
account of her illness. Powell-Willingham concurred in Samuel's recommendation. Later that
1The facts recited here are taken from the allegations in the First Amended Complaint, which are
treated as true solely for the purpose of deciding the instant dismissal motion. See Ashcrofl v.
Iqbal. 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009).
clay, Gammelco told Souryal that Torres had been informed of Souryal's situation, but that
Souryal was responsible for making her own arrangements to leave Iraq and should not expect
assistance from Torres. Souryal departed Baghdad the following day and received additional
medical treatment in Cairo, Egypt. Torres stopped paying Souryal on June 4th, the date she
departed Baghdad.
On June 15, 2009, Powell-Willingham asked Souryal when Souryal could report for
work. Souryal responded that she was eager to do so, but that she could not estimate when her
medical issues would be resolved. On June 24, 2009, Karie Ncwmycr, Torres' Human
Resources Director, told Souryal that "her services were no longer needed at the Embassy."
Amend. Compl. 1| 66. After Souryal's treating physician in Egypt discharged her from his care
on June 28, 2009, Souryal told Newmyer that she wanted to continue working at the Embassy.
Newmyer responded that there was no available position for Souryal and suggested that Souryal
return to the United States, which Souryal did on July 12, 2009. From this time until August
2010, Souryal made repeated requests to Newmyer and other Torres personnel that she be
restored to her former position or given a comparable position. Torres answered none of these
requests.
Souryal filed her original complaint against Torres on June 15, 2011 alleging that Torres
had violated the FMLA by not holding her employment position open, and later terminating her,
after she had taken medical leave. Specifically, Souryal alleged that the FMLA entitled her to
take medical leave, and that Torres' failure to restore her to her prior position and eventual
decision to terminate her violated the FMLA. The complaint also alleged that Torres had failed
to provide her with written notice ofher right to continuation medical coverage upon termination
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of her medical benefits in violation of the Employment Retirement Income Security Act of 1974,
29 U.S.C. § 1001 etseq. ("ERISA").
Torres moved to dismiss both claims in the original complaint pursuant to Rule 12(b)(6),
Fed. R. Civ. P. Following oral argument on the motion, an Order issued granting Souryal leave
to file an amended complaint with respect to both the FMLA and ERISA claims. Souryal v.
Torres Advanced Enter. Solutions, No. 1:1 lcv643 (E.D. Va. Oct. 28, 2011) ("October 28
Order"). On November 9, 2011, Souryal complied by filing her First Amended Complaint,
which Torres again moved to dismiss for failure to state a claim. The October 28 Order also
granted the parties leave to submit "supplemental legal memoranda addressing, inter alia,
whether the U.S. Embassy in Baghdad is a 'possession of the United Slates' pursuant to 29
C.F.R. § 825.105(b)." Id. Souryal and Torres complied by submitting supplemental
memoranda. By Order dated December 20, 2011, Souryal's FMLA claim was dismissed with
prejudice "because the FMLA docs not apply cxlraterritorially, irrespective of whether the U.S.
Embassy in Baghdad is a possession of the United States." Souryal v. Torres Advanced Enter.
Solutions, No. 1:1 lcv643 (E.D. Va. Dec. 20, 2011) ("December 20 Order"). This Memorandum
Opinion elucidates the reasons for that conclusion.
The December 20 Order dismissed Souryal's ERISA claim but granted her leave amend
her complaint yet again with respect to this claim. On January 4, 2012, Souryal filed her Second
Amended Complaint, which alleged additional facts pertinent to the ERISA claim. Torres'
motion to dismiss the Second Amended Complaint for failure to state a claim was denied by
Order dated January 31, 2012. Souryal v. Torres Advanced Enter. Solutions, No. 1:11 cv643
(E.D. Va. Jan. 31,2012).
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II.
Dismissal pursuant to Rule 12(b)(6), Fed. R. Civ. P., is appropriate where the complaint
does not "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting
Bell All. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To survive a Rule 12(b)(6) motion to
dismiss, a complaint must contain "more than an unadorned, the-dcfendant-unlawfully-harmed-
me accusation." Iqbal, 129 S. Ct. at 1949. And, in this respect, it is also true that "the tenet that
a court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions." Id. (emphasis added). AccordEastern Shore Markets v. J.D. Assocs. Ltd. P'ship,
213 F.3d 175, 180 (4th Cir. 2000). Thus, "[fjhreadbarc recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949.
Instead, the complaint must allege facts that, if true, plausibly satisfy each element of the claims
for which relief is sought. Id. at 1950.
III.
Torres argues that Souryal's FMLA claim must be dismissed because she was working
outside the territory of the United States and the FMLA has no extraterritorial effect. Whether
the FMLA has extraterritorial effect is an important, and as yet unresolved, question" that need
not be reached here unless it is first determined that the facts alleged in the complaint indeed
" As commentators have observed, there is no federal-court published decision that has expressly
decided this question. See, e.g., Aaron J. Schindel, Extraterritorial Application of U.S. Labor
andEmployment Laws, 13 Int'l L. Practician 47, 47 (2000); Carson Sprott, Note, Competitive
and Fair: The Casefor Exporting Stronger Extraterritorial Labor and Employment Protection,
33 Hastings Int'l & Comp. L. Rev. 479, 491-92 (2010). A recent decision of the U.S. District
Court for the District of Columbia decided this question only implicitly. See Hodge v. United
Airlines, —F. Supp. 2d —, 2011 WL 5024176. at *16 (D.D*.C. Oct. 21, 2011) (treating
application of 29 C.F.R. § 825.800 as dispositive and dismissing an FMLA claim where "no
reasonable jury could conclude that [plaintiff] was employed in the United States" within the
meaning of that regulation).
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reflect an attempt to apply the FMLA extraterritorially. This threshold matter arises here
because Souryal's worksite prior to her termination was at the Embassy in Baghdad, whereas the
employer's allegedly violative actions may well have occurred in the United States. The
determination whether Souryal's complaint indeed attempts to apply the FMLA extraterritorially
involves a two-step inquiry. At the first step, it is necessary to resolve whether extraterritoriality
analysis is triggered by (i) plaintiffs worksite location or (ii) by the locus of the employment
actions alleged to be violative of the FMLA. If the answer to this first question is the locus of
the employment decision, then the FMLA's extraterritorial effect is not implicated and the
analysis ends. But, if it is plaintiffs worksite that triggers whether plaintiff seeks extraterritorial
application of the FMLA, then the second step of the inquiry must be addressed. At this step, it
is necessary to address whether the Embassy is within the territory of the United States. Only if
the Embassy is not within the territory of the United States is the FMLA's extraterritorial effect
implicated.
At the first step, Supreme Court precedent, although not squarely apposite, points
persuasively, by implication, to the conclusion that an employee's FMLA claims against her
employer necessarily involve an attempt to apply the statute extraterritorially when the
employee's worksite is outside U.S. territory. In Foley Brothers v. Filardo, the Supreme Court
held that the eight-hour provision of the Fair Labor Standards Act ("FLSA") was "inapplicable to
a contract for the construction of public works in a foreign countryf.]" 336 U.S. 281, 290-91
(1949). In reaching this conclusion, the Supreme Court framed its analysis of FLSA's
extraterritorial application in terms of whether Congress intended "to make the law applicable to
. . . workperformed inforeign countries." Id. at 284-85 (emphasis added). Decades later in
EEOCv. Arabian American Oil Co. (Aramco), the Supreme Court held that Title VII of the Civil
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Rights Act of 1964 did not "regulate the employment practices of United States employers who
employ United States citizens abroad." 499 U.S. 244, 246-47 (1991). In arriving at that
conclusion, the Supreme Court understood that its "task" with respect to its assessment of Title
Vlfs extraterritorial effect was "to determine whether Congress intended the protections of Title
VII to apply to United States citizens employed by American employers outside ofthe United
Stales" 499 U.S. at 248 (emphasis added).
Thus, although neither decision squarely addresses the question, it is clear that in both
Foley Brothers and Aramco, the Supreme Court's extraterritoriality analysis was triggered not by
the place of the employer's decision, but rather by the claimant's worksite location. The
conclusion that the worksite location determines whether a statute's extraterritorial effect is
implicated also comports with common sense; no matter where the allegedly unlawful decision is
made, it is implemented at the claimant's worksite, and the claimant experiences the decision's
effects at that worksite. Nor does it matter that Foley Brothers and Aramco involved FLSA and
Title VII respectively, as there is no reason in principle that the Supreme Court's analysis in
those contexts should be any different from the analysis in the FMLA context. In sum, therefore,
it is the worksite location that triggers analysis of the FMLA's extraterritorial effect.
Given this, it is necessary to consider whether the Embassy is a U.S. territory. An exact
definition of "U.S. territory" is not found in the cases on extraterritorial effect of federal statutes,
but it can be generally said that a region constitutes a U.S. territory if the U.S. has jurisdiction to
regulate conduct by virtue of the conduct occurring within that region. See Foley Bros.. 336 U.S.
at 285 (holding that 8-hour provision of FLSA does not apply outside "places over which the
United States has sovereignty or has some measure of legislative control"). As the Supreme
Court has put it, territorial jurisdiction exists if the region is "a territory of the United States in a
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political sense, that is, a part of its national domain." Vermilya-Brown Co. v. Connell, 335 U.S.
377, 380-81 (1948). Thus, the touchstone of whether a particular region is a U.S. territory is
presence, extent, and exercise of U.S. sovereignty "in a political sense"3 over that region. See
Foley Bros., 336 U.S. at 286.
From this, it follows that the Embassy is not a U.S. territory. Some courts in other
contexts have reached a similar conclusion. See United States v. Ayesh, 762 F. Supp. 2d 832,
837 n.2 (E.D. Va. 2011) ("Indeed, ordinary territorial jurisdiction . . . does not embrace United
States embassies abroad.") (citing United States v. Passaro, 577 F.3d 207. 212 (4th Cir. 2009)).
Although the United Slates may own a fee simple interest in the land on which the Embassy
compound sits, the United States does not exercise political sovereignty over that land. This
conclusion is consistent with the longstanding (and often misunderstood) international-relations
doctrine that the law of the receiving country, i.e., the country in which the embassy sits, governs
activities inside the embassy absent some other agreement. See United States v. Gatlin, 217 F.3d
207, 214 (2d Cir. 2000) (citing 1 Oppenheim 's InternationalLaw § 558, at 1157 (Robert
Jennings & Arthur Watts cds., 9th ed. 1992) ("The view, formerly widely held, that the
[diplomatic] force was in all respects lo be regarded as beyond the jurisdiction of the territorial
stale ... and subject only to that of its own authorities can no longer be maintained.") (footnote
omitted)). The Restatement puts the point clearly and directly in the following terms:
The status of diplomatic premises arises from the rules of law relating to
immunity from the prescriptive and enforcement jurisdiction of the
receiving state; the premises are not a part ofthe territory ofthe sending
state.
Restatement (Second) ofForeign Relations Law ofthe United Slates § 77 cmt. a (1965)
(emphasis added). Neither the Slatus of Forces Agreement nor any other provision of law
3 Vermilya-Brown, 335 U.S. at 381.
purports to confer U.S. jurisdiction over activities inside U.S. diplomatic missions on Iraqi soil.
Thus, it is clear that "United States embassies," including the Embassy in Baghdad, "are not
within the territorial jurisdiction of the United States." McKeel v. Islamic Repub. ofIran, 722
F.2d 582, 588 (9th Cir. 1983) (holding that U.S. embassy in Iran was not a U.S. territory for
purposes of the Foreign Sovereign Immunities Act).'1
Because Souryal's FMLA claim depends on whether the statute applies extraterritorially,
the question of the FMLA's extraterritorial reach is squarely presented here.
IV.
There is no doubt that Congress has the power to make the FMLA applicable to
employees of American contract employees working at U.S. embassies overseas; the question
presented here is whether Congress has exercised this power. See Aramco, 499 U.S. at 248. The
starting point in answering this question must be the statute itself, for "it is a matter of statutory
interpretation as to whether or not statutes are effective beyond the limits of national
sovereignty." Vermilya-Brown, 335 U.S. at 389-90 (noting further that a statute's extraterritorial
applicability "depends upon the purpose of the statute"). As it happens, however, the FMLA is
completely silent in this question. Given this, the next step in the analysis must be to consult the
interpretive canons that furnish the background against which Congress enacts statutes.
Here, the pertinent interpretive canon is the presumption against extraterritoriality, which
reflects the "longstanding principle of American law that legislation of Congress, unless a
contrary intent appears, is meant to apply only within the territorial jurisdiction of the United
States." Aramco, 499 U.S. at 248 (citation and internal quotation marks omitted). This
Almost forty years ago, the Fourth Circuit stated, in dictum, that American embassies are "part
of the territory of the United States." United States v. Erdos, 474 F.2d 157, 159 (4th Cir. 1973)
(quoting United States v. Archer, 51 F. Supp. 708, 709 (S.D. Cal. 1943)). As other courts have
explained, this understanding now appears to be outmoded. See, e.g., McKeel, 722 F.2d at 588.
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presumption "rests on the perception that Congress ordinarily legislates with respect to domestic,
not foreign matters." Morrison v. Nat 'I Australia Bank, — U.S. —, 130 S. Ct. 2869, 2877
(2010) (citingSmith v. United States, 507 U.S. 197, 204 n.5 (1993)). Consistent judicial
application of the presumption "preservfesj a stable background against which Congress can
legislate with predictable effects." Morrison, 130 S. Ct. at 3881. The presumption against
extraterritoriality "can be overcome only if there is an 'affirmative intention of the Congress
clearly expressed.'" Reyes-Gaona v. N.C. Growers Assoc, 250 F.3d 861, 864 (4th Cir. 2001)
(quoting Aramco, 499 U.S. at 248). Thus, it is presumed that Congress is "aware|J of the need to
make a clear statement that a statute applies overseas" if Congress so wishes. Aramco, 499 U.S.
at 258. Otherwise, "fwjhen a statute gives no clear indication of an extraterritorial application"-and the FMLA gives no such clear indication—"it has none." Morrison, 130 S. Ct. at 2878.
Nor is this a surprising or novel conclusion, given the history of the interplay between
Congress and the federal courts with respect to FLSA and Title VII. This history confirms that
when statutes are silent on their extraterritorial application, courts will not enforce them
extraterritorially. Where Congress intends that a statute apply to worksites abroad, it knows that
it must clearly say so. After the Supreme Court concluded in Vermilya-Brown that the
maximum-hour and minimum-wage requirements of the Fair Labor Standards Act applied to
workers on a U.S.-leased military base in Bermuda, Congress responded by amending FLSA to
restrict the reach of many of its protections to those working in the United States and several
specifically named U.S. territories. See Pub. L. No. 85-231, 71 Stat. 514 (1957), codified as
amended at 29 U.S.C. § 213(1). Decades later, after the Supreme Court held in Aramco that Title
VII lacked any extraterritorial application, Congress expressly abrogated the case by passing the
Civil Rights Act of 1991, which specifically provided for extraterritorial application of Title
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VII. Thus, because Congress has not clearly spoken on its extraterritorial application, the
FMLA docs not apply to employees working outside U.S. territory.
This result obtains notwithstanding a Labor Department regulation providing that "the
FMLA applies only to employees who arc employed within any . . . possession of the United
States." 29 C.F.R. § 825.105(b). Although some authority suggests that a U.S. Embassy might
constitute a "possession of the United Stales" under the FMLA,6 a regulation extending the
FMLA's application beyond U.S. territory would not be entitled to Chevron deference. This is
so because at the first step of Chevron analysis, "fi]f a court, employing traditional tools of
statutory construction, ascertains that Congress had an intention on the precise question at issue,
that intention is the law and must be given effect" notwithstanding a contrary agency rule.
Chevron, U.S.A. v. Nat. Res. Def Council, 467 U.S. 837, 842 n.9 (1984) (emphasis added).7 The
DThe Supreme Court in Aramco had applied the presumption against extraterritoriality to Title
VII and thus concluded that the statute did not apply extraterritorially, notwithstanding the
contrary position taken by the federal agency empowered to administer Title VII. Within months
of the Aramco decision's issuance, Congress enacted the Civil Rights Act of 1991 which, inter
alia, provided that the term "employee" under Title VII includes "[wjith respect to employment
in a foreign country ... an individual who is a citizen of the United States." 42 U.S.C. §
2000e(f), as amended by Pub. L. No. 102-166, § 109, 105 Stat. 1071.
See Vermilya-Brown, 335 U.S. 377 (holding that a U.S.-leased military base in Bermuda
constituted a "possession of the United States" for purposes of certain FLSA provisions). It is
worth noting, however, that the Vermilya-Brown decision prompted Congress to limit FLSA's
extraterritorial reach by statutory amendment. Moreover, the Supreme Court in Vermilya-Brown
acknowledged that the British government had expressly ceded some legislative control over the
leased land to the United States. See id. at 382 n.4 (noting that the agreement between the
United States and Great Britain provided that "[t]he United Stales shall have all the rights, power
and authority within the Leased Areas which are necessary for the establishment, use, operation
and defence thereof, or appropriate for their control"). By contrast, no provision of law gives the
United States any manner of legislative control over the land on which the Embassy sits.
7See Gen. Dynamic Land Sys. v. Cline, 540 U.S. 581, 600 (2004) ("Even for an agency able to
claim all the authority possible under Chevron, deference to its statutory interpretation is called
for only when the devices of judicial construction have been tried and found to yield no clear
sense of congressional intent.").
presumption against extraterritoriality, like other substantive canons, is undoubtedly one such
tool. Its application here points persuasively to the conclusion that because Congress legislates
against the background of the presumption, Congress has, in fact, "directly spoken to the precise
a
question at issue" by intending, through its silence, that the statute not apply extraterritorially.
Compare Llenderson v. INS, 157 F.3d 106, 129-30 (2d Cir. 1998) (rejecting agency
interpretation of federal statute at Chevron's first step in light of the presumption against
retroactivity).9 Accordingly, no regulation could "supply, on Congress's behalf, the clear
legislative intent required to overcome," in this case, the presumption against extraterritoriality.
Desiano v. Warner-Lambert & Co., 467 F.3d 85, 97 n.9 (2d Cir. 2006).
V.
In sum, because Congress, in the FMLA, has not expressed an intention contrary to the
presumption against extraterritoriality, it follows that the statute has no extraterritorial effect and
hence Souryal's FMLA claim must be dismissed.
8Chevron, 467 U.S. at 842.
9See also Pharm. Research &Mfgs. ofAm. v. Walsh, 538 U.S. 644, 680 n.4 (2003) (Thomas. J.
concurring) ("A court's conclusion that Maine Rx is pre-empted would require rejection of the
Secretary's contrary construction of the statute at Chevron's first step, not its second, which asks
whether the agency construction is reasonable."); In re Zyprexa Prods. Liab. Litig., 489 F. Supp.
2d 230, 273 (E.D.N.Y. 2007) ("'The FDA lacks the authority to supply the legislative intent
required to overcome the presumption against preemption in this case, removing it from those
agency interpretations that receive deference under Chevron").
Today's holding that the FMLA does not apply extraterritorially in no way suggests that this is
a sound policy result. Indeed, by choosing to remain silent on the FMLA's extraterritorial effect.
Congress has created an anomaly in that the FMLA's rights apply to State Department
employees working at the Embassy, but not to those U.S. citizens who, like Souryal, work
alongside those federal employees in similar capacities or under their supervision. In any event,
an extension of the FMLA's protections to U.S. citizens working abroad cannot be effected by
the executive or judicial branches. Nonetheless, only Congress can eliminate this anomaly by
extending the FMLA's reach, as it did with respect to Title VII after the Supreme Court in
Aramco held that Title VII did not apply extraterritorially.
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An appropriate Order has issued.
Alexandria, Virginia
February 6, 2012
/:
T. S. Ellis, III
United States District Judge
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