Salman v. Saudi Arabian Cultural Mission

Filing 26

MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 01/17/2017. (mpha)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
ISLAM E. SALMAN,
Plaintiff,
v.
SAUDI ARABIAN CULTURAL
MISSION,
Defendant.

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M E M O R A N D U M

Case No. 1:16cv1033 (JCC/IDD)

O P I N I O N

This matter is before the Court on Defendant Saudi
Arabian Cultural Mission (SACM)’s Motion to Dismiss [Dkt. 18].
Defendant claims that this Court lacks jurisdiction over
Plaintiff Islam E. Salman’s claims under the Foreign Sovereign
Immunities Act (“FSIA”), 28 U.S.C. § 1602, et seq.
agrees.

The Court

Accordingly, the Court will grant Defendant’s Motion

and dismiss this case.
I. Background
Defendant is “an organization created by the Saudi
government in 1951 to administer programs and policies to meet
the educational and cultural needs of Saudis studying in the
United States.”

Compl. [Dkt. 1] ¶ 9.

“[T]he Cultural Mission’s

primary function is to provide an educational experience to

Saudi Arabian citizen-students studying in the United States
that mirrors those services provided by the Kingdom of Saudi
Arabia to its citizens enrolled in universities within the
Kingdom, including paying tuition, room/board, and health
insurance and offering guidance and counseling in course
selection.”

Mem. in Supp. of Mot. to Dismiss [Dkt. 22] at 6.

In July of 2013, Defendant hired Plaintiff, a U.S.
citizen, to serve as an academic advisor.

Both the offer of

employment Plaintiff received and the Personnel Guidelines
provided with that letter made numerous references to United
States employment laws.

Plaintiff’s duties included disbursing

financial aid to Saudi Arabian students in the United States,
evaluating students’ continued eligibility for funding, and
visiting colleges and universities to “improv[e] business
processes and confirm[ ] rules regarding scholarship
eligibility.”

Pl. Decl. [Dkt. 21-1] ¶ 8.

Plaintiff also

“assess[ed] students’ needs, goals, interests, and prior
academic experiences in order to guide students in the design
and implementation of a successful academic plan.”

Compl. [Dkt.

1] ¶ 12.
Plaintiff alleges that at some point during his
employment, his coworker – Ms. Luma Hawamdah – began sexually
harassing him.

She allegedly made unwelcome advances, touching

Plaintiff inappropriately and requesting sexual favors.
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When

Plaintiff rejected her overtures, Ms. Hawamdah became hostile
and verbally abusive.

Plaintiff moved to a different office in

an effort to avoid her, but the harassment continued.
On May 15, 2015, Plaintiff sent a letter to his
superior, Dr. Mohammed Saleh Amaifi, detailing the alleged
harassment in accordance with Section 1.5 of SACM’s Personnel
Guidelines.

This led to a meeting on May 29, 2015, at which

Plaintiff presented his grievance to SACM’s administration.
Rather than addressing the harassment, however, SACM allegedly
informed Plaintiff that he would be required to sign a letter
stating that the matter had been resolved.

SACM further

threatened Plaintiff with termination should he pursue the
matter further.

Under duress, Plaintiff provided SACM with a

letter stating that his personal issues with Ms. Hawamdah had
been resolved.
On June 4, 2015, Plaintiff received a letter from a
superior chastising him for wasting SACM’s time with his
complaint and stating that Plaintiff would face consequences if
he raised the issue again.

Four days later, Plaintiff replied

with his own letter reiterating his claims of harassment and
asking the reopen the matter.

Within hours, security arrived at

Plaintiff’s office, instructed him to clear out his work space,
and proceeded to escort Plaintiff out of the building.

The

following week, Plaintiff had a meeting with SACM at which he
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received a final warning to drop the matter.

Plaintiff chose

instead to retain counsel and pursue his harassment claim.
Defendant terminated his employment on June 16, 2015, refusing
to provide Plaintiff with materials that would have enabled him
to obtain unemployment benefits.
On November 3, 2015, Plaintiff filed a claim of
discrimination with the EEOC.

The agency issued Plaintiff a

Notice of Right to Sue Letter on May 17, 2016, and Plaintiff
filed the instant action on August 12, 2016.

On December 2,

2016, Defendant moved to dismiss Plaintiff’s Complaint, claiming
that the Court lacks subject matter jurisdiction under the FSIA.
II. Legal Standard
A motion filed pursuant to Rule 12(b)(1) challenges
the Court’s subject matter jurisdiction over the pending action.
The burden of proving subject matter jurisdiction falls on the
plaintiff.

McNutt v. General Motors Acceptance Corp., 298 U.S.

178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.
1982).

Where, as here, “a Rule 12(b)(1) motion challenge is

raised to the factual basis for subject matter jurisdiction
. . . the district court is to regard the pleadings’ allegations
as mere evidence on the issue, and may consider evidence outside
the pleadings without converting the proceeding to one for
summary judgment.”

Richmond, Fredericksburg & Potomac R. Co. v.

United States, 945 F.2d 765, 768 (4th Cir. 1991).
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If “‘the

motion to dismiss is based on a claim of foreign sovereign
immunity, which provides protection from suit and not merely a
defense to liability, . . . the court must engage in sufficient
pretrial factual and legal determinations to satisfy itself of
its authority to hear the case before trial.’”

Velasco v. Gov't

Of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004) (quoting
Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020,
1027–28 (D.C. Cir.1997)).
III. Analysis
“The FSIA provides the sole source of subject matter
jurisdiction in suits against a foreign state.”

Velasco v.

Gov’t of Indonesia, 370 F.3d 392, 397 (4th Cir. 2004).

It holds

that “a foreign state shall be immune from the jurisdiction of
the courts of the United States and of the States” subject to
certain enumerated exceptions.

28 U.S.C. § 1604; see also Saudi

Arabia v. Nelson, 507 U.S. 349, 355 (1993) (“Under the [FSIA], a
foreign state is presumptively immune from the jurisdiction of
United States courts; unless a specified exception applies, a
federal court lacks subject-matter jurisdiction over a claim
against a foreign state.”).
Plaintiff concedes that, as a diplomatic and cultural
mission of Saudi Arabia recognized by the U.S. Department of
State, Defendant qualifies as a “foreign state” for purposes of

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the FSIA.

He argues, however, that two exceptions to the FSIA

permit this Court jurisdiction over his claims.
Plaintiff cites first to the FSIA’s implied waiver
exception, which provides that “[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 foreign state has
waived its immunity either explicitly or by implication[.]”
U.S.C. § 1605(a)(1).

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The Fourth Circuit has noted that

“[w]aiver under the FSIA is rarely accomplished by implication”
and that “courts have consistently held that the implicit waiver
provision of § 1605(a)(1) must be construed narrowly.”
Tamimi, 176 F.3d 274, 278 (4th Cir. 1999).

In re

Waiver may only be

implied if the Court finds “strong, unmistakable evidence that”
a foreign state “intended to waive its sovereign immunity.”
at 279.

Id.

Courts have been reluctant to find implied waiver

outside of three situations found in the FSIA’s legislative
history: “(1) a foreign state has agreed to arbitration in
another country; (2) a foreign state has agreed that a contract
is governed by the law of a particular country; and (3) a
foreign state has filed a responsive pleading in a case without
raising the defense of sovereign immunity.”

Id. at 278 (citing

H.R. Rep. No. 1487, 94th Cong., 2d Sess. 18).
Plaintiff invokes the second situation, contending
that the “Contract Offer” he received from SACM and SACM’s
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Personnel Guidelines demonstrate that Defendant intended
Plaintiff’s employment contract to be governed by United States
law.

In particular, Plaintiff points to (1) Section 4.4 of the

Personnel Guidelines, which states that “the Cultural Mission is
committed to observing the salary basis of the FLSA,” (2) the
portion of the “Contract Offer” stating that SACM “prohibits
discrimination and harassment on the basis of any classification
protected by Federal, State or local law,” and (3) Section 1.4
of the Personnel Guidelines, which similarly notes that SACM
“prohibit[s] . . . conduct that might be construed as sexual
harassment (all as defined and protected by applicable law).”
As an initial matter, it does not appear that SACM’s
Personnel Guidelines give rise to a binding contract.

Section

1.1 states that “[n]othing in the Personnel Guidelines
constitutes an expressed [sic] or implied contract of employment
or warranty of any compensation or benefits.”

Such a disclaimer

generally prevents an employee handbook from being construed as
a contract of employment.

See, e.g., Dodge v. CDW-Gov’t, Inc.,

415 F. App’x 485, 487–88 (4th Cir. 2011).

SACM’s Personnel

Guidelines are therefore an awkward fit for the second implied
waiver exception to the FSIA.
Even assuming that both the “Contract Offer” and
Personnel Guidelines constitute a contract, neither includes
sufficiently “strong, unmistakable evidence” that Defendant
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“intended to waive its sovereign immunity.”
F.3d at 279.

In re Tamimi, 176

Both documents refer to United States law, but

neither includes an express choice-of-law provision, as is
generally the case when Courts find implied waiver.

See, e.g.,

Eckert Int’l, Inc. v. Gov’t of Sovereign Democratic Republic of
Fiji, 32 F.3d 77, 80 (4th Cir. 1994); Ashraf-Hassan v. Embassy
of France in the United States, 40 F. Supp. 3d 94, 100 (D.D.C.
2014).

To hold that merely referencing United States law

effectuates a waiver of sovereign immunity would greatly expand
the narrow exception of implied waiver under the FSIA.1
The cases upon which Plaintiff relies fail to support
his position.

Plaintiff cites to Transamerican S.S. Corp. v.

Somali Democratic Republic, 767 F.2d 998, 1006 (D.C. Cir. 1985),
claiming that the court in that case found implied waiver based
on a contractual term stating a foreign sovereign agreed to
abide by the “terms and conditions . . . of AID Regulation 11.”
Plaintiff, however, is citing a concurrence; the district court
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Moreover, both documents may be construed as simply
stating that SACM endeavors to voluntarily conform its behavior
to United States employment law. For example, Section 4.4 of
the Personnel Guidelines says that “the Cultural Mission is
committed to observing the salary basis of the FLSA.” This
phrasing implies voluntary compliance with a law that is
mandatory for other employers in the United States. Similarly,
both documents state only that it is SACM’s internal policy to
forbid forms of discrimination and harassment prohibited by
United States law. This language does not rise to the level of
“unmistakable” and “unambiguous” evidence that Defendant
intended to subject itself to the jurisdiction of this Court.
In re Tamimi, 176 F.3d at 278–79.
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rejected that argument, and the panel majority declined to reach
the question.

See id. at 1002 n.3.

Moreover, while the court

in Ashraf-Hassan v. Embassy of France in the United States, 40
F. Supp. 3d 94, 97 (D.D.C. 2014), found an implied waiver, it
did so on the basis of a contractual provision that expressly
“stipulated that [the contract] was to be governed by local
law.”

As discussed above, Plaintiff directs the Court’s

attention to no such choice-of-law provision in the “Contract
Offer” or Personnel Guidelines.
Waiver under the FSIA is not lightly implied.

Because

the “Contract Offer” and Personnel Guidelines Plaintiff cites do
not unambiguously demonstrate that SACM intended to waive its
immunity with respect to Plaintiff’s employment, the Court finds
that the implied waiver exception does not apply here.
Plaintiff argues in the alternative that this case
falls within the commercial activity exception to the FSIA.
That exception holds that “[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).

The FSIA specifies

that “[t]he commercial character of an activity shall be
determined by reference to the nature of the course of conduct
or particular transaction or act, rather than by reference to
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its purpose.”

Id. § 1603(d).2

“[W]hen a foreign government

acts, not as regulator of a market, but in the manner of a
private player within it, the foreign sovereign’s actions are
‘commercial’ within the meaning of the FSIA.”

Republic of

Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992).
Plaintiff was tasked with, among other things,
disbursing financial aid to Saudi students in the United States,
evaluating students’ continued eligibility for funding, and
providing students with academic guidance.
21-1] ¶ 8; Compl. [Dkt. 1] ¶ 12.

See Pl. Decl. [Dkt.

Plaintiff contends that

because these services are regularly provided by private
universities, this case falls within the commercial activity
exception to the FSIA.

When evaluating the FSIA’s commercial

activity exception, however, the question is not whether an
individual employed by a foreign state performed job functions
with an analogue in the private sector.

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Rather, the inquiry

As the Fifth Circuit has observed, a strict separation
of “nature” and “purpose” is impossible in some cases. See De
Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385, 1393 (5th
Cir.1985) (“[W]e do not believe that an absolute separation is
always possible between the ontology and the teleology of an
act. Often, the essence of an act is defined by its purpose –
gift-giving, for example.”). The Court notes as well that
“[t]he House Report on the bill that became the FSIA explicitly
asserts the congressional intention to leave to the ‘courts
. . . a great deal of latitude in determining what is a
‘commercial activity’ for purposes of [the FSIA].’” Kato v.
Ishihara, 360 F.3d 106, 110 (2d Cir. 2004) (quoting H.R.Rep. No.
94-1487, at 16 (1976)).
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centers on the nature of the conduct undertaken by the foreign
state itself and the individual’s role in that activity.
Take, for example, Butters v. Vance International,
Inc., 225 F.3d 462 (4th Cir. 2000).

In Butters, a private

security contractor tasked with protecting the Saudi royal
family was, at the direction of the Saudi government, denied a
promotion due to her gender.

See id. at 464.

She sued her

employer, a private security firm, which was found to enjoy
derivative immunity under the FSIA for decisions made by its
foreign sovereign client.

See id. at 466.

The plaintiff

contended that the commercial activity exception applied because
she and the security firm “provided personal and residential
protection services” to the Saudi royal family “just as they
might to any other client.”

Brief of Appellant, Butters v.

Vance International, Inc., 225 F.3d 462 (4th Cir. 2000), 1999 WL
33636312, at * 26.

The Fourth Circuit rejected this argument,

focusing instead on the activity undertaken by the foreign state
in employing the security firm.

Finding the relevant activity

to be the foreign state’s efforts to “secure the safety of its
leaders,” the Court deemed the activity in question
“quintessentially an act ‘peculiar to sovereigns.’”

Butters,

225 F.3d at 465 (quoting Saudi Arabia v. Nelson, 507 U.S. 349,
361 (1993)).

Accordingly, the Court found that the case did not

fall within the commercial activity exception to the FSIA.
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See

id; see also Crum v. Kingdom of Saudi Arabia, No. CIV.A. 05-275,
2005 WL 3752271, at *4 (E.D. Va. July 13, 2005) (“An embassy’s
decision to hire a limousine driver to transport embassy
officials, their families and guests, and meet its everyday
needs does not” fall within the commercial activity exception to
the FSIA.).
Similarly, the plaintiff in Kato v. Ishihara, 360 F.3d
106, 109 (2d Cir. 2004), was employed by Tokyo’s government and
tasked with “promotional activities on behalf of Japanese
companies, such as manning booths at trade shows to promote
specific products,” and “creat[ing] marketing reports of
interest to Japanese companies.”

Alleging that she had been

sexually harassed, the plaintiff filed suit against her
employer, arguing that her case fell within the commercial
activity exception to the FSIA.

See id. at 109.

The Second

Circuit held otherwise, finding that the “superficial[ ]
similar[ity]” of her job to that of a private marketing
professional was belied by the fact that her work consisted of
promoting Japanese business interests generally.

See id. at

111-12 (“Although a private Japanese business might engage in
these activities on its own behalf – for example, by sending its
representatives to trade shows in the United States to promote
its products – such a business would not typically undertake the
promotion of other Japanese businesses, or the promotion of
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Japanese business interests in general.”).

Finding that “[t]he

promotion abroad of the commerce of domestic firms is a basic –
even quintessential – governmental function,” the court
determined that the commercial activity exception to the FSIA
did not apply.

Id. at 112.

Here, it is true that the services Plaintiff performed
at SACM bore some superficial similarity to those offered at
private institutions in the United States.

The difference,

however, is that a free college education is a public benefit in
Saudi Arabia.
6.

See Mem. in Supp. of Mot. to Dismiss [Dkt. 22] at

Plaintiff was, at bottom, tasked with distributing a public

benefit to Saudi students studying in the United States.

A

foreign state’s distribution of public benefits to its citizens
is “quintessentially an act ‘peculiar to sovereigns,’” Butters,
225 F.3d at 465, much like securing the safety of political
leaders or promoting domestic commerce.
Saudi Arabia did not buy or sell anything, or engage
in any profit-driven activity.

See De Sanchez, 770 F.2d at 1393

(“[A]s Congress recognized, acts are commercial because they are
generally engaged in for profit.”).

Rather, it simply acted

through SACM to effectuate its educational policy, ensuring that
students studying abroad received precisely the same benefits as
their domestic counterparts.

This stands in stark contrast to

cases in which courts have found the commercial exception to
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apply.

For example, in Globe Nuclear Services and Supply

(GNSS), Ltd. v. AO Techsnabexport, 376 F.3d 282, 289 (4th Cir.
2004), the Fourth Circuit found the exception to apply to a
foreign state’s purchase of uranium, as “entrance into a
contract to supply a private party with uranium hexafluoride is
the very type of action by which private parties engage in
‘trade and traffic or commerce.’”

Similarly, in Republic of

Argentina v. Weltover, Inc., 504 U.S. 607, 615-16 (1992), the
Supreme Court deemed Argentina’s issuance of bonds called
“Bonods” to fall within the exception as “there [was] nothing
about the issuance of the[ ] Bonods (except perhaps its purpose)
that [was] not analogous to a private commercial transaction.”
These cases involved clear participation in a commercial
activity by a foreign state in a manner comparable a private
actor.

There is no similarly clear commercial element to SACM’s

activities.
Finally, the Court notes that in Butters, the Fourth
Circuit “decline[d] to require the Saudi government to justify
. . . the arrangements it believes are best suited to ensure the
safety of its royal family,” as such decisions may “have
political, cultural, and religious components” and “[j]udicial
interference with them would have serious foreign policy
ramifications for the United States.”

225 F.3d at 465.

is, to an extent, also true of Saudi Arabia’s choice of
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This

personnel implementing its educational policy.

The manner in

which Saudi Arabia facilitates and guides the education of its
youth has political, cultural, and religious dimensions.
Judicial interference here risks entangling the Court in matters
of foreign policy that are beyond its competence.
In light of the foregoing, the Court finds that the
commercial activity exception to the FSIA does not apply to this
action.
IV. Conclusion
As neither the implied waiver nor the commercial
activity exception applies to this action, the Court is without
jurisdiction to entertain it under the FSIA.
case must be dismissed.

January 17, 2017
Alexandria, Virginia

Accordingly, the

An appropriate order shall issue.

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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