Rasha Mohammad v. General Consulate of Kuwait La ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RASHA MOHAMMAD, and All Persons No. 20-56255
Similarly Situated,
Plaintiff-Appellee, D.C. No.
2:20-cv-02513-
v. MWF-MAA
GENERAL CONSULATE OF THE STATE
OF KUWAIT IN LOS ANGELES, AKA OPINION
The General Consulate of the State of
Kuwait, AKA The Nation of Kuwait,
AKA The Royal Consulate of the
State of Kuwait, The State of Kuwait,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted January 10, 2022 *
Pasadena, California
Filed March 17, 2022
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 MOHAMMAD V. GEN. CONSULATE OF KUWAIT
Before: Johnnie B. Rawlinson and Consuelo M. Callahan,
Circuit Judges, and Frederic Block, ** District Judge.
Opinion by Judge Callahan
SUMMARY ***
Foreign Sovereign Immunities Act
The panel affirmed the district court’s order denying the
motion of the State of Kuwait’s Consulate in Los Angeles to
dismiss an employment discrimination action based on
sovereign immunity under the Foreign Sovereign
Immunities Act.
The panel affirmed the district court’s holding that the
commercial activity exception to the FSIA applied. The
panel reaffirmed the holding of Holden v. Canadian
Consulate, 92 F.3d 918 (9th Cir. 1996), that the
“employment of diplomatic, civil service or military
personnel is governmental,” and clarified that the
employment of other personnel is commercial unless the
foreign state shows that the employee’s duties included
“powers peculiar to sovereigns.” The panel held that the
district court properly exercised its discretion in finding that
plaintiff, who was employed as an administrative assistant
**
The Honorable Frederic Block, United States District Judge for
the Eastern District of New York, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MOHAMMAD V. GEN. CONSULATE OF KUWAIT 3
by the Consulate, was not a civil servant and that her duties
did not include “powers peculiar to sovereigns.”
COUNSEL
Nick S. Pujji and Carol Your, Dentons US LLP, Los
Angeles, California, for Defendants-Appellants.
Richard L. Knickerbocker, Knickerbocker Law Firm, Santa
Monica, California, for Plaintiff-Appellee.
OPINION
CALLAHAN, Circuit Judge:
Rasha Mohammad (“Plaintiff”) was employed as an
administrative assistant by the State of Kuwait’s Consulate
in Los Angeles (the “Consulate”). She filed suit alleging that
she had been constructively terminated due to discrimination
based on her religion, gender, and national origin. She also
alleged other violations of California’s employment laws.
The Consulate moved to dismiss the action based inter alia
on sovereign immunity. The district court denied the
motion, finding that it had jurisdiction under the commercial
activity exception to the Foreign Sovereign Immunities Act
(“FSIA”), 28 U.S.C. § 1602 et seq. The Consulate appeals,
arguing that Plaintiff was part of its civil service and that her
duties included “powers peculiar to sovereigns.” See Saudi
Arabia v. Nelson, 507 U.S. 349, 360 (1993) (quoting
Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614
(1992)). We affirm because the Consulate has not shown
that the district court abused its discretion in finding that
Plaintiff was not a civil servant and that her duties as an
4 MOHAMMAD V. GEN. CONSULATE OF KUWAIT
employee who is not a diplomat, civil servant, or military
officer, did not include “powers peculiar to sovereigns.”
I
Plaintiff was a Syrian national living in California as a
legal permanent resident and is now a U.S. citizen. She is
not, and has never been, a Kuwaiti national. In April 2014,
Plaintiff entered into a written employment contract with the
Consulate to work as a secretary. Plaintiff alleges that the
Consulate created a hostile work environment by harassing,
discriminating, and retaliating against her on the basis of her
gender, religion, and Syrian national origin, violated various
wage and hour laws, and breached her employment contract.
She claims that as a result of this treatment she was forced
to resign and was constructively terminated from her
employment, effective September 1, 2017.
Plaintiff initiated this action by filing a complaint in the
Los Angeles Superior Court in September 2018. 1 The
Consulate removed the action to the U.S. District Court for
the Central District of California and then moved to dismiss
the complaint on the ground that the Consulate was entitled
to sovereign immunity under the FSIA. After briefing and
oral argument, the district court denied the motion to dismiss
in part and granted it in part.
1
Plaintiff alleged twenty-three claims, including: (1) religious,
gender, and national origin discrimination claims under California’s Fair
Employment and Housing Act; (2) harassment by employer and failure
to prevent discrimination and harassment; (3) failure to pay required
wages and vacation time; (4) breach of contract and the implied covenant
of good faith and fair dealing; (5) unfair business practices; (6) violations
of the Labor Code; (7) failure to give notice before cancellation of
insurance coverage; and (8) improper disposition of property.
MOHAMMAD V. GEN. CONSULATE OF KUWAIT 5
II
As the district court recognized, the FSIA “provides the
sole basis for obtaining jurisdiction over a foreign state in
the courts of this country.” OBB Personenverkehr AG v.
Sachs, 577 U.S. 27, 30 (2015) (quoting Argentine Republic
v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989)).
Plaintiff asserted that the court had jurisdiction over her case
pursuant to three exceptions to sovereign immunity in the
FSIA: the commercial activity exception, the expropriation
exception, and the tort exception. The district court found
that the commercial activity exception applied and declined
to address the application of the expropriation and tort
exceptions. 2
The FSIA’s commercial activity exception states: “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). Commercial activity:
means either a regular course of commercial
conduct or a particular commercial
transaction or act. The commercial character
of an activity shall be determined by
reference to the nature of the course of
2
Because we affirm the district court’s determination that the
commercial activity exception applies, we too do not address the
application of the expropriation and tort exceptions.
6 MOHAMMAD V. GEN. CONSULATE OF KUWAIT
conduct or particular transaction or act, rather
than by reference to its purpose.
28 U.S.C. § 1603(d).
Citing OBB, 577 U.S. at 33, 35, the district court held
that it must first identify “the particular conduct on which
the plaintiff’s action is based”: the “gravamen” of the action.
It determined that the “gravamen” of Plaintiff’s action was
“the Consulate’s treatment of [Plaintiff] as an employee
during the course of her employment,” as all of her claims
were based upon “the Consulate’s alleged failure to abide by
laws regulating how employers must treat and compensate
their employees.”
The district court found our opinion in Holden v.
Canadian Consulate, 92 F.3d 918 (9th Cir. 1996),
instructive. Holden had been a “commercial officer” within
the Canadian Consulate. Id. at 920. She sued the Canadian
Consulate after her employment was terminated and she was
replaced by a younger, less experienced man. Id. at 921. We
adopted “the standard suggested by the legislative history,
that is, employment of diplomatic, civil service or military
personnel is governmental and the employment of other
personnel is commercial.” Id. We looked past Holden’s job
title and determined that she was not a civil servant because
she “did not compete for any examination prior to being
hired, was not entitled to tenure, was not provided the same
benefits as foreign service officers and did not receive any
civil service protections from the Canadian government.”
Id.Applying Holden, the district court found that the nature
of Plaintiff’s work for the Consulate “was that of clerical
staff, not civil servants or diplomatic personnel.” It found
that she was hired as a secretary whose job duties “included
MOHAMMAD V. GEN. CONSULATE OF KUWAIT 7
general office clerical work like typing letters and reports
dictated, approved, and signed by others, organizing files,
archiving records, filing documents, answering the phones,
and maintaining files.” The court commented that Plaintiff
also “helped assist others with translating things into Arabic
or assisting Diplomats with writing and understanding the
English language, but was not involved in policy-making or
policy deliberations.” In addition, Plaintiff “was not the
personal secretary of any Diplomat and all confidential
material and information was locked in a room which she
never entered.” The district court concluded that Plaintiff
had “met her burden of production to show that the
Consulate employed her to perform routine secretarial and
administrative tasks, and thus, the commercial activity
exception applies.”
The district court held that the burden then shifted to the
Consulate “to show, by a preponderance of the evidence, that
[Plaintiff] performed uniquely governmental tasks.” The
district court reviewed the declaration and other materials
submitted by the Secretary for the Consulate as well as the
materials submitted by Plaintiff and concluded that the
Consulate had failed to show that its employment of Plaintiff
as a secretary was not commercial in nature. The district
court observed that the Consulate had conflated the purpose
of Plaintiff’s work with the nature of her work and noted that
the Secretary’s declaration did not claim that Plaintiff “had
discretionary job duties, was substantively involved in the
making of policy or other governmental decisions, engaged
in lobbying activity or legislative work, or had the authority
to discuss substantive policy matters on behalf of the
Kuwaiti government.”
The district court denied the Consulate’s request for
further discovery. Quoting Holden, 92 F.3d at 922, the
8 MOHAMMAD V. GEN. CONSULATE OF KUWAIT
district court commented that even if the court “were to
resolve the factual disputes in [its] favor, the Consulate
would still fall short of proving by a preponderance of the
evidence that the nature of Plaintiff’s work was not
‘regularly done by private persons.’”
The Consulate filed a timely notice of appeal.
III
“A district court’s denial of immunity to a foreign
sovereign is an appealable order under the collateral order
doctrine.” Doe v. Holy See, 557 F.3d 1066, 1074 (9th Cir.
2009) (per curiam); Compania Mexicana de Aviacion, S.A.
v. U.S. Dist. Court, 859 F.2d 1354, 1356 (9th Cir. 1988) (per
curiam) (same).
The existence of subject matter jurisdiction under the
FSIA is a question of law, which is reviewed de novo.
Holden, 92 F.3d at 920; Park v. Shin, 313 F.3d 1138, 1141
(9th Cir. 2002). However, credibility findings are generally
reviewed for clear error, see Papakosmos v. Papakosmos,
483 F.3d 617, 623 (9th Cir. 2007), and evidentiary rulings
are reviewed for an abuse of discretion, see Spencer v.
Peters, 857 F.3d 789, 798 (9th Cir. 2017). We have further
noted that on review of “a district court’s factual findings,
the abuse-of-discretion and clearly erroneous standards are
indistinguishable.” Oakland Bulk & Oversized Terminal,
LLC v. City of Oakland, 960 F.3d 603, 612 (9th Cir. 2020)
(quoting United States v. Hinkson, 585 F.3d 1247, 1259 (9th
Cir. 2009) (en banc)). A district court’s factual finding will
be affirmed “unless that finding is illogical, implausible, or
without support in inferences that may be drawn from the
record.” Hinkson, 585 F.3d at 1263.
MOHAMMAD V. GEN. CONSULATE OF KUWAIT 9
IV
A. Defining the commercial activity exception
The Supreme Court provided the contours of the
commercial activity exception in Weltover, 504 U.S. 607,
(holding that Argentina’s issuance of bonds was a
commercial activity), and Saudi Arabia, 507 U.S. 349(holding that the Saudi government’s wrongful arrest,
imprisonment, and torture of plaintiff were sovereign not
commercial activities). In Saudi Arabia, the Supreme Court
read Weltover as holding:
that a state engages in commercial activity
under the restrictive theory where it exercises
“‘only those powers that can also be
exercised by private citizens,’” as distinct
from those “‘powers peculiar to sovereigns.’”
Put differently, a foreign state engages in
commercial activity . . . only where it acts “in
the manner of a private player within” the
market. 504 U.S., at 614; see Restatement
(Third) of the Foreign Relations Law of the
United States § 451 (1987) (“Under
international law, a state or state
instrumentality is immune from the
jurisdiction of the courts of another state,
except with respect to claims arising out of
activities of the kind that may be carried on
by private persons”).
507 U.S. at 360 (quoting Weltover, 504 U.S. at 614).
Three years after the Supreme Court’s opinion in Saudi
Arabia, we decided Holden. We recognized that the FSIA
was the sole basis for obtaining jurisdiction over a foreign
10 MOHAMMAD V. GEN. CONSULATE OF KUWAIT
state and that under the commercial activity exception, a
country is not immune “if the plaintiff’s cause of action is
based upon a commercial activity carried on by the foreign
state.” Holden, 92 F.3d at 920.
We noted that the “the FSIA directs courts to examine
the nature of the act or course of conduct, rather than the
purpose.” Id. We adopted the definition of commercial
activity set forth in Saudi Arabia, 507 U.S. at 360, and
added:
it is not enough for the foreign state merely to
have engaged in a commercial activity.
Rather the statutory language requires that
the plaintiff’s cause of action be “based
upon” the commercial activity in question. A
plaintiff’s claim is “based upon” those
activities that are elements of the claim that
would entitle the plaintiff to relief.
Holden, 92 F.3d at 920 (citations omitted).
Finding a lack of clear definition of “commercial
activity” in the FSIA, we turned to the FSIA’s legislative
history. Based on a House of Representative’s Report, we
first noted that the employment of diplomatic, civil service,
and military personnel is not commercial in nature. Id. at
921. Next, we quoted a section stating that “[a]ctivities such
as a government’s . . . employment or engagement of
laborers, clerical staff or public relations or marketing agents
. . . would be among those included within the definition [of
commercial activity].” Id. (second alteration and omissions
in original). We then adopted a standard suggested by the
legislative history:
MOHAMMAD V. GEN. CONSULATE OF KUWAIT 11
employment of diplomatic, civil service or
military personnel is governmental and the
employment of other personnel is
commercial. Because private parties cannot
hire diplomatic, civil service or military
personnel, such hiring is necessarily
governmental.
Id. 3
We found that although Holden “was a full-time
employee of the Canadian government who was closely
monitored and supervised,” she was not a diplomat, “did not
engage in any lobbying activity or legislative work for
Canada, and . . . could not speak for the government.” Id. at
921, 922. Although Canada argued that “the purpose of her
work was to promote trade solely for trade’s sake, and not
for commercial gain, [we held that] we examine the nature
of the act, and not the purpose behind it.” Id. at 922. We
concluded that because the “nature of Holden’s work,
promotion of products, is regularly done by private persons,
. . . her employment was a commercial activity.” Id.Although, as noted by the Consulate, Holden has been
interpreted by another circuit as creating a rigid rule, see El-
Hadad v. United Arab Emirates, 496 F.3d 658, 664 n.2,
(D.C. Cir. 2007) (opining that the Ninth Circuit “treats the
civil servant question as effectively superseding the
commercial/government distinction”), we read Holden as
establishing a more general standard. For example, in Park,
We cited approvingly the Seventh Circuit’s assertion in Segni v.
3
Commercial Office of Spain, 835 F.2d 160 (7th Cir. 1987), that the mere
act of employing a person was not per se a commercial activity. Holden,
92 F.3d at 921.
12 MOHAMMAD V. GEN. CONSULATE OF KUWAIT
we held that “an activity is commercial unless it is one that
only a sovereign state could perform.” 313 F.3d at 1145.
We reaffirm our ruling in Holden that the “employment
of diplomatic, civil service or military personnel is
governmental,” 92 F.3d at 921, and clarify that the
employment of other personnel is commercial unless the
foreign state shows that the employee’s duties included
“powers peculiar to sovereigns.” Saudi Arabia, 507 U.S. at
360 (quoting Weltover, 504 U.S. at 614). 4
B. Application of the commercial activity exception
Whether Plaintiff was a “civil servant” or had duties that
included “powers peculiar to sovereigns” appears to be a
4
Other circuits substantially agree with this standard. See El-
Hadad, 496 F.3d at 667 (holding that El–Hadad was not a civil servant
and moving on “to the ultimate question of whether his work involved
the exercise of ‘powers that can also be exercised by private citizens, as
distinct from those powers peculiar to sovereign.’”) (quoting Saudi
Arabia, 507 U.S. at 360); Kato v. Ishihara, 360 F.3d 106, 111 (2nd Cir.
2004) (holding that “to identify ‘commercial activity’ for purposes of the
‘commercial activity’ exception to immunity under the FSIA, we must
ask whether ‘the particular actions that the foreign state performs . . . are
the type of actions by which a private party engages in trade and traffic
or commerce’”) (omission in original) (quoting Weltover, 504 U.S. at
614); see also Merlini v. Canada, 926 F.3d 21, 23 (1st Cir. 2019)
(upholding jurisdiction under the FSIA’s commercial exception over a
claim by a clerical worker in the Canadian consulate in Boston who was
injured when she tripped over a cord).
We note that in an unpublished disposition, Eringer v. Principality
of Monaco, 533 F. App’x 703 (9th Cir. 2013), a panel of our court
similarly rejected the argument that only diplomatic, civil service, and
military personnel were governmental and all other personnel were
commercial, and instead, interpreted the lists of laborers, clerical staff,
public relations agents, and marketing agents in Holden and Park as
exemplary rather than categorical. Id. at 704.
MOHAMMAD V. GEN. CONSULATE OF KUWAIT 13
factual issue, at least insofar as the district court had to
evaluate conflicting evidence and assertions. See U.S. Bank
Nat. Ass’n ex rel. CWCapital Asset Mgmt. LLC v. Village at
Lakeridge, LLC, 138 S. Ct. 960, 967 (2018) (noting that
some mixed questions “immerse courts in case-specific
factual issues—compelling them to marshal and weigh
evidence [and] make credibility judgments”).
We consider whether an employee’s activity is
commercial in character by examining its nature, rather than
the purpose of the activity. 28 U.S.C. § 1603(d); Weltover,
504 U.S. at 614 (quoting Black’s Law Dictionary 270 (6th
ed. 1990)) (“[T]he issue is whether the particular actions that
the foreign state performs (whatever the motive behind
them) are the type of actions by which a private party
engages in ‘trade and traffic or commerce’”); Holden, 92
F.3d at 922 (“[W]e examine the nature of the act, and not the
purpose behind it.”).
The district court reasonably rejected the Consulate’s
assertion that Plaintiff was a “civil servant.” The Secretary’s
declaration claimed that Plaintiff was employed as “a
Mission Secretary for the Consulate,” but her employment
application listed her job title as “administrative assistant.”
The Secretary’s declaration asserted that Plaintiff was
“provided civil service benefits similar to those received by
Consulate diplomats such as access to health insurance.”
However, the district court determined that documents
submitted by Plaintiff revealed that all Consulate employees
receive health insurance except diplomatic personnel who do
not have health insurance and “instead forward medical
invoices directly to the State for payment.” The Consulate
has failed to show that the district court’s determination that
Plaintiff was not a “civil servant” is “illogical, implausible,
14 MOHAMMAD V. GEN. CONSULATE OF KUWAIT
or without support in inferences that may be drawn from the
record.” Hinkson, 585 F.3d at 1263.
The Consulate contends that the district court should not
have applied the factors set forth in Holden as relevant to
determining whether Plaintiff was a civil servant but should
instead have considered Kuwait’s own definition of civil
service. However, the Consulate has not supported its
assertion with any evidence that Kuwait has a unique or
different definition of civil service.
The Consulate further asserts that even if Plaintiff was
not a “civil servant,” her duties included “powers peculiar to
sovereigns.” It asserts that she: (1) was a highly qualified
secretary directly responsible for coordinating, translating,
and presenting high-level information that was both
confidential and non-confidential; (2) attended some of the
highest level meetings, often worked directly with the head
of the mission, and communicated with certain authorities
on behalf of the mission; and (3) was also involved in high
level communications that involved the Kuwaiti government
and typed and prepared reports for local authorities and for
transmission to the Kuwaiti government through the
diplomats. The Consulate cites Plaintiff’s allegation that she
was forced to participate in meetings or conversations in
which Consulate officials were conspiring to defraud or
deceive U.S. governmental agencies (which the Consulate
denies) as plainly contradicting her assertion that she was
never involved in any confidential communications. The
Consulate further argues that the district court erred in not
accepting that Plaintiff was an integral part of the mission’s
communication channel based on its lack of specificity
because this put the Consulate in an impossible Catch-22
situation “where it would have to reveal sensitive, foreign
government information that is traditionally protected by
MOHAMMAD V. GEN. CONSULATE OF KUWAIT 15
immunity in order to sufficiently prove its entitlement to
immunity.”
The Consulate appears to conflate the nature and purpose
of Plaintiff’s duties and to confuse her prescribed duties with
how the Consulate chose to utilize her skills. It seems to
argue that because Plaintiff was allowed to participate in
certain confidential meetings and was asked to translate
some confidential materials, she is similar to a diplomat or
civil servant and the commercial activity exception does not
apply. But this misconstrues the test.
A person hired for a clerical position does not become a
diplomat or civil servant because the sovereign choses to
expose that person to confidential matters. Rather the test
remains whether the employee’s claims arise “out of
activities of the kind that may be carried on by private
persons,” Saudi Arabia, 507 U.S. at 360 (quoting
Restatement (Third) of the Foreign Relations Law of the
United States § 451 (1987)), or that are “regularly done by
private persons,” Holden, 92 F.3d at 922. Here, Plaintiff’s
secretarial and translating duties are the type of activities that
are usually performed by clerical staff. On this record, the
Consulate has failed to meet its burden of showing that the
district court erred in finding that Plaintiff’s claims fall
within the commercial activity exception.
V
Finally, the Consulate asserts that we should remand for
further discovery and evidentiary proceedings, in part
because Plaintiff filed two ex parte applications after the
filing of her reply brief. “We review the district court’s
decision to limit the scope of jurisdictional discovery for
abuse of discretion.” AMA Multimedia, LLC v. Wanat, 970
F.3d 1201, 1207 (9th Cir. 2020). The Consulate has not
16 MOHAMMAD V. GEN. CONSULATE OF KUWAIT
shown that the limitation on discovery was an abuse of
discretion. It has not shown that it was precluded from
presenting relevant evidence, has not suggested what
evidence it would present on remand, and has not indicated
how that evidence would alter the jurisdictional ruling. We
therefore deny the Consulate’s request for a remand.
VI
The FSIA provides that a foreign state is not granted
immunity where an 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 Supreme Court has described
commercial activity as “those powers that can also be
exercised by private citizens, as distinct from those powers
peculiar to sovereigns.” Saudi Arabia, 507 U.S. at 360(cleaned up). We reaffirm our holding in Holden that the
employment of diplomatic, civil service, and military
personnel is entitled to immunity. Holden, 92 F.3d 921. We
clarify that the employment of other personnel can qualify
for immunity if the duties of those employees include
powers “peculiar to sovereigns.” Saudi Arabia, 507 U.S. at
360 (quoting Weltover, 504 U.S. at 614). Here, the district
court determined that Plaintiff’s clerical duties with the
Consulate did not include such powers. On the existing
record, the Consulate has not shown that this determination
“is illogical, implausible, or without support in inferences
that may be drawn from the record.” Hinkson, 585 F.3d at
1263. Accordingly, the district court’s denial of the
Consulate’s motion to dismiss for lack of jurisdiction is
AFFIRMED.