Hijazi v. Permanent Mission of Saudi Arabia to the United Nations

10-0904-cv
Hijazi v. Permanent Mission of Saudi Arabia to the United Nations
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 22 nd day of December, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 JOSEPH M. McLAUGHLIN,
9 PIERRE N. LEVAL,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 GULNAR HIJAZI,
14 Plaintiff-Appellant,
15
16 -v.- 10-0904-cv
17
18 PERMANENT MISSION OF SAUDI ARABIA TO
19 THE UNITED NATIONS,
20 Defendant-Appellee.
21 - - - - - - - - - - - - - - - - - - - -X
22 FOR APPELLANT: Martha McBrayer, Morelli Ratner
23 PC, New York, New York.
24
25 FOR APPELLEE: John M. Aerni (Angela M.
26 Papalaskaris and Margaret A.
27 Keane on the brief), Dewey &
28 LeBoeuf LLP, New York, New York.
29
1 Appeal from a judgment of the United States District
2 Court for the Southern District of New York (Koeltl, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of the district court be
6 AFFIRMED.
7
8 Plaintiff Gulnar Hijazi appeals from a judgment of the
9 district court dismissing her complaint for lack of subject
10 matter jurisdiction pursuant to the Foreign Sovereign
11 Immunities Act, 28 U.S.C. §§ 1602-11 (“FSIA”). We assume
12 the parties’ familiarity with the underlying facts, the
13 procedural history, and the issues presented for review.
14
15 Hijazi was employed, during the relevant time period,
16 as an Advisor to the Permanent Mission of Saudi Arabia to
17 the United Nations. Hijazi brought suit alleging that she
18 was subjected to sexual harassment, discrimination based on
19 her gender and national origin, and unlawful retaliation.
20 See N.Y. Exec. Law § 290 et seq.; N.Y.C. Admin. Code § 8-
21 101. Hijazi contends that the dismissal of her complaint
22 was error because the Saudi Mission is not entitled to
23 immunity pursuant to the “commercial activity” exception to
24 the FSIA. 28 U.S.C. § 1605(a)(2).
25
26 As the parties agree, the Saudi Mission is a foreign
27 sovereign within the meaning of the FSIA. Hijazi bears the
28 “burden of going forward with evidence showing that, under
29 the exceptions to the FSIA, immunity should not be granted.”
30 In re Terrorist Attacks on Sept. 11, 2001, 538 F.3d 71, 80
31 (2d Cir. 2008), abrogated on other grounds by Samantar v.
32 Yousuf, 130 S. Ct. 2278, 2286 (2010). This Court “review[s]
33 the district court’s factual findings for clear error and
34 its legal conclusions de novo.” Zappia Middle E. Constr.
35 Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 249 (2d Cir.
36 2000). “[W]e must accept as true all material factual
37 allegations in the complaint, but we are not to draw
38 inferences from the complaint favorable to plaintiff[].”
39 J.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004).
40
41 Hijazi argues that the immunity issue turns on her
42 duties as an employee, which she contends were primarily
43 clerical, making her employment by the Mission “private or
44 commercial in character.” Saudi Arabia v. Nelson, 507 U.S.
45 349, 360 (1993) (holding court lacked jurisdiction under
46 FSIA to entertain suit by American employee of Saudi Arabian
2
1 hospital because action was not based on a commercial
2 activity). The Saudi Mission argues that the immunity issue
3 turns on the actions that the foreign state performs, and
4 not on the particular duties of a plaintiff employee. See
5 Kato v. Ishihara, 360 F.3d 106, 111 (2d Cir. 2004). We need
6 not resolve this dispute because we affirm under either
7 formulation of the jurisdictional inquiry.
8
9 It is undisputed that Hijazi attended and took notes at
10 diplomatic meetings, conducted research, wrote memoranda,
11 and, on one occasion, spoke on behalf of the Mission. Her
12 duties were thus in service of the Mission’s governmental
13 function. With respect to the activities of the Saudi
14 Mission, it is clear that its activities are governmental
15 and not commercial in nature. See Anglo-Iberia Underwriting
16 Mgmt. Co. v. P.T. Jamsostek, 600 F.3d 171, 175-78 (2d Cir.
17 2010) (declining to “look only to the fact of employment for
18 purposes of our ‘commercial activity’ analysis” because
19 doing so “would allow the exception to swallow the rule of
20 presumptive sovereign immunity codified in the FSIA”).
21
22 Accordingly, we conclude that the district court
23 properly dismissed Hijazi’s complaint for lack of subject
24 matter jurisdiction. See Nelson, 507 U.S. at 363.
25
26 Having considered all the arguments raised on appeal,
27 we hereby AFFIRM the judgment of the district court.
28
29 FOR THE COURT:
30 CATHERINE O’HAGAN WOLFE, CLERK
31
3