Mohammad v. Gen. Consulate of Kuwait in L. A.

• Decision Date: 17 March 2022
• Docket Number: No. 20-56255,20-56255
• Parties: Rasha MOHAMMAD, and All Persons Similarly Situated, Plaintiff-Appellee, v. GENERAL CONSULATE OF the STATE OF KUWAIT IN LOS ANGELES, aka 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.
• Court: U.S. Court of Appeals — Ninth Circuit

28 F.4th 980

Rasha MOHAMMAD, and All Persons Similarly Situated, Plaintiff-Appellee,

v.GENERAL CONSULATE OF the STATE OF KUWAIT IN LOS ANGELES, aka 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.

No. 20-56255

United States Court of Appeals, Ninth Circuit.

Submitted January 10, 2022^* Pasadena, California

Filed March 17, 2022

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.

Before: Johnnie B. Rawlinson and Consuelo M. Callahan, Circuit Judges, and Frederic Block,^** District Judge.

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, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993) (quoting Republic of Argentina v. Weltover, Inc. , 504 U.S. 607, 614, 112 S.Ct. 2160, 119 L.Ed.2d 394 (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 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.

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, 136 S.Ct. 390, 193 L.Ed.2d 269 (2015) (quoting Argentine Republic v. Amerada Hess Shipping Corp. , 488 U.S. 428, 443, 109 S.Ct. 683, 102 L.Ed.2d 818 (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 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, 136 S.Ct. 390, 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 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 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 Papakosmas v. Papakosmas , 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.

IV

A. Defining the commercial activity exception

The Supreme Court provided the contours of the commercial activity exception in Weltover , 504 U.S. 607, 112 S.Ct. 2160, 119 L.Ed.2d 394, (holding that Argentina's issuance of bonds was a commercial activity), and Saudi Arabia , 507 U.S. 349, 113 S.Ct. 1471, 123 L.Ed.2d 47 (holding that the Saudi government's wrongful arrest, imprisonment, and torture...