Johnson v. Aramco Services Co ( 2006 )


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  •                                                             United States Court of Appeals
                                                                         Fifth Circuit
                                                                       F I L E D
                                In the                                January 10, 2006
           United States Court of Appeals                         Charles R. Fulbruge III
                      for the Fifth Circuit                               Clerk
                          _______________
    
                            m 04-20557
                          Summary Calendar
                          _______________
    
    
    
    
                    PETER BERNARD JOHNSON,
      ON BEHALF OF HIMSELF AND ALL PERSONS SIMILARLY SITUATED,
    
    
                                               Plaintiff-Appellant,
    
                               VERSUS
    
    ARAMCO SERVICES COMPANY; SAUDI ARABIAN OIL COMPANY,
    
                                               Defendants-Appellees.
    
    
    
    
                  _________________________
    
              Appeal from the United States District Court
                  for the Southern District of Texas
                           m 4:04-CV-642
                   _________________________
                ON PETITION FOR                               this is found in the record in the form of
              REHEARING EN BANC                               ASC’s letter to the Equal Employment Op-
                                                              portunity Commission (“EEOC”) in which it
    Before DAVIS, SMITH, and DENNIS,                          states, “ASC, among others, recruits employ-
      Circuit Judges.                                         ees for positions with the Saudi Arabian Oil
                                                              Company (‘Saudi Aramco’) and infrequently
    JERRY E. SMITH, Circuit Judge:*                           recruits for other entities.” Johnson’s unrefut-
                                                              ed affidavit asserts that an ASC employee in-
        The second opinion, 134 Fed. Appx. 547                formed him that ASC acts as a recruiter for
    (5th Cir. May 31, 2005), which replaced the               additional entities including its own subsidiar-
    first opinion, 120 Fed. Appx. 547 (5th Cir.               ies.
    Jan. 31, 2005), is WITHDRAWN, and the fol-
    lowing opinion is substituted:                                According to Johnson, he was later in-
                                                              formed that he would not be selected for the
                         * * *                                job, allegedly because of his advanced age. He
                                                              filed a complaint with the EEOC, was granted
        Peter Johnson appeals the dismissal, for              a right to sue letter, and sued ASC and SAO
    want of subject matter jurisdiction, of his age           alleging, inter alia, violations of the Age
    discrimination suit. Because Johnson cannot               Discrimination in Employment Act (“ADEA”),
    allege facts sufficient to sustain a cause of ac-         29 U.S.C. § 621 et seq. ASC moved for
    tion against this defendant, we affirm.                   dismissal based on a lack of subject matter
                                                              jurisdiction, pursuant to FED. R. CIV. P. 12-
                           I.                                 (b)(1), or alternatively for summary judgment,
       Johnson, while fifty-seven years old, at-              arguing “the court cannot apply extra-territori-
    tended a job fair in Houston hosted by Aramco             ally the ADEA . . . to a foreign corporation
    Services Company (“ASC”) and applied                      who employs U.S. citizens to work abroad.”1
    through ASC for a job as a Seismic Field Crew             The district court summarily granted the mo-
    Supervisor working in Saudi Arabia with                   tion to dismiss “with prejudice, for lack of
    Saudi Arabian Oil Company (“SAO”). SAO is                 jurisdiction.”
    a Saudi Arabian entity with its principal office
    in Dhahran, Saudi Arabia, and ASC, SAO’s                                        II.
    wholly-owned subsidiary, is incorporated in                  We review de novo a dismissal for want of
    Delaware. ASC states that it provides SAO                 subject matter jurisdiction. See Ramming v.
    with a range of services, including assistance            United States, 
    281 F.3d 158
    , 161 (5th Cir.
    with recruiting.                                          2001).
    
       ASC apparently recruitsSSalbeit infrequent-               Lack of subject matter jurisdiction may be
    lySSfor entities other than SAO. Support for                 found [o n] any one of [the following bas-
    
    
       *                                                         1
        Pursuant to 5TH CIR. R. 47.5, the court has de-            That this logic indisputably applies with re-
    termined that this opinion should not be published        spect to SAO, Johnson does not disagree, and he
    and is not precedent except under the limited cir-        consented to the dismissal of his claims against
    cumstances set forth in 5TH CIR. R. 47.5.4.               SAO.
    
                                                          2
          es]: (1) the complaint alone; (2) the com-             zens to work aborad.2
          plaint supplemented by undisputed facts
          evidenced in the record; or (3) the com-                   Based on the presumption against extra-ter-
          plaint supplemented by undisputed facts                ritorial application, even Johnson concedes
          plus the court’s resolution of disputed facts          that SAO is not a covered employer under the
          . . . . In examining a Rule 12(b)(1) motion,           ADEA. Nevertheless, because ASC is a U.S.
          the district court is empowered to consider            corporation, the same principle does not nec-
          matters of fact which may be in dispute.               essarily immunize it from suit.
          Ultimately, a motion to dismiss for lack of
          subject matter jurisdiction should be grant-              Johnson asserts that ASC, functioning as an
          ed only if it appears certain that the plaintiff       employment agency, may be liable for its own
          cannot prove any set of facts in support of            discriminatory practices under 29 U.S.C.
          his claim that would entitle plaintiff to              § 623(b). Johnson’s complaint avers that
          relief.                                                ASC, through its screening and referral pro-
                                                                 cess that classified him according to his age,
    Id.                                                          violated the ADEASSindependently of SAO’s
                                                                 discriminatory practices.
                           III.
       The ADEA provides, in part, that “[i]t shall                 ASC correctly notes, however, that SAO is
    be unlawful for an employment agency to fail                 not a covered employer under the ADEA.
    or refuse to refer for employment, or other-                 Consequently, goes the argument, recruiting
    wise to discriminate against, any individual be-             organizations such as ASC cannot be consid-
    cause of such individual’s age, or to classify or            ered an employment agency for purposes of
    refer for employment any individual on the                   the act if the foreign corporation for whom the
    basis of such individual’s age.” 29 U.S.C.                   recruiter works is not a covered employer un-
    § 623(b). Bridling this proposition is the no-               der the ADEA.3
    tion that no federal statute applies extra-terri-
    torially unless Congress has expressly indi-                    Johnson responds by citing 29 C.F.R.
    cated its intent for such an application. See,               § 1625.3, which states that an employment
    e.g., EEOC v. Arabian Am. Oil Co., 499 U.S.                  agency that “regularly procures employees for
    244, 248 (1991). This canon of statutory con-
    struction “serves to protect against unintended
                                                                    2
    clashes between our laws and those of other                       See Denty v. SmithKline Beecham Corp., 109
    nations which could result in international dis-             F.3d 147, 150 (3d Cir. 1991) (T he ADEA “does
    cord.” Id. The ADEA does not evince any                      not apply to foreign nationals working for [U.S.]
    such intent; to the contrary, the plain language             corporations in a foreign workplace and it does not
    of § 623(h)(2) generally prohibits such appli-               apply to foreign companies which are not con-
                                                                 trolled by U.S. firms.”).
    cations. Age discrimination claims, conse-
    quently, are not cognizable with respect to for-                3
                                                                     See Brownlee v. Lear Siegler Mgmt. Servs.
    eign corporations who employ American citi-                  Corp., 
    15 F.3d 976
    , 978 n.3 (10th Cir. 1994);
                                                                 Shrock v. Altru Nurses Registry, 
    810 F.2d 658
    ,
                                                                 660-61 (7th Cir. 1987); Goswami v. Aramco
                                                                 Servs. Co., No. H-00-0929, slip op. at 12-14 (S.D.
                                                                 Tex. Mar. 22, 2001).
    
                                                             3
    at least one covered employer [] qualifies un-            when read in light of Congress’s unequivocal
    der section 11(c) of the [ADEA] as an em-                 admonition against extra-territorial application
    ployment agency with respect to all of its ac-            of the ADEA co ntained in subsection (h)(2),
    tivities whether or not such activities are for           the regulation cannot impose liability on ASC
    employers covered by the act.” (Emphasis                  where the plain words of the statute exempt it.
    added.) Consequently, to the extent the regu-
    lation applies, if ASC “regularly” recruits for              In light of the foregoing, Johnson has failed
    any covered employer or employers, the fact               to allege facts sufficient to sustain an ADEA
    that SAO is not a covered employer will not               cause of action against ASC. The judgment of
    immunize it from its conduct with respect to              dismissal is therefore AFFIRMED.
    Johnson.
                                                                  Treating the petition for rehearing en banc
        We need not decide, however, whether                  as a petition for panel rehearing, the petition
    ASC qualifies as an employment agency under               for panel rehearing is DENIED. No member
    the statute or the regulation. Assuming, for              of the panel or judge in regular active service
    our purposes, t hat ASC is an employment                  having requested that the court be polled on
    agency, subsection (h)(2) absolves it of any lia-         rehearing en banc (FED. R. APP. P. 35 and 5TH
    bility under this section.4 It is uncontested that        CIR. R. 35), the petition for rehearing en banc
    SAO, the employer, is a foreign person not                is DENIED. No further petitions for panel re-
    controlled by an American employer and that               hearing or rehearing en banc will be enter-
    ASC was procuring employees for SAO to                    tained. The mandate shall issue forthwith.
    work in a foreign workplace.5
    
       If we were to apply the regulation, we
    would need to determine precisely what is
    meant by the phrase “regularly procure.” We
    need not do so in this case, however, because
    
    
       4
         Subsection (h)(2) provides that “the prohibi-
    tions of this section shall not apply where the em-
    ployer is a foreign person not controlled by an
    American employer.”
       5
         See Morelli v. Cedel, 
    141 F.3d 39
    , 41-42 (2d
    Cir. 1998) (“At a minimum, this provision means
    that the ADEA does not apply to the foreign oper-
    ations of foreign employersSSunless there is an
    American employer behind the scenes.”); Denty v.
    SmithKline Beecham Corp., 
    109 F.3d 147
    , 150-50
    (3d Cir. 1997) (“The language of section 623(h)(2)
    could not be more clearSSthe ADEA does not
    apply when a foreign corporation controls an
    American corporation and the employment is with
    the foreign parent abroad.”).
    
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