313 F. Supp. 3d 815
S.D. Tex.2018Background
- Harmouche, a U.S. citizen, worked for the Consulate General of Qatar in Houston from 1997 until his termination in June 2016 as a public relations manager.
- He alleges that beginning in 2013–2014 the Consul General reassigned his public-relations duties to others, relegated him to menial tasks, harassed him about age and religion, and terminated him stating it was because of his age.
- Harmouche sued under Title VII and the ADEA on December 6, 2017; the Consulate moved to dismiss asserting foreign sovereign immunity under the FSIA.
- The Consulate framed its motion under Rule 12(b)(2), but because it asserted FSIA immunity the court treated the motion as a Rule 12(b)(1) factual challenge to subject-matter jurisdiction and considered extrinsic evidence from both parties.
- The key legal question was whether the FSIA's commercial-activity exception (28 U.S.C. § 1605(a)(2)) applies to Harmouche’s employment, which would defeat the Consulate’s claim of immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FSIA immunity bars suit or the commercial-activity exception applies | Harmouche argues his employment (public relations duties) is commercial and thus falls within §1605(a)(2) | Consulate contends its functions are governmental and immune; employment is not commercial | Court held the commercial-activity exception applies; immunity denied |
| Whether Harmouche was a Qatari civil servant (which would end analysis) | Harmouche says he was not a Qatari civil servant; he is a U.S. citizen | Consulate offered a declaration claiming he was considered a civil servant but provided no Qatari-law proof | Court found Consulate failed to carry its burden to show Harmouche was a civil servant; analysis continued |
| Whether the nature of Harmouche’s duties was governmental or commercial | Harmouche points to drafting press releases, planning events, and administrative tasks—work resembling private-sector public relations | Consulate argued duties furthered sovereign functions and were not commercial | Court found duties resembled private commercial PR work, not discretionary sovereign policymaking; commercial in nature |
| Standard of review for motion | N/A — plaintiff relied on jurisdictional evidence and affidavits | Consulate characterized as Rule 12(b)(2) lack of personal jurisdiction | Court treated the motion as a factual Rule 12(b)(1) attack, considered extrinsic evidence, and resolved disputed facts in jurisdictional inquiry |
Key Cases Cited
- Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (limits of federal subject-matter jurisdiction)
- DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (burden of establishing jurisdiction rests with party asserting it)
- Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (FSIA is the sole basis for jurisdiction over a foreign state)
- Saudi Arabia v. Nelson, 507 U.S. 349 (commercial-activity exception and treatment of foreign civil servants)
- Republic of Argentina v. Weltover, 504 U.S. 607 (character of foreign-state conduct determined by outward form, not purpose)
- El-Hadad v. United Arab Emirates, 496 F.3d 658 (D.C. Cir.) (approach to civil-servant question and commercial activity analysis)
- Clark v. Tarrant County, 798 F.2d 736 (procedural bases for 12(b)(1) dismissal)
- Paterson v. Weinberger, 644 F.2d 521 (facial vs. factual attacks on jurisdiction)
- Moran v. Kingdom of Saudi Arabia, 27 F.3d 169 (burdens under FSIA: foreign state to show immunity prima facie)
- Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006 (standards for dismissal for lack of subject-matter jurisdiction)