Opinion for the Court filed by Circuit Judge BROWN.
The chief question in this appeal is whether the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1602 et seq., shields the United Arab Emirates from the wrongful termination and defamation suit of its former employee, Mohamed Salem El-Hadad, once an accountant in the U.A.E.’s embassy here in Washington, D.C. The case turns on an application of the Act’s commercial activity exception. Id. § 1605(a)(2). Since we conclude El-Hadad was not a civil servant under the Act, and his work did not involve the exercise of distinctively governmental powers, we affirm the district court in applying the commercial activity exception and denying immunity. A relatively minor issue — the district court’s failure to discount El-Ha-dad’s future lost earnings to present value — compels us to reverse in part and remand the case solely for correction of that aspect of the damages award.
I
The facts below summarize the district court’s detailed findings after a bench trial, which we set aside only if clearly erroneous.
See El-Hadad v. Embassy of U.A.E.,
No. 96-1943,
El-Hadad is an Egyptian citizen who earned a bachelor’s degree in accounting in 1976 and began a career marked for many years by one promotion and positive job review after another. From 1982 to 1992, he worked as an auditor for the government of the United Arab Emirates in Abu Dhabi (not an unusual arrangement for the U.A.E., whose population between the ages of 15 and 64 numbers about 75% non-nationals,
El-Hadad v. U.A.E.,
About a year and a half later, in 1995, El-Hadad was accused of financial impropriety in connection with the very embezzlement he had exposed. Why he was accused — for the record and the district court’s opinion make clear that the accusation was baseless to the core — is a mystery, though a letter the U.A.E.’s Minister of Finance wrote on El-Hadad’s behalf gives a clue: “The existing disputes between the Cultural Attaché in Washington and the ... Ministry of Higher Education and Scientific Research have directly impacted the case of Mr. Mohammed El-Hadad. ...”
El-Hadad,
After he was fired, El-Hadad briefly found work as an auditor with the U.A.E.’s military attaehé, but the Ministry of Higher Education and Scientific Research viewed the job as a “circumvention of the penal termination imposed,” id. at *5, and, in late summer 1996, had him fired again. At about the same time, a representative of the Ministry held a meeting about El-Hadad’s dismissal with the fifteen or so employees of the cultural attaché’s office, announcing that El-Hadad was fired for not doing his job properly or honestly. And since then, in application after application both here and in Egypt (where he returned in 1997), El-Hadad has been rejected from every accounting job for which he has applied, always after inquiries about the circumstances in which his prior employment ended. His efforts over the last decade to find work in other fields and to start his own business have failed as well.
El-Hadad sued the U.A.E. and its Washington embassy for breach of his employment contract and defamation in August 1996, just after being fired from his job with the military attaehé. Claiming immunity from suit under the Foreign Sovereign Immunities Act, the U.A.E. moved to dismiss. The district court, applying the Act’s “commercial activity” exception, denied the motion.
El-Hadad v. Embassy of U.A.E.,
II
The chief issue before us is the U.A.E.’s claim to immunity under the Foreign Sovereign Immunities Act. Before passage of the 1976 Act, American courts had generally regarded foreign sovereigns as absolutely immune from suit (with exceptions where the political branches made case-specific recommendations to suspend immunity).
Verlinden B.V. v. Cent. Bank of Nig.,
Since El-Hadad’s action is “based upon” breach of his employment contract and defamation in connection with that breach, this case involves the commercial activity exception as applied in the employment context.
See Saudi Arabia,
There is no definition of “civil service” in the Foreign Sovereign Immunities Act or its legislative history and associated case law, and there are dangers in borrowing or analogizing to get one. Our country’s notion of a civil service has certain characteristic features (like merit selection, well-defined personnel procedures, and benefits), but we can’t rightly expect foreign governments to either “mimic civil service protections now common to the United States” or “saerific[e] the immunity conferred by FSIA.”
Kato,
First, how do the U.A.E.’s own laws define its civil service, and do El-Ha-dad’s job title and duties come within that definition?
Second, what was the nature of El-Hadad’s employment relationship with the U.A.E.? Did he have a true contractual arrangement, or is his “contract” claim instead based, as the U.A.E. contends, solely upon the civil service laws of the U.A.E.?
Third, what was the nature of El-Ha-dad’s employment relationship when he worked in the U.A.E., and how did his subsequent employment at the Embassy relate to that prior tenure? The U.A.E. contends that El-Hadad was a longtime resident and member of its domestic civil service, who was merely “transferred” to Washington to perform the same functions (governmental audits) he had been performing at home. El-Ha-dad contends, on the other hand, that he quit his position in the U.A.E. and began a “new” job in the United States, “separate from his previous employment.” Fourth, what was the nature of El-Ha-dad’s work? As noted above, Congress indicated that the “employment or engagement of laborers, clerical staff or public relations or marketing agents” would come within the definition of commercial activity.
Fifth, what is the relevance of El-Ha-dad’s Egyptian nationality on the facts of this case? Is the U.A.E. a country in which, as the House Report assumed, non-nationals are unlikely to be employed as governmental officers? Or does the U.A.E. often employ non-nationals in governmental positions?
As to the first question, the district court found that the U.A.E. does not have a definition of “civil service,” that “no such designation[ ] appear[s] to exist,” and that the U.A.E. “does not distinguish between employees paid by the government by categorizing them as civil service employees, governmental employees, or civilian employees.” El-Hadad III, slip op. at 4-5. Yet confusingly enough, several official U.A.E. documents in the record, including some the district court itself found probative, use the term. Perhaps these contradictory signals result from mistranslations of the documents’ original Arabic. See id. at 5 n. 3 (suggesting that the same Arabic term or terms might be translated as “civil service” or “public service”). In any case, we find it of some help that a 1994 letter from the U.A.E. embassy’s cultural attaché states that El-Hadad “doesn’t have the [c]ivil servant benefits.” If this letter means what it appears in English to say, it *666 is powerful evidence that El-Hadad was not a civil servant according to U.A.E. law. Even if the letter is mistranslated, the fact that El-Hadad lacked benefits common to other U.A.E. governmental employees is sufficient for El-Hadad to prevail, if only slightly and in light of the burden of proof, on the first factor.
Turning to the second question, El-Ha-dad was employed in all respects pursuant to the U.A.E.’s “Local Employees Regulations for the UAE Missions Abroad 1983.” While not an individualized contract, these regulations provide the clearest evidence available to us that El-Hadad should not qualify as a civil servant. First, the regulations define “local employees” as being generally “[ajdministrative employees, translators ... mailmen, drivers, security guards, cooks, waiters, farmers, [and] maintenance” and state that local employees should almost always be nationals of the country in which the embassy is located (with exceptions for “highly exceptional” cases, like, apparently, El-Hadad’s). Art. 1/3, 4/5 — 4/6. Plainly, these regulations are not aimed at what we or the U.A.E. would normally call a civil service. On the contrary, these regulations seem to describe the very people Congress intended the commercial activity exception for: “laborers, clerical staff,” and other Americans contracting to perform ordinary commercial services in the United States for a foreign government. Second, the regulations actually refer to a civil service twice (though we note again the possibility of mistranslation), both times in discussing the special case of U.A.E. citizens employed as local employees. Art. 20/2-20/3. While not easy to interpret, the references appear to contrast local employees and civil servants, making “civil service” a status available to local employees, if at all, only if they are also citizens of the U.A.E. Now, it must be said that under the regulations, local employees (like civil servants in this country) may be terminated only for cause; El-Hadad was, under the regulations as well as according to the district court and his own testimony, a permanent employee. Nonetheless, we find the second factor tips decisively in El-Hadad’s favor.
The third question is easily answered: While El-Hadad’s duties in Abu Dhabi were similar to his duties in Washington, there can be no question that he formally and completely terminated his employment in the U.A.E. before beginning work in the United States. The district court goes farther, stating that “[t]he evidence in the record suggests that El-Hadad’s employment at the UAE’s embassy in the District of Columbia was separate from and unrelated to his prior employment in the UAE.” El-Hadad III, slip op. at 7. Factor three favors El-Hadad.
The fourth question is more complicated. The' district court reasoned in
Elr-Hadad III
that, like laborers, clerical staff, and public relations or marketing agents, and unlike civil servants, El-Hadad “had no role in the creation of UAE government policy and was not privy to UAE political deliberations.” Slip op. at 7-8. Elaborating on the point in
Elr-Hadad IV,
the district court notes El-Hadad performed only the ordinary auditing duties of any commercial accountant and that his duties, “although important and involving large sums of money, were ministerial, not discretionary.”
The fifth question concerns an issue of central importance in
El-Hadad II,
though not here. The sentence in the House and Senate Reports classifying civil service work as governmental states in full: “Also public or governmental and not commercial in nature, would be the employment of diplomatic, civil service, or military personnel, but not the employment of American citizens or third country nationals by the foreign state in the United States.” H.R. Rep. No. 94-1487, at 16 (1976),
as reprinted in
1976 U.S.C.C.A.N. 6604, 6615;
see also
S. Rep. No. 94-1310, at 16 (1976) (identical language). At one point, in dicta, we read this language to imply a per se rule that Americans and third country nationals, even if employed by a foreign state as civil servants, count as commercial employees.
Broadbent,
Multifactor tests tend to be inconclusive, but the evidence here suggests El-Hadad is
not
a civil servant — and were the inquiry totally inconclusive, that very fact, together with the U.A.E.’s burden of proof, would decide the matter in El-Hadad’s favor. We therefore hold that El-Hadad is not a civil servant and move 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 sovereigns.”
Saudi Arabia,
One distinctive mark of governmental work is discretionary involvement with sovereign law or policy. According to the district court (and we see no reason to disturb its conclusions), El-Hadad had no role in the creation of governmental policy, and to the extent he carried it out, his duties were “ministerial, not discretionary.”
El-Hadad IV,
Ill
The U.A.E. raises six other challenges to the district court’s rulings, five of which obviously fail and one of which just as obviously succeeds.
At trial, El-Hadad testified over objection that prospective employers asked him why he left his job with the U.A.E.’s embassy and told him they could not hire him due to his penal termination. This was hearsay, the U.A.E. argues, and the district court’s findings of fact relied on it. But the testimony was hearsay only to the extent the district court used it for the truth of the matter asserted, and there is only one substantial respect in which the court might have done so: to show the U.A.E.’s defamation caused El-Hadad professional injury. Since the district court found defamation per se under D.C. law, id. at *15-16, that injury was presumed and any error was harmless. See Fed. R.Civ.P. 61.
The U.A.E. complains in two respects about the district court’s treatment of documentary evidence. First, the U.A.E. claims the district court admitted into evidence at trial documents undisclosed during discovery. But those documents, which concerned arcane intricacies of the embezzlement El-Hadad exposed, were apparently at issue in substance during discovery; in any case, nothing in the district court’s opinion turned on their obscurities. Second, the U.A.E. claims the district court’s opinion relies on a pair of documents never properly admitted into evidence at trial. Both documents, however, concern whether El-Hadad qualifies as a civil servant and were properly submitted to and used by the court in El-Hadad III; the court referenced them again in El-Hadad IV only by way of reiterating its past work. We find no error or only harmless errors in these matters. See Fed.R.Civ.P. 61.
The U.A.E. claims El-Hadad’s testimony from Egypt by Internet video violated Federal Rule of Civil Procedure 43(a), which requires “good cause” and
*669
“appropriate safeguards” before a witness is permitted to testify “by contemporaneous transmission from a different location.” But before permitting the testimony, the district court insisted that El-Hadad prove he had pursued and repeatedly been denied a visa to the United States (as well as show careful preparations for translation and teleconferencing). The U.A.E. retreats to the argument that El-Hadad’s testimony was effectively unsworn because, with no extradition treaty between the United States and Egypt, El-Hadad could not be prosecuted for perjury. But this argument’s only direct support comes from
Harrell v. State,
El-Hadad’s breach of contract claim required overcoming the District of Columbia’s usual presumption of at-will employment.
Sisco v. GSA Nat’l Capital Fed. Credit Union,
Finally, the U.A.E. attacks El-Hadad’s defamation claim, arguing in the main that the common interest privilege protects all the U.A.E.’s written and spoken statements about El-Hadad’s dishonesty. But bad faith vitiates the privilege under D.C. law,
Moss v. Stockard,
Thus we come to the U.A.E.’s complaints about damages — principally that the district court failed to discount El-Hadad’s future lost earnings to present value. We agree. “The measure of damages in an employee’s action against his employer for breach of the employment contract is generally the compensation ‘that would have been due to the employee during the unexpired period of employment
with appropriate reduction to present worth.’
”
Hodge v. Evans Fin. Corp.,
So ordered.
Notes
. We nonetheless focus our commercial activity analysis on the employment relationship between El-Hadad and the U.A.E. embassy as a whole, rather than narrowly on El-Hadad's termination alone or separately on El-Ha-dad's termination and defamation. Otherwise this case might entirely defy analysis (what would be a "commercial” or "noncommercial” breach of contract?), and split off both from
El-Hadad II,
. Not all circuits approach these questions as we do. First, while one court has, like us, expressly held that a non-civil servant (and non-diplomat, non-soldier) is not necessarily a commercial employee,
Crum v. Kingdom of Saudi Arabia,
No. 05-275,