Luis REYES-GAONA, Plaintiff-Appellant, v. NORTH CAROLINA GROWERS ASSOCIATION, INCORPORATED; Del-Al Associates, Incorporated, Defendants-Appellees.
No. 00-1963
United States Court of Appeals, Fourth Circuit
Decided May 22, 2001
250 F.3d 861
Argued April 5, 2001.
Although Blanding‘s counsel need not have drawn such an inference about Juror 47, this is the inference that he did draw and, whether or not warranted as to Juror 47 in particular, it was an inference that he was entitled to draw. It is a permissible, persuasive, race-neutral inference in the context of a peremptory challenge under the Equal Protection Clause. It is all the more so, given that not only was his client an African American, but his client was known to have publicly and vehemently opposed the flying of the confederate flag over the South Carolina State House during his term as a legislator because of his belief that such represented official acquiescence in, if not imprimatur of, a view that black Americans are not, and ought not be regarded as, equal with all other citizens.
Of course, defense counsel‘s strike could yet have been impermissible if his race-neutral explanation was in fact mere pretext for purposeful racial discrimination. However, there is nothing in the record to support a conclusion that counsel‘s concern for racial bias borne of Juror 47‘s prominent display of the confederate flag was pretext for racial discrimination against the juror because he was white. Without explanation, the district court concluded that the pretext was evident from counsel‘s demeanor. However, we are most reluctant to accept such a finding when, contemporaneous with its observance of counsel‘s demeanor, the district court concluded that counsel had proffered an impermissibly racial explanation for the strike. It is possible that, at the very same time that the court believed that counsel‘s explanation for the strike was racially based, it also believed that counsel‘s demeanor was pretextual of racial discrimination. This possibility is sufficiently unlikely, however, that we are unprepared to sustain the district court‘s decision to seat Juror 47 on this unexplained basis alone.
Accordingly, the judgment of conviction and sentence is vacated, and the case is remanded for new trial.
It is so ordered
Farm Labor Organizing Committee, AFL-CIO; Equal Employment Opportunity Commission, Amici Curiae.
ARGUED: Laurie Ann McCann, AARP Foundation Litigation, Washington, DC,
Before WILKINSON, Chief Judge, MOTZ, Circuit Judge, and DUFFY, United States District Judge for the District of South Carolina, sitting by designation.
OPINION
WILKINSON, Chief Judge:
This case requires us to decide whether the Age Discrimination in Employment Act (ADEA) covers foreign nationals who apply in foreign countries for jobs in the United States. We hold that the Act does not cover such persons. We thereby affirm the judgment of the district court, albeit on different grounds.
I.
Plaintiff Luis Reyes-Gaona is a Mexican national over the age of 40. Defendant North Carolina Growers Association (NCGA) is an American corporation that assists agricultural businesses in North Carolina in securing farm labor through the federal H-2A agricultural worker program.1 Defendant Del-Al is an agent of NCGA that recruits H-2A workers for NCGA and its members. In May 1998, Reyes-Gaona went to a Del-Al office in Mexico and asked to be placed on a list of workers seeking employment in North Carolina via the H-2A program. Del-Al told Reyes-Gaona that NCGA would not accept workers over forty years old unless that person had worked for NCGA before. Reyes-Gaona filed suit against NCGA and Del-Al, alleging age discrimination in violation of the ADEA.
As the district court noted, an ADEA plaintiff must prove, inter alia, that he was qualified for the job he sought. Under Fourth Circuit precedent, for a foreign national to be “qualified” for a position, he must be authorized for employment in the United States at the time in question. See Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184, 187 (4th Cir. 1998) (en banc) (per curiam). The district court granted defendants’ Rule 12(b)(6) motion to dismiss because it was undisputed that Reyes-Gaona was not authorized
II.
Plaintiff is a foreign national who applied in a foreign country for work in the United States. Accordingly, we begin, as we must, by acknowledging the “long-standing principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.‘” EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991) (quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949)). This interpretive canon is an especially important one as it “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.” Id. Thus, the presumption against extra-territorial application of a federal statute can be overcome only if there is an “affirmative intention of the Congress clearly expressed.” Id. (quoting Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 147 (1957)). Since this determination is necessarily “a matter of statutory construction,” Arabian, 499 U.S. at 248, we begin with the text of the ADEA itself.
The ADEA makes it unlawful “for an employer” to “fail or refuse to hire” or “otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual‘s age.”
Based on the exclusionary language adopted from the FLSA, many courts held that, before 1984, the ADEA had a purely domestic focus and did not cover American citizens working for American companies in foreign countries. See, e.g., Thomas v. Brown & Root, Inc., 745 F.2d 279, 281 (4th Cir. 1984) (per curiam).2 The presumption against the extra-territorial application of American laws required this result because absent a clear statement from Congress, the scope of American law is limited to “the territorial jurisdiction of the United States.” Arabian, 499 U.S. at 244. Thus the presumption pre-
In 1984, Congress partially closed this gap. Congress responded to the Thomas line of cases by amending the ADEA to give it limited extra-territorial application. The definition of “employee” was amended to include “any individual who is a citizen of the United States employed by an employer in a workplace in a foreign country.”
These amendments demonstrated that “when it desires to do so, Congress knows how to” expand “the jurisdictional reach of a statute.” Arabian, 499 U.S. at 258. According to the Arabian Court, “after several courts had held that the ADEA did not apply overseas” Congress enacted a set of changes whose “expressed purpose . . . was to make ‘provisions of the Act apply to citizens of the United States employed in foreign countries by U.S. corporations or their subsidiaries.‘” Id. at 259 (quoting S.Rep. No. 98-467, at 2 (1984), U.S.C.C.A.N. at 2975). Notably missing from the 1984 amendments, however, is any provision regulating the conduct at issue here. Congress explicitly gave the ADEA extra-territorial application with respect to certain U.S. citizens while simultaneously declining to extend coverage to foreign nationals like Reyes-Gaona. Nothing in the amendments regulates age discrimination by U.S. corporations against foreign nationals in foreign countries. And the doctrine of expressio unius est exclusio alterius instructs that where a law expressly describes a particular situation to which it shall apply, what was omitted or excluded was intended to be omitted or excluded. Indeed, neither Reyes-Gaona nor the Equal Employment Opportunity Commission (EEOC) cites a case, and we can find none ourselves, where the ADEA was interpreted to reach a situation analogous to the case at bar. Thus, a faithful reading of the plain text of the statute, especially in light of the 1984 amendments, compels the conclusion that Reyes-Gaona‘s claim is not sustainable under the ADEA.
Reyes-Gaona and the EEOC disagree. They claim that this case does not require extra-territorial application of the ADEA because the job Reyes-Gaona applied for was in the United States.3 The crux of
We are not persuaded. All of these statutory references come from the 1984 amendments to the ADEA which, as previously explained, do not cover Reyes-Gaona. Nothing in the ADEA provides that it shall apply anytime the workplace is in the United States regardless of the nationality of the applicant or the country in which the application was submitted. And the fact that the 1984 amendments refer to workplace does not mean that the Act focuses on work situs to the exclusion of the situs of the application or the nationality of the applicant. Indeed, the EEOC is insisting that the presumption against extra-territoriality has no applicability even when a foreign national submits a job application in a foreign country.
In addition to its statutory argument, the EEOC cites various decisions from the Thomas line of cases, see supra n. 2, all of which involved events that preceded the 1984 amendments. The EEOC claims these cases prove that courts look to the employee‘s actual or proposed work situs to determine whether the ADEA is being applied in an extra-territorial manner. This is not, however, what these cases demonstrate. As discussed above, the Thomas line of cases stands for the rather unremarkable proposition that before 1984 the ADEA had no extra-territorial application at all—not even for U.S. citizens working abroad for American companies. The fact that some suits were barred because of the international location of the employee‘s workstation says nothing about whether a foreign national can file suit under the ADEA merely because the proposed workstation is in the United States.
The simple submission of a resume abroad does not confer the right to file an ADEA action. Indeed, such a broad reading of the Act could have staggering consequences for American companies. Expanding the ADEA to cover millions of foreign nationals who file an overseas application for U.S. employment could exponentially increase the number of suits filed and result in substantial litigation costs. If such a step is to be taken, it must be taken via a clear and unambiguous statement from Congress rather than by judicial fiat.
III.
The Supreme Court has instructed the lower courts to take seriously the presumption against extra-territorial application of U.S. laws. In keeping with these instructions, many lower courts, including this one, held that the ADEA had no extra-territorial application prior to 1984. Congress responded by amending the Act to provide for limited extra-territorial reach. Since these amendments do not reach the case at bar, there remains nothing in the text of the ADEA to rebut the presumption against extending it to cover Reyes-Gaona. And the limited nature of the 1984 amendments indicates that foreign nationals in foreign countries are not
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
DIANA GRIBBON MOTZ, Circuit Judge, concurring in the judgment:
I concur in the judgment because I agree that no authority compels application of the ADEA to a situation, like that here, in which a foreign national applies in his home country for a job in the United States.
In support of their contention that they are not requesting extra-territorial application of the ADEA, Luis Reyes-Gaona and the EEOC rely on several cases in which courts have denied, on extra-territoriality grounds, the ADEA claims of legal aliens who applied in the United States for work abroad. See Hu v. Skadden, Arps, Slate, Meagher & Flom LLP, 76 F. Supp. 2d 476, 477 (S.D.N.Y. 1999) (“Although Hu conducted his job search in the United States, the employment he sought was to be performed outside the country. The fact that Skadden conducted employment interviews in New York and may have made hiring decisions in New York does not suffice to render the employment within the United States for ADEA purposes.“); see also Denty v. SmithKline Beecham Corp., 109 F.3d 147, 150 n. 5 (3rd Cir. 1997) (denying claim of legal alien who applied in the United States for a position abroad on the ground that the place where the job is to be performed constitutes the location of the work site for ADEA purposes).
Reyes-Gaona and the EEOC argue that these authorities stand for the principle that courts look to the place of employment, not the place of the job application, in determining whether the ADEA reaches a given claim, or whether permitting the claim would require the extra-territorial application of the statute. In the case at hand, they maintain that the place of employment is the United States, so the ADEA applies to Reyes-Gaona‘s claim.
The authorities cited by Reyes-Gaona and the EEOC, however, do not present the same situation as this case; indeed, they present the reverse situation. Whereas the case at hand involves a foreign national applying outside the country for a position in the United States, those cases involved a foreign national applying in the United States for a position outside the country. The fact that the ADEA did not apply in those cases does not compel the conclusion that it does apply to this one. For this reason, I join in the judgment.
I emphasize that the decision reached by the court in this case does not conflict with the generally accepted principle that statutes affording protection from employment discrimination, such as Title VII and the ADEA, apply to foreign nationals who are legally employed in the United States. See Espinoza v. Farah Mfg. Co., 414 U.S. 86, 95 (1973) (“We agree that aliens are protected under [Title VII].“); Boureslan v. Aramco, Arabian American Oil Co., 892 F.2d 1271, 1273 (5th Cir. 1990) (holding that Congress intended to “provide Title VII coverage to aliens employed within the United States“); O‘Loughlin v. The Pritchard Corp., 972 F. Supp. 1352, 1363-64 (D. Kan. 1997) (The ADEA “in general protects noncitizens of the United States from unlawful discrimination.“). Had Reyes-Gaona been hired by NCGA, once he began work in this country, the ADEA would have protected him from unlawful employment discrimination.