El-Hadad v. United Arab Emirates

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 13, 2007 Decided July 27, 2007

No. 06-7075

MOHAMED SALEM EL-HADAD ,
APPELLEE

v.

UNITED ARAB EMIRATES AND
THE EMBASSY OF THE UNITED ARAB EMIRATES,
APPELLANTS

Appeal from the United States District Court
for the District of Columbia
(No. 96cv01943)

Mary M. Baker argued the cause for appellants. With her
on the briefs was Haig V. Kalbian.

Philip M. Musolino argued the cause for appellee. With
him on the brief were Sylvia J. Rolinski and Danielle M. Espinet

Before: TATEL, GARLAND and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN .

BROWN , Circuit Judge: The chief question in this appeal is
whether the Foreign Sovereign Immunities Act of 1976, 28
 2

U.S.C. § 1602 et seq., shields the United Arab Emirates from the
wrongful termination and defamation suit of its former em-
ployee, 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-Hadad’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,
2006 WL 826098 (D.D.C. Mar. 29, 2006); FED . R. CIV . P. 52(a).

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., 216 F.3d 29, 33 & n.6 (D.C. Cir. 2000)). In
1992, he formally resigned to begin work at the U.A.E.’s
embassy in Washington, where he was an auditor and
supervising accountant in the cultural attaché’s office—and
where he soon discovered that the cultural attaché, his deputy,
and others were involved in embezzling no less than $2 million
in U.A.E. state funds. El-Hadad exposed the embezzlement and
 3

helped with the subsequent investigation. In 1994, he was
promoted and commended for his work while the cultural
attaché and his accomplices were sacked.

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, 2006 WL 826098, at *4
(quoting Pl.’s Ex. 85). In fact, the U.A.E.’s Ambassador to the
United States, the Minister of Finance, and the new cultural
attaché each sent multiple letters vouching for El-Hadad’s
character and competence and refuting the allegations against
him point-by-point—views the district court seconded in its
factual findings, concluding that the documents in the record
“demonstrate either that the alleged impropriety was not, in fact,
improper or that if there was any fault, it lay elsewhere, such as
with the embezzlers El-Hadad had detected and reported.” Id.
Nonetheless, the department named in the Minister of Finance’s
letter, the Ministry of Higher Education and Scientific Research,
had final authority over El-Hadad’s employment in the cultural
attaché’s office and, in 1996, ordered penal dismissal along with
fines for the money El-Hadad allegedly mishandled.

After he was fired, El-Hadad briefly found work as an
auditor with the U.A.E.’s military attaché, 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
 4

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
attaché. 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” excep-
tion, denied the motion. El-Hadad v. Embassy of U.A.E., 69 F.
Supp. 2d 69 (D.D.C. 1999) (El-Hadad I). On interlocutory
appeal (under the collateral order doctrine), we reversed in part
and remanded with a list of questions for the district court to
answer before characterizing the employment relationship
between El-Hadad and the U.A.E. as commercial. El-Hadad v.
U.A.E., 216 F.3d 29 (D.C. Cir. 2000) (El-Hadad II). Applying
the analytic framework we had laid out, the district court once
again held the commercial activity exception to apply. El-
Hadad v. Embassy of U.A.E., No. 96-1943 (D.D.C. July 16,
2001) (El-Hadad III). The parties agreed to a bench trial, after
which the district court reaffirmed its decision to deny immunity
and concluded on the merits that the U.A.E. breached its
employment contract with El-Hadad ($1,245,961 in damages,
plus interest) and defamed him ($500,000 in damages). El-
Hadad v. Embassy of U.A.E., No. 96-1943, 2006 WL 826098
(D.D.C. Mar. 29, 2006) (El-Hadad IV). The U.A.E. now
appeals.
 5

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 recommenda-
tions to suspend immunity). Verlinden B.V. v. Cent. Bank of
Nig., 461 U.S. 480, 486–88 (1983) (discussing the legacy of
Chief Justice Marshall’s opinion in The Schooner Exchange v.
M’Faddon, 11 U.S. (7 Cranch) 116 (1812)). But almost from
the outset, courts recognized a distinction “between the public
and governmental acts of sovereign states on the one hand and
their private and commercial acts on the other.” Alfred Dunhill
of London, Inc. v. Republic of Cuba, 425 U.S. 682, 695 (1976);
see also United States v. Planters’ Bank of Ga., 22 U.S. (9
Wheat) 904, 907 (1824) (Marshall, C.J.) (“[W]hen a government
becomes a partner in any trading company, it devests itself, so
far as concerns the transactions of that company, of its sovereign
character, and takes that of a private citizen.”). That distinction
became the basis for a “‘restrictive’ theory of foreign sovereign
immunity,” a theory Congress codified in the Foreign Sovereign
Immunities Act of 1976. Verlinden B.V., 461 U.S. at 487. So
while the Act announces that foreign states “shall be immune
from the jurisdiction of the courts of the United States and of the
States,” 28 U.S.C. § 1604, the Act’s principal effect is in the list
of exceptions that follows, and the “most significant” exception,
Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 611
(1992), the one at the heart of the restrictive theory as a whole
and at issue in this appeal, is the commercial activity exception
of § 1605(a)(2): “A foreign state shall not be immune . . . in any
case . . . in which the action is based upon a commercial activity
carried on in the United States by the foreign state . . . .” A state
engages in commercial activity, the Supreme Court has ex-
plained (since the Act never defines the term), “where it
 6

exercises ‘only those powers that can also be exercised by
private citizens,’ as distinct from those ‘powers peculiar to
sovereigns,’” Saudi Arabia v. Nelson, 507 U.S. 349, 360 (1993)
(quoting Republic of Argentina, 504 U.S. at 614) (internal
quotation marks omitted).

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, 507 U.S.
at 357 (holding that the term “based upon” in the Act indicates
“those elements of a claim that, if proven, would entitle a
plaintiff to relief under his theory of the case”).1 The Act
doesn’t speak directly to this context, but its legislative history
does: “[P]ublic or governmental and not commercial in nature,
would be the employment of diplomatic, civil service, or

1
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-Hadad’s termination and defamation. Otherwise this
case might entirely defy analysis (what would be a “commercial” or
“non-commercial” breach of contract?), and split off both from El-
Hadad II, 216 F.3d at 34–36, and from other circuits’ handling of
FSIA challenges to wrongful termination (and related) claims, see,
e.g., Kato v. Ishihara, 360 F.3d 106, 111–12 (2d Cir. 2004); Holden
v. Canadian Consulate, 92 F.3d 918, 921 (9th Cir. 1996); Segni v.
Commercial Office of Spain, 835 F.2d 160, 164–66 (7th Cir. 1987).
In fact, much can turn on the activity chosen for the commercial
activity analysis, though the issue is not in dispute in our case.
Compare Saudi Arabia, 507 U.S. at 358 (holding the relevant act to be
misusing state police to imprison and torture a hospital worker), with
id. at 365 (White, J., concurring) (regarding the relevant act as
“run[ning] and operat[ing] a hospital”); see also Butters v. Vance Int’l,
Inc., 225 F.3d 462, 465 (4th Cir. 2000) (holding the relevant act to be
“how best to secure the safety of [Saudi Arabia’s] leaders” in a female
security agent’s Title VII claim against Saudi Arabia).
 7

military personnel,” while commercial and not public or
governmental in nature would be the “employment or engage-
ment of laborers, clerical staff, or public relations or marketing
agents.” 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). Thus, like many of our sister
circuits, we have held that a foreign government’s civil servants
(and diplomats and soldiers) do not qualify for the commercial
activity exception. El-Hadad II, 216 F.3d at 34 (citing
Broadbent v. Organization of American States, 628 F.2d 27,
34–36 (D.C. Cir. 1980)); see also Kato v. Ishihara, 360 F.3d
106, 111–12 (2d Cir. 2004); Holden v. Canadian Consulate, 92
F.3d 918, 921 (9th Cir. 1996); Segni v. Commercial Office of
Spain, 835 F.2d 160, 164–66 (7th Cir. 1987). We have not and
do not affirm the converse: A foreign government’s employee
might not be a civil servant (or diplomat or soldier) and still be
engaged in quintessentially governmental work—like, for
example, a judge. Thus, if El-Hadad is a civil servant, our
analysis stops for we have determined that the U.A.E. is immune
from his suit. If El-Hadad is not a civil servant, we go on to
scrutinize whether his work involves the exercise of “powers
that can also be exercised by private citizens, as distinct from
those powers peculiar to sovereigns.” Saudi Arabia, 507 U.S. at
360 (internal quotation marks omitted). As we framed it in El-
Hadad II: “[T]he operative question is whether El-Hadad was
a member of the U.A.E.’s civil service” and “[t]he ultimate
question . . . is whether El-Hadad’s employment constituted
commercial activity.” 216 F.3d at 34. Of course, the first
inquiry might well illuminate the second.2

2
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, 2005 WL 3752271,
at *4 (E.D. Va. July 13, 2005), another has suggested the opposite,
Holden, 92 F.3d at 921, and still others have seemed to assume the
 8

There is no definition of “civil service” in the Foreign
Sovereign Immunities Act or its legislative history and associ-
ated 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 “sacrific[e] the immunity
conferred by FSIA.” Kato, 360 F.3d at 113. And in fact, our
country’s notion of a civil service, conceived as an antidote to
political patronage, tends to include “clerical staff, or public
relations or marketing agents” and exclude many

opposite, see, e.g., Segni, 835 F.2d at 164–65. To our eyes, the phrase
in the House and Senate Reports that undergirds this area of jurispru-
dence, “diplomatic, civil service, or military personnel,” is plainly
meant to be illustrative and not exhaustive (and wouldn’t make sense
if read to be exhaustive). In addition, it would be difficult to square
the rule that non-civil servants (and non-diplomats or non-soldiers) are
necessarily commercial with cases thoughtfully engaging the commer-
cial activity exception in the employment context where the civil
servant (diplomat, soldier) issue simply doesn’t arise. See, e.g., Janini
v. Kuwait Univ., 43 F.3d 1534 (D.C. Cir. 1995). Second, and
relatedly, not all circuits have taken the same two-stage approach we
have to the operative question of whether plaintiff is a civil servant
and the ultimate question of whether his activity is commercial. The
Second Circuit treats the civil servant question as quite secondary
(“merely [an] example[]” to be used, if at all, only to aid in making the
“central” commercial/governmental distinction). Kato, 360 F.3d at
111. The Ninth Circuit, on the other hand, treats the civil servant
question as effectively superseding the commercial/governmental
distinction. Holden, 92 F.3d at 921. The Seventh Circuit melds the
two together such that exercises of peculiarly governmental power
become the chief mark of a civil servant, while exercises of power
common to private citizens mark a commercial employee. Segni, 835
F.2d at 164–65. We think it makes most sense to conduct two separate
but complementary inquiries, keeping the civil service inquiry glued
to, but not subsumed by, the statutory command from which it comes.
 9

policymakers—exactly the opposite of the House and Senate
Reports’ apparent aim. The notion of public service might be a
closer proxy for that aim. On the other hand, some countries
might lack the notion of a “civil service” altogether, and others
might define the notion in a way far afield of FSIA’s purpose.
We therefore take a flexible and inclusive approach to determin-
ing whether a foreign government’s employee is a civil servant.
El-Hadad II lists five generally relevant considerations, while
noting that the list is not exclusive, necessarily applicable in all
cases, or, unfortunately (but unavoidably), analytically precise:

First, how do the U.A.E.’s own laws define its civil service,
and do El-Hadad’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 contrac-
tual 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-Hadad’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 long-
time resident and member of its domestic civil service, who
was merely “transferred” to Washington to perform the
same functions (governmental audits) he had been perform-
ing at home. El-Hadad 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-Hadad’s work? As noted
above, Congress indicated that the “employment or engage-
ment of laborers, clerical staff or public relations or market-
 10

ing agents” would come within the definition of commer-
cial activity.

Fifth, what is the relevance of El-Hadad’s Egyptian nation-
ality 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?

216 F.3d at 34 (internal citation omitted). The district court
applied this list to the facts in El-Hadad III and repeated the core
of its analysis in El-Hadad IV. The task isn’t easy. The
evidence is meager, sometimes contradictory, and the question
is exceedingly close. Thus it is of great importance in this case
that the foreign sovereign has the burden of proof. Princz v.
F.R.G., 26 F.3d 1166, 1171 (D.C. Cir. 1994).

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 is powerful evidence that El-Hadad
was not a civil servant according to U.A.E. law. Even if the
 11

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-Hadad was employed in
all respects pursuant to the U.A.E.’s “Local Employees Regula-
tions 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 “[a]dministrative 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 com-
mercial 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-
 12

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 employ-
ment 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 El-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 El-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.” 2006 WL 826098, at *6. We
agree that, to the extent El-Hadad lacked authority to determine
or articulate policy and lacked discretion in his duties, he is
more like the employees for whom Congress intended FSIA’s
commercial exception, and less like a civil servant. What gives
us pause is El-Hadad’s supervisory authority over at least eight
other accountants in the cultural attaché’s office. He was a “part
of the . . . government,” Holden, 92 F.3d at 921, in a way an
administrative assistant, for example, would not be. On balance,
we find his lack of discretion and exclusion from any policy-
making role outweighs his supervisory role. Thus factor four
resolves in El-Hadad’s favor as well—though by a very narrow
margin indeed.
 13

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 Ameri-
cans and third country nationals, even if employed by a foreign
state as civil servants, count as commercial employees.
Broadbent, 628 F.2d at 34 (D.C. Cir. 1980). The district court’s
decision on the U.A.E.’s immunity in El-Hadad I turned on this
dictum. 69 F. Supp. 2d at 74–76. But in El-Hadad II, impressed
with the situation of small countries like the U.A.E. that at times
employ non-nationals in high governmental positions, we
rejected Broadbent’s per se rule and held that “a foreign state
can engage in noncommercial (i.e., governmental) activity
through third country nationals.” 216 F.3d at 33. Thus the
relevance of a plaintiff’s nationality for the civil service inquiry
becomes a matter of context. Where a country rarely if ever
hires non-citizens for its civil service (unlike the U.A.E.), non-
citizenship strongly indicates that someone is not a civil servant.
And in our view, citizenship makes someone more likely to
qualify as a civil servant even if a country sometimes hires non-
citizens as civil servants. Accord Segni, 835 F.2d at 165 n.7
(“[A] person hired by his own country’s government to work
abroad should have a somewhat lesser expectation of suing his
homeland in his host nation’s courts.”). Thus, were El-Hadad a
U.A.E. citizen, the U.A.E. might press its advantage, and were
non-citizens rarely if ever U.A.E. civil servants, El-Hadad might
press his. As it is, El-Hadad’s nationality is all but irrelevant.
 14

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, 507 U.S. at 360 (internal quotation marks
omitted). In so doing, we bear in mind a limiting principle from
the statute: “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). One could question whether it
is possible to determine the nature of a human activity without
reference to its purpose, De Sanchez v. Banco Central de
Nicaragua, 770 F.2d 1385, 1393 (5th Cir. 1985) (“Often, the
essence of an act is defined by its purpose—gift-giving, for
example.”), but the Supreme Court has insisted that the statutory
command be carried out, Republic of Argentina, 504 U.S. at 617
(“[The 5th Circuit’s] argument is squarely foreclosed by the
language of FSIA.”), which in practice means rejecting any
argument that rests on the foreign state’s reasons for undertak-
ing the activity alleged to be commercial, id. (“[I]t is irrelevant
why Argentina participated in the bond market in the manner of
a private actor; it matters only that it did so.” (emphasis in
original)). We cannot attend to whether a foreign government
aims to make a profit or protect its borders, whether El-Hadad’s
work aimed to carry out an international political program or to
keep the cultural attaché’s office supplied with pens and pencils.
We can look only to the resemblance between “the outward
form” of his conduct and powers and those of private citizens.
Id.
 15

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, 2006 WL 826098, at *6.
Instead, El-Hadad did standard accounting work—“auditing
expenditures, reviewing accounting methods, reconciling bank
statements or employing auditors to conduct these activities,” id.
at *7—of a character easily found in commercial enterprise. We
therefore affirm the district court’s conclusion that El-Hadad’s
employment was commercial rather than governmental, and
agree El-Hadad’s suit is authorized under the Foreign Sovereign
Immunity Act’s commercial activity exception.

III

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.
 16

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 docu-
ments 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 “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, 709 So. 2d
1364, 1371 (Fla. 1998), which concerns the very different issues
at stake in applying the Sixth Amendment’s Confrontation
Clause in the criminal context. In fact, Rule 43 permits video
testimony, and its criminal equivalent (Federal Rule of Criminal
Procedure 26) doesn’t, precisely because the Supreme Court
found the criminal context too sensitive for the same rule. See
 17

Order of the Supreme Court, 207 F.R.D. 89, 93–96 (2002)
(Scalia, J.); United States v. Yates, 438 F.3d 1307, 1314–15
(11th Cir. 2006).

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,
689 A.2d 52, 54–55 (D.C. 1997). A properly distributed
employee manual with specific termination provisions can do
the job, id.; see also Byrne v. Nat’l R.R. Passenger Co., 184 Fed.
Appx. 6 (D.C. Cir. 2006) (unpublished per curiam), and the
district court found the Local Employees Regulations—whose
termination provisions provide for dismissal where, for example,
an employee’s dereliction of duty destroys valuable embassy
property or compromises official documents, Art. 17/7—to
qualify, El-Hadad IV, 2006 WL 826098, at *11. The U.A.E.
counters, primarily, that the evidence showing the Regulations
to have been distributed was too weak for the district court’s
conclusion. The evidence is weak—at least it is vague—but El-
Hadad himself testified to distribution, and several other
witnesses supported the claim. That is enough under our
“clearly erroneous” standard of review. FED . R. CIV . P. 52(a).

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, 580 A.2d 1011, 1024–25 (D.C. 1990), and we
have not the slightest difficulty affirming the district court’s
findings of bad faith, El-Hadad IV, 2006 WL 826098, at
*16–17.

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.
 18

“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., 823 F.2d 559,
569 (D.C. Cir. 1987) (emphasis added) (internal quotation mark
omitted) (quoting District of Columbia v. Jones, 442 A.2d 512,
524 (D.C. 1982). The district court here noted the requirement,
El-Hadad IV, 2006 WL 826098, at *12, but in the event appears
to have overlooked it, id. at *13 n.14. We therefore must
reverse in part and remand solely for the district court to
perform this task. In all other respects, the district court is
affirmed.

So ordered.