PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: ABDULAZIZ SALEM TAMIMI,
Debtor-in-possession.
SAUDI ARABIAN AIRLINES
CORPORATION, No. 98-1423
Garnishee-Appellant,
v.
SHARON L. TAMIMI,
Creditor-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-97-1004-A)
Argued: January 27, 1999
Decided: May 21, 1999
Before WIDENER, MURNAGHAN, and HAMILTON,
Circuit Judges.
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Remanded with instructions to dismiss by published opinion. Judge
Hamilton wrote the opinion, in which Judge Widener and Judge
Murnaghan joined.
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COUNSEL
ARGUED: William Arthur Nelson, Arlington, Virginia, for Appel-
lant. Gordon Bertram Gray, Falmouth, Virginia, for Appellee.
OPINION
HAMILTON, Circuit Judge:
Saudi Arabian Airlines Corporation (Saudi) appeals the district
court's denial of its motion to dismiss the garnishment action brought
against it by Sharon L. Tamimi. See Fed. R. Civ. P. 12(b)(1). For the
reasons that follow, we remand this matter to the district court with
instructions to dismiss for lack of subject-matter jurisdiction under the
Foreign Sovereign Immunities Act (FSIA), 28 U.S.C.§ 1602 et seq.
I.
Abdulaziz Tamimi (Abdulaziz) and Sharon L. Tamimi (Sharon)
were married on May 19, 1978 in Columbus, Ohio. The couple has
two minor children. Abdulaziz is an employee of Saudi, a foreign cor-
poration wholly owned by the country of Saudi Arabia. Abdulaziz has
worked for Saudi, both in the United States and in Saudi Arabia, from
1990 to the present.
In January 1992, Abdulaziz deserted Sharon and their two minor
children, filed for bankruptcy under the laws of the United States, and
returned to Saudi Arabia. Sharon then commenced an action in the
Circuit Court for Stafford County, Virginia seeking: (1) divorce from
Abdulaziz; (2) custody of the two minor children; and (3) support
from Abdulaziz. Sharon was awarded custody of the two minor chil-
dren and child support in the amount of $448 per month. While Shar-
on's divorce case was pending in the Circuit Court for Stafford
County, Abdulaziz divorced Sharon, without notice or proceedings, in
Saudi Arabia under the laws of that country. Abdulaziz subsequently
remarried and now has two children from his second marriage.
In January 1996, Abdulaziz returned to the United States with his
new wife so she could give birth to one of their children. On January
13, 1996, Abdulaziz was arrested in Virginia for the criminal charge
of non-payment of child support to Sharon. Bail was set for $21,000,
the amount of child support in arrears. Abdulaziz did not post bail,
and on February 5, 1996, the Stafford County Juvenile and Domestic
Relations Court (the Domestic Relations Court) took up the matter.
2
At that time, upon motion of all the parties, the case was continued
until February 8, 1996. Abdulaziz was released on his own recogni-
zance on the conditions that he remain in the United States, surrender
his passport to the Domestic Relations Court, and return to the
Domestic Relations Court on February 8, 1996.
On February 6, 1996, Saudi sent Sharon a letter (Letter), signed by
Saleh A. Sulaiman, the Senior Manager of Government Relations at
Saudi, that stated that Abdulaziz had "irrevocably authorized and
directed Saudi Arabian Airlines to deduct from his salary up to $500
(Five Hundred Dollars) per month for child support payment. . . ."
(J.A. 19). Saudi further pledged to "implement the terms of this letter
as long as [Abdulaziz] is working for [Saudi]." Id.
On February 8, 1996, the Domestic Relations Court ordered that
Abdulaziz's passport be returned after he paid Sharon $1000. The
Domestic Relations Court further ordered that the criminal case be
continued until February 8, 1997, at which time the Domestic Rela-
tions Court would review the criminal case and dismiss it, provided
that Abdulaziz made child support payments of $500 per month ($448
in support and $52 to be applied to the arrearage).
On February 11, 1997, the Domestic Relations Court took up the
criminal case again. Abdulaziz was present; however, when the
Domestic Relations Court requested information pertaining to his
income, Abdulaziz claimed not to know his salary from Saudi or the
exchange rate to convert that figure from Saudi reyals to United
States dollars. The case was continued until April 8, 1997, at which
time Abdulaziz was to reappear with the requisite information.
Abdulaziz did not appear in Domestic Relations Court on April 8,
1997, and a warrant for his arrest was issued; the record is silent as
to the current status of this warrant. The Domestic Relations Court
also adjusted Abdulaziz's child support obligations to $967.86 per
month.1 Abdulaziz currently remains under an order from the Domes-
tic Relations Court to pay child support in the amount of $967.86 per
month.
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1 Unlike its order in February 1996, the Domestic Relations Court did
not state what amount of the $967.86, if any, was to be applied to the
child support in arrears.
3
On that same day, April 8, 1997, the Domestic Relations Court
granted Sharon judgment for the child support arrearage in the
amount of $16,710.00.2 The Domestic Relations Court then issued a
garnishment summons that was served on Saudi and Abdulaziz,
through Saudi's attorney. The summons was for the $16,710 in child
support arrearage, plus $432.60 in interest and $71.50 in costs, total-
ing $17,222.10.
To collect the child support arrearage, Sharon proceeded with a
garnishment action in the Circuit Court for Stafford County, Virginia
to garnish the monthly salary of Abdulaziz. On June 27, 1997, pursu-
ant to 28 U.S.C. § 1441(d), Saudi, as the garnishee, removed the gar-
nishment action to the United States District Court for the Eastern
District of Virginia. On July 7, 1997, Saudi filed a motion to dismiss,
see Fed. R. Civ. P. 12(b)(1), asserting that it is a "foreign state" within
the meaning of § 1603 of the FSIA and, therefore, entitled to sover-
eign immunity from court actions, including garnishment actions. In
her answer to Saudi's motion to dismiss, Sharon produced the Letter,
and the district court held, on the basis of the Letter, that Saudi had
waived, by implication, its sovereign immunity under§ 1605(a)(1) of
the FSIA. The district court alternatively held that, because Saudi is
an airline that regularly conducts business in the United States and in
Virginia, it was not entitled to sovereign immunity under the "com-
mercial activity" exception contained in the FSIA. See 28 U.S.C.
§ 1605(a)(2). Accordingly, Saudi's motion to dismiss was denied by
the district court.
Subsequently, Saudi renewed its motion to dismiss claiming that
the district court misapplied the law of sovereign immunity and its
exceptions under the FSIA. On February 20, 1998, the district court
denied Saudi's renewed motion to dismiss. Saudi noticed this timely
appeal.
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2 Abdulaziz made the required support payments of $500 from Febru-
ary 1996 to April 1997 and has continued to make the requisite support
payments of $967.86 from April 1997 to the present time.
4
II.
Saudi contends that the district court erroneously denied its motion
to dismiss by misapplying the law of sovereign immunity and its
exceptions under the FSIA. We review applications of the FSIA de
novo. See Drexel Burnham Lambert v. Committee of Receivers, 12
F.3d 317, 324 (2d Cir. 1993).
The FSIA sets forth the sole and exclusive standards to be used to
resolve sovereign immunity issues raised by a foreign state in federal
and state courts. See Argentine Republic v. Amerada Hess Shipping,
488 U.S. 428, 434 (1989); Arriba Ltd. v. Petroleos Mexicanos, 962
F.2d 528, 532 (5th Cir. 1992). The FSIA provides that:
[s]ubject to existing international agreements to which the
United States is a party at the time of enactment of this Act
a foreign state shall be immune from the jurisdiction of the
courts of the United States and the States except as provided
in sections 1605 to 1607 of this chapter.
28 U.S.C. § 1604.
Under the FSIA, a foreign state is entitled to sovereign immunity
unless the plaintiff demonstrates that one of the exceptions to sover-
eign immunity applies. See Arriba Ltd., 962 F.2d at 533. If no excep-
tion to sovereign immunity is applicable, courts"lack[ ] both statutory
subject-matter jurisdiction and personal jurisdiction." Verlinden B.V.
v. Central Bank of Nigeria, 461 U.S. 480, 485 n.5 (1983).
The FSIA defines a "foreign state" as "a political subdivision of a
foreign state or an agency or instrumentality of a foreign state. . . ."
28 U.S.C. § 1603(a). The FSIA defines an "agency or instrumentality
of a foreign state" as:
any entity . . . which is a separate legal person, corporate or
otherwise, and . . . which is an organ of a foreign state or
political subdivision thereof, or a majority of whose shares
or other ownership interest is owned by a foreign state or
political subdivision thereof, and . . . which is[not] a citizen
of a state of the United States. . . .
5
28 U.S.C. § 1603(b)(1)-(b)(3).
Saudi is a corporation wholly owned by the country of Saudi Ara-
bia and, therefore, is a "foreign state" under the FSIA. See Forsythe
v. Saudi Arabian Airlines Corp., 885 F.2d 285, 287 n.1 (5th Cir.
1989); Branko Intn'l., Inc. v. Saudi Arabian Airlines, 704 F. Supp.
386, 387 (S.D.N.Y.), aff'd, 880 F.2d 1318 (2d Cir. 1989); In Re
Disaster at Riyadh Airport, 540 F. Supp. 1141, 1150 (D.D.C. 1982).
As a "foreign state," Saudi is entitled to sovereign immunity under the
FSIA unless one of the exceptions to sovereign immunity applies. See
Arriba Ltd., 962 F.2d at 532.
Only two of the FSIA's exceptions are at issue here, the exceptions
regarding waiver and commercial activity. Section 1605(a)(1) con-
tains the FSIA's waiver provision and states that:
[a] foreign state shall not be immune from the jurisdiction
of courts of the United States or of the States in any case . . .
in which the foreign state has waived its immunity either
explicitly or by implication, notwithstanding any withdrawal
of the waiver which the foreign state may purport to effect
except in accordance with the terms of the waiver. .. .
28 U.S.C. § 1605(a)(1). Waiver under the FSIA is rarely accom-
plished by implication. See Rodriguez v. Transnave, Inc., 8 F.3d 284,
287 (5th Cir. 1993). Explicit waivers are more frequently honored. Id.
Further, courts have consistently held that the implicit waiver provi-
sion of § 1605(a)(1) must be construed narrowly. See, e.g., Foremost-
McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 444 (D.C.
Cir. 1990); Joseph v. Office of the Consulate General of Nigeria, 830
F.2d 1018, 1022 (9th Cir. 1987), cert. denied , 485 U.S. 905 (1988);
Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 377
(7th Cir. 1985). This approach is derived from the legislative history
of the FSIA, in which Congress specified three examples of implicit
waivers: (1) a foreign state has agreed to arbitration in another coun-
try; (2) a foreign state has agreed that a contract is governed by the
law of a particular country; and (3) a foreign state has filed a respon-
sive pleading in a case without raising the defense of sovereign
immunity. See H. R. Rep. No. 1487, 94th Cong., 2d Sess. 18,
reprinted in 1976 U.S. Code Cong. & Admin. News 6604, 6617; S.
Rep. No. 1310, 94th Cong., 2d Sess. 18. "Since the FSIA became law,
courts have been reluctant to stray beyond these examples when con-
6
sidering claims that a nation waived its defense of sovereign immu-
nity." Frolova, 761 F.2d at 377. These three examples involve
circumstances in which the implicit waiver was unmistakable; courts
have consistently refused to find an implicit waiver where the circum-
stances are not similarly unambiguous. See Shapiro v. Republic of
Bolivia, 930 F.2d 1013, 1017 (2d Cir. 1991).
In the instant case, Sharon claims that the Letter, sent to her by
Saudi, constitutes an implicit waiver under § 1605(a)(1). Saudi argues
that no implicit waiver has occurred. Since the parties agree that the
Letter contains no explicit waiver, we must determine if it contains
an implicit waiver. The Letter reads, in its entirety:
This letter is being written to certify that [Abdulaziz] has
irrevocably authorized and directed Saudi Arabian Airlines
to deduct from his salary up to $500.00 (Five Hundred Dol-
lars) per month for child support payments for Ramsey and
Samirah Tamimi. The child support payments are to be sent
to you monthly at the above address. The exact amount of
the deduction from [Abdulaziz]'s salary, and the time period
for which the deduction shall be made, will be as set forth
in the order of the court of Stafford County.
Saudi Arabian Airlines will undertake to implement the
terms of this letter as long as [Abdulaziz] is working with
Saudi Arabian Airlines. Nevertheless, this letter shall not be
considered as a guarantee of any kind by Saudi Arabian Air-
lines.
(J.A. 19).
Under the case law and legislative history, this court can only find
that the Letter constitutes an implicit waiver of sovereign immunity
under the FSIA if we find that the Letter is strong, unmistakable evi-
dence that Saudi intended to waive its sovereign immunity. See
Transnave, 8 F.3d at 287. Unlike the district court, we do not believe
the Letter meets such a standard. The Letter, by its own terms, is
meant simply to notify Sharon that Abdulaziz had"irrevocably autho-
rized and directed Saudi Arabian Airlines" to deduct child support
payments from his salary in the future. (J.A. 19). The Letter also
states that it "shall not be considered as a guarantee of any kind by
Saudi Arabian Airlines." Id. The district court determined that such
language was enough to waive immunity under FSIA. We disagree.
7
First, the situation here bears no resemblance to any of the three
types of situations to which courts have generally limited findings of
implicit waiver. Saudi's sending the Letter to Sharon is in no way
akin to a foreign state agreeing to arbitration in another country, a for-
eign state agreeing that a contract is governed by the law of a particu-
lar country, or a foreign state filing a responsive pleading in a case
without raising the defense of sovereign immunity.
Second, the Letter is inapplicable to the present garnishment action
at issue, which seeks to recover child support payments that were in
arrears prior to February 1996. Since Saudi sent the Letter to Sharon
in February 1996, Abdulaziz, while not always timely, has met his
current child support obligations. As a consequence, Sharon's gar-
nishment action was brought solely to recover the $16,710 (plus costs
and interest) of child support payments that were unpaid prior to Feb-
ruary 1996 and remain in arrears. There is no evidence in the record
that Saudi was even aware of the amounts in arrears at the time it sent
the Letter to Sharon. In fact, the Letter looks to the future and states
that the "exact amount of the deduction from[Abdulaziz's] salary . . .
will be as set forth in the order of the court of Stafford County." Id.
(emphasis added). The Letter does not address any amounts in arrears,
it simply states that Abdulaziz has authorized Saudi to deduct, from
that date forward, $500 from his salary each month for child support
payments to Sharon. Therefore, the Letter is insufficient to qualify as
an implicit waiver under the FSIA in this garnishment action by
Sharon to recover the amount of child support payments that were and
remain in arrears.3
The district court alternatively held that, because Saudi is an airline
that regularly conducts business in the United States and in Virginia,
it was not entitled to sovereign immunity under the"commercial
activity" exception contained in the FSIA. See 28 U.S.C. § 1605(a)(2).4
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3 We emphasize that our opinion addresses only whether Saudi is sov-
ereignly immune from Sharon's garnishment action seeking to recover
the child support payments in arrears. Under the facts presented, we
express no opinion as to whether Saudi would be sovereignly immune
from a garnishment action seeking to recover current child support obli-
gations.
4 Section 1605(a)(2) states that a foreign state will "not be immune
from the jurisdiction of courts of the United States or States in any case
. . . in which the action is based upon a commercial activity carried on
in the United States by the foreign state . . . ." 28 U.S.C. § 1605(a)(2).
8
However, such a statement by the court is contrary to the Supreme
Court's holding in Saudi Arabia v. Nelson, 507 U.S. 349 (1993). In
Nelson, the Supreme Court wrote the following regarding the com-
mercial activity exception in the FSIA:
Congress manifestly understood there to be a difference
between a suit "based upon" commercial activity and one
"based upon" acts performed "in connection with" such
activity. The only reasonable reading of the former term
calls for something more than a mere connection with, or
relation to, commercial activity.
Id. at 358. The court in Stena Rederi AB stated this same point well
when it wrote that "there must be a connection between the plaintiff's
cause of action and the commercial acts of the foreign sovereign"
before the commercial activity exception applies. 923 F.2d at 386.
The garnishment action brought by Sharon is not"based upon" the
commercial activity of Saudi in the United States. Rather, at best,
Sharon's garnishment action is "related to" the commercial activity of
Saudi in the United States. Under such circumstances, the commercial
activity exception does not apply. See Nelson , 507 U.S. at 358.
Finally, the mere fact that Abdulaziz is an employee of Saudi does not
alter the result. To hold otherwise would eviscerate sovereign immu-
nity under the FSIA.
III.
For the reasons stated herein, we remand this matter to the district
court with instructions to dismiss for lack of subject-matter jurisdic-
tion under the FSIA.
REMANDED WITH INSTRUCTIONS TO DISMISS
9