Johnson v. Aramco Services Co.

United States Court of Appeals Fifth Circuit F I L E D In the May 31, 2005 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________ m 04-20557 Summary Calendar _______________ PETER BERNARD JOHNSON, ON BEHALF OF HIMSELF AND ALL PERSONS SIMILARLY SITUATED, Plaintiff-Appellant, VERSUS ARAMCO SERVICES COMPANY; SAUDI ARABIAN OIL COMPANY, Defendants-Appellees. _________________________ Appeal from the United States District Court for the Southern District of Texas m 4:04-CV-642 _________________________ ON PETITION FOR REHEARING tunity Commission (“EEOC”) in which it states, “ASC, among others, recruits employ- Before DAVIS, SMITH, and DENNIS, ees for positions with the Saudi Arabian Oil Circuit Judges. Company (‘Saudi Aramco’) and infrequently recruits for other entities.” Johnson’s unre- JERRY E. SMITH, Circuit Judge:* futed affidavit asserts that an ASC employee informed him that ASC acts as a recruiter for The petition for rehearing is GRANTED. additional entities including its own subsidiar- The opinion, 120 Fed. Appx. 547 (5th Cir. ies. 2005), is WITHDRAWN, and the following opinion is substituted: According to Johnson, he was later in- formed that he would not be selected for the * * * job, allegedly because of his advanced age. He filed a complaint with the EEOC, was granted Peter Johnson appeals the dismissal, for a right to sue letter, and sued ASC and SAO want of subject matter jurisdiction, of his age alleging, inter alia, violations of the Age discrimination suit. Because Johnson cannot Discrimination in Employment Act (“ADEA”), allege facts sufficient to sustain a cause of ac- 29 U.S.C. § 621 et seq. ASC moved for tion against this defendant, we affirm. dismissal based on a lack of subject matter jurisdiction, pursuant to FED. R. CIV. P. 12- I. (b)(1), or alternatively for summary judgment, Johnson, while fifty-seven years old, at- arguing “the court cannot apply extra-territori- tended a job fair in Houston hosted by Aramco ally the ADEA . . . to a foreign corporation Services Company (“ASC”) and applied who employs U.S. citizens to work abroad.”1 through ASC for a job as a Seismic Field Crew The district court summarily granted the mo- Supervisor working in Saudi Arabia with tion to dismiss “with prejudice, for lack of Saudi Arabian Oil Company (“SAO”). SAO is jurisdiction.” a Saudi Arabian entity with its principal office in Dhahran, Saudi Arabia, and ASC, SAO’s II. wholly-owned subsidiary, is incorporated in We review de novo a dismissal for want of Delaware. ASC states that it provides SAO subject matter jurisdiction. See Ramming v. with a range of services, including assistance United States, 281 F.3d 158, 161 (5th Cir. with recruiting. 2001). ASC apparently recruitsSSalbeit infrequent- Lack of subject matter jurisdiction may be lySSfor entities other than SAO. Support for found [on] any one of [the following bas- this is found in the record in the form of es]: (1) the complaint alone; (2) the com- ASC’s letter to the Equal Employment Oppor- plaint supplemented by undisputed facts * 1 Pursuant to 5TH CIR. R. 47.5, the court has de- That this logic indisputably applies with re- termined that this opinion should not be published spect to SAO, Johnson does not disagree, and he and is not precedent except under the limited cir- consented to the dismissal of his claims against cumstances set forth in 5TH CIR. R. 47.5.4. SAO. 2 evidenced in the record; or (3) the com- Based on the presumption against extra-ter- plaint supplemented by undisputed facts ritorial application, even Johnson concedes plus the court’s resolution of disputed that SAO is not a covered employer under the facts. . . . In examining a Rule 12(b)(1) ADEA. Nevertheless, because ASC is a U.S. motion, the district court is empowered to corporation, the same principle does not nec- consider matters of fact which may be in essarily immunize it from suit. dispute. Ultimately, a motion to dismiss for lack of subject matter jurisdiction should be Johnson asserts that ASC, functioning as an granted only if it appears certain that the employment agency, may be liable for its own plaintiff cannot prove any set of facts in discriminatory practices under 29 U.S.C. support of his claim that would entitle § 623(b). Johnson’s complaint avers that plaintiff to relief. ASC, through its screening and referral pro- cess that classified him according to his age, Id. violated the ADEASSindependently of SAO’s discriminatory practices. III. The ADEA provides, in part, that “[i]t shall ASC correctly notes, however, that SAO is be unlawful for an employment agency to fail not a covered employer under the ADEA. or refuse to refer for employment, or other- Consequently, goes the argument, recruiting wise to discriminate against, any individual organizations such as ASC cannot be consid- because of such individual’s age, or to classify ered an employment agency for purposes of or refer for employment any individual on the the act if the foreign corporation for whom the basis of such individual’s age.” 29 U.S.C. recruiter works is not a covered employer un- § 623(b). Bridling this proposition is the no- der the ADEA.3 tion that no federal statute applies extra-terri- torially unless Congress has expressly indi- Johnson responds by citing 29 C.F.R. cated its intent for such an application. See, § 1625.3, which states that an employment e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. agency that “regularly procures employees for 244, 248 (1991). This canon of statutory con- at least one covered employer [] qualifies un- struction “serves to protect against unintended der section 11(c) of the [ADEA] as an em- clashes between our laws and those of other ployment agency with respect to all of its nations which could result in international discord.” Id. The ADEA does not evince any 2 such intent; to the contrary, the plain language (...continued) of § 623(h)(2) generally prohibits such appli- not apply to foreign nationals working for [U.S.] cations. Age discrimination claims, conse- corporations in a foreign workplace and it does not quently, are not cognizable with respect to for- apply to foreign companies which are not con- trolled by U.S. firms.”). eign corporations who employ American citi- zens to work aborad.2 3 See Brownlee v. Lear Siegler Mgmt. Servs. Corp., 15 F.3d 976, 978 n.3 (10th Cir. 1994); Shrock v. Altru Nurses Registry, 810 F.2d 658, 2 See Denty v. SmithKline Beecham Corp., 109 660-61 (7th Cir. 1987); Goswami v. Aramco F.3d 147, 150 (3d Cir. 1991) (The ADEA “does Servs. Co., No. H-00-0929, slip op. at 12-14 (S.D. (continued...) Tex. Mar. 22, 2001). 3 activities whether or not such activities are for The regulation on which Johnson relies at- employers covered by the act.” (Emphasis tempts to impose liability in the very sort of added.) Consequently, if ASC “regularly” re- manner that § 623(h)(2) prohibits. If we were cruits for any covered employer or employers, to accept Johnson’s position, the general anti- the fact that SAO is not a covered employer age discrimination prohibitions of § 623 would will not immunize it from its conduct with apply even though the employer is admittedly respect to Johnson. foreign and not controlled by an American employer. Because such a conclusion would If we were to apply the regulation, we be contrary to the plain text of § 623(h)(2), § would need to determine precisely what is 623(b)’s limitations on the activities of em- meant by the phrase “regularly procure.” We ployment agencies cannot apply to ASC. need not do so in this case, however, because when read in light of Congress’s unequivocal The EEOC interpretation in question was admonition against extra-territorial application first adopted in 1972 by the Department of of the ADEA,4 the regulation cannot impose Labor and was subsequently adopted by the liability on ASC. Where “Congress has ex- EEOC, after notice and comment, as its own plicitly left a gap for the agency to fill, there is in 1981.5 Section 623(h)(2), limiting the ex- an express delegation of authority to the agen- tra-territorial application of the ADEA, on the cy to elucidate a specific provision of the stat- other hand, was not enacted until 1984. Nei- ute by regulation.” Chevron USA, Inc. v. Nat. ther the Department of Labor nor the EEOC, Res. Def. Council, Inc., 467 U.S. 837, 843 therefore, had the opportunity to consider (1984). Where no such gap exists, however, Congress’s admonition against extraterritorial or where the questioned agency regulation is application of the EEOC when adopting the “manifestly contrary to the statute,” the agency questioned regulation. In this case, the plain regulation will not trump the plain language of language of the statute must be applied irre- the statute. Id. spective of the regulation. In this case, 29 C.F.R. § 1625.3, upon In light of the foregoing, Johnson has failed which Johnson relies, is in obvious tension to allege facts sufficient to sustain an ADEA with the ADEA’s own general prohibition cause of action against ASC. The judgment of against its extra-territorial application. See 29 dismissal is therefore AFFIRMED. U.S.C. § 623(h)(2). As we noted above, ab- sent an express indication of Congressional intent to apply a statute extra-territorially, such an intent will not be inferred. See Arabian Am. Oil Co., 499 U.S. at 248. In the case of the ADEA, this presumption is made con- clusive by § 623(h)(2)’s express prohibition of the application of the ADEA “where the em- ployer is a foreign person not controlled by an American employer.” 5 See 37 Fed. Reg. 13345 (1972), codified at 29 C.F.R. § 860.36(c) (1973); 46 Fed. Reg. 47726 4 See 29 U.S.C. § 623(h)(2). (1981). 4