Ashraf-Hassan v. Embassy of France in the United States, No. 11-805 (D.D.C. Apr. 17, 2014) [click for opinion]

Plaintiff’s wrongful termination claim was previously dismissed for failure to timely file a complaint with the EEOC but her claims of harassment and hostile work environment survived several dispositive motions, including a motion to dismiss. Immediately before trial, the French Embassy again moved to dismiss, this time for lack of subject matter jurisdiction. The basis was the Foreign Sovereign Immunities Act (“FSIA”).

Under the FSIA, district courts have jurisdiction over “any claim . . . with respect to which the foreign state is not entitled to immunity . . . under [the listed sections of the Act.]” 28 U.S.C. § 1330(a). The court described the Embassy’s second motion to dismiss as a “transparent ploy” aimed at avoiding trial. The court refused to allow the Embassy to invoke sovereign immunity both because it impliedly waived such immunity (28 U.S.C. § 1605(a)(1)) and because Plaintiff’s action was based upon the Embassy’s commercial activity in the United States (28 U.S.C. § 1605(a)(2)).

Implied waivers under the FSIA are narrowly construed. However, one instance in which waivers are found is where a contract to which the foreign state is a party designates U.S. law as governing the contract. Plaintiff's contract with the Embassy stated it was governed by “local legislation”—which the court determined was the law of New York, the place where the contract was concluded. Once a sovereign has impliedly waived its immunity through a choice-of-law clause, the waiver cannot be unilaterally withdrawn.

A separate and commonly recognized form of implied waiver arises where the state files a responsive pleading and fails to contest jurisdiction by asserting its sovereign immunity. In its motion to dismiss early in the litigation, the Embassy specifically addressed the issue of sovereign immunity and agreed not to challenge the court’s personal jurisdiction unless the case should happen to “intrude upon its governmental activities,” thereby making it necessary for the Embassy to “protect the confidential character of such activities.” Through this initial concession and its continued participation in the lawsuit (including the filing of an answer and a motion for summary judgment), the Embassy had impliedly waived its right to assert immunity.

The court also held that, even if waiver were not a bar to immunity, the commercial activity exception to the FSIA would be. The commercial activities exception has been deemed to apply to employment relationships that exhibit certain characteristics, namely where an employee contracted to work as a non-civil servant, the job duties were clerical in nature, and the suit was “based upon” the employment relationship. 28 U.S.C. § 1605(a)(2). Plaintiff here was not a civil servant and was in a purely administrative role, uninvolved with governmental decisions, and her Title VII employment discrimination claims were based on the employment relationship. Accordingly, the Embassy could not assert sovereign immunity under the commercial activity exception.

Having concluded (1) the Embassy waived sovereign immunity by contract and by filing a responsive pleading that failed to raise immunity as a defense (and to effectively reserve the right to later do so), and (2) that Plaintiff’s suit was based upon the Embassy’s commercial activity, the court denied the Embassy’s late-stage motion to dismiss.