Rasha Mohammad v. General Consulate of Kuwait La

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RASHA MOHAMMAD, and All Persons No. 20-56255

Similarly Situated,

Plaintiff-Appellee, D.C. No.

2:20-cv-02513-

v. MWF-MAA

GENERAL CONSULATE OF THE STATE

OF KUWAIT IN LOS ANGELES, AKA OPINION

The General Consulate of the State of

Kuwait, AKA The Nation of Kuwait,

AKA The Royal Consulate of the

State of Kuwait, The State of Kuwait,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of California

Michael W. Fitzgerald, District Judge, Presiding

Submitted January 10, 2022 *

Pasadena, California

Filed March 17, 2022

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 MOHAMMAD V. GEN. CONSULATE OF KUWAIT

Before: Johnnie B. Rawlinson and Consuelo M. Callahan,

Circuit Judges, and Frederic Block, ** District Judge.

Opinion by Judge Callahan

SUMMARY ***

Foreign Sovereign Immunities Act

The panel affirmed the district court’s order denying the

motion of the State of Kuwait’s Consulate in Los Angeles to

dismiss an employment discrimination action based on

sovereign immunity under the Foreign Sovereign

Immunities Act.

The panel affirmed the district court’s holding that the

commercial activity exception to the FSIA applied. The

panel reaffirmed the holding of Holden v. Canadian

Consulate, 92 F.3d 918 (9th Cir. 1996), that the

“employment of diplomatic, civil service or military

personnel is governmental,” and clarified that the

employment of other personnel is commercial unless the

foreign state shows that the employee’s duties included

“powers peculiar to sovereigns.” The panel held that the

district court properly exercised its discretion in finding that

plaintiff, who was employed as an administrative assistant

**

The Honorable Frederic Block, United States District Judge for

the Eastern District of New York, sitting by designation.

***

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

MOHAMMAD V. GEN. CONSULATE OF KUWAIT 3

by the Consulate, was not a civil servant and that her duties

did not include “powers peculiar to sovereigns.”

COUNSEL

Nick S. Pujji and Carol Your, Dentons US LLP, Los

Angeles, California, for Defendants-Appellants.

Richard L. Knickerbocker, Knickerbocker Law Firm, Santa

Monica, California, for Plaintiff-Appellee.

OPINION

CALLAHAN, Circuit Judge:

Rasha Mohammad (“Plaintiff”) was employed as an

administrative assistant by the State of Kuwait’s Consulate

in Los Angeles (the “Consulate”). She filed suit alleging that

she had been constructively terminated due to discrimination

based on her religion, gender, and national origin. She also

alleged other violations of California’s employment laws.

The Consulate moved to dismiss the action based inter alia

on sovereign immunity. The district court denied the

motion, finding that it had jurisdiction under the commercial

activity exception to the Foreign Sovereign Immunities Act

(“FSIA”), 28 U.S.C. § 1602 et seq. The Consulate appeals,

arguing that Plaintiff was part of its civil service and that her

duties included “powers peculiar to sovereigns.” See Saudi

Arabia v. Nelson, 507 U.S. 349, 360 (1993) (quoting

Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614

(1992)). We affirm because the Consulate has not shown

that the district court abused its discretion in finding that

Plaintiff was not a civil servant and that her duties as an

4 MOHAMMAD V. GEN. CONSULATE OF KUWAIT

employee who is not a diplomat, civil servant, or military

officer, did not include “powers peculiar to sovereigns.”

I

Plaintiff was a Syrian national living in California as a

legal permanent resident and is now a U.S. citizen. She is

not, and has never been, a Kuwaiti national. In April 2014,

Plaintiff entered into a written employment contract with the

Consulate to work as a secretary. Plaintiff alleges that the

Consulate created a hostile work environment by harassing,

discriminating, and retaliating against her on the basis of her

gender, religion, and Syrian national origin, violated various

wage and hour laws, and breached her employment contract.

She claims that as a result of this treatment she was forced

to resign and was constructively terminated from her

employment, effective September 1, 2017.

Plaintiff initiated this action by filing a complaint in the

Los Angeles Superior Court in September 2018. 1 The

Consulate removed the action to the U.S. District Court for

the Central District of California and then moved to dismiss

the complaint on the ground that the Consulate was entitled

to sovereign immunity under the FSIA. After briefing and

oral argument, the district court denied the motion to dismiss

in part and granted it in part.

1

Plaintiff alleged twenty-three claims, including: (1) religious,

gender, and national origin discrimination claims under California’s Fair

Employment and Housing Act; (2) harassment by employer and failure

to prevent discrimination and harassment; (3) failure to pay required

wages and vacation time; (4) breach of contract and the implied covenant

of good faith and fair dealing; (5) unfair business practices; (6) violations

of the Labor Code; (7) failure to give notice before cancellation of

insurance coverage; and (8) improper disposition of property.

MOHAMMAD V. GEN. CONSULATE OF KUWAIT 5

II

As the district court recognized, the FSIA “provides the

sole basis for obtaining jurisdiction over a foreign state in

the courts of this country.” OBB Personenverkehr AG v.

Sachs, 577 U.S. 27, 30 (2015) (quoting Argentine Republic

v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989)).

Plaintiff asserted that the court had jurisdiction over her case

pursuant to three exceptions to sovereign immunity in the

FSIA: the commercial activity exception, the expropriation

exception, and the tort exception. The district court found

that the commercial activity exception applied and declined

to address the application of the expropriation and tort

exceptions. 2

The FSIA’s commercial activity exception states: “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 action is based upon a commercial activity carried

on in the United States by the foreign state.” 28 U.S.C.

§ 1605(a)(2). Commercial activity:

means either a regular course of commercial

conduct or a particular commercial

transaction or act. The commercial character

of an activity shall be determined by

reference to the nature of the course of

2

Because we affirm the district court’s determination that the

commercial activity exception applies, we too do not address the

application of the expropriation and tort exceptions.

6 MOHAMMAD V. GEN. CONSULATE OF KUWAIT

conduct or particular transaction or act, rather

than by reference to its purpose.

28 U.S.C. § 1603(d).

Citing OBB, 577 U.S. at 33, 35, the district court held

that it must first identify “the particular conduct on which

the plaintiff’s action is based”: the “gravamen” of the action.

It determined that the “gravamen” of Plaintiff’s action was

“the Consulate’s treatment of [Plaintiff] as an employee

during the course of her employment,” as all of her claims

were based upon “the Consulate’s alleged failure to abide by

laws regulating how employers must treat and compensate

their employees.”

The district court found our opinion in Holden v.

Canadian Consulate, 92 F.3d 918 (9th Cir. 1996),

instructive. Holden had been a “commercial officer” within

the Canadian Consulate. Id. at 920. She sued the Canadian

Consulate after her employment was terminated and she was

replaced by a younger, less experienced man. Id. at 921. We

adopted “the standard suggested by the legislative history,

that is, employment of diplomatic, civil service or military

personnel is governmental and the employment of other

personnel is commercial.” Id. We looked past Holden’s job

title and determined that she was not a civil servant because

she “did not compete for any examination prior to being

hired, was not entitled to tenure, was not provided the same

benefits as foreign service officers and did not receive any

civil service protections from the Canadian government.”

Id.

Applying Holden, the district court found that the nature

of Plaintiff’s work for the Consulate “was that of clerical

staff, not civil servants or diplomatic personnel.” It found

that she was hired as a secretary whose job duties “included

MOHAMMAD V. GEN. CONSULATE OF KUWAIT 7

general office clerical work like typing letters and reports

dictated, approved, and signed by others, organizing files,

archiving records, filing documents, answering the phones,

and maintaining files.” The court commented that Plaintiff

also “helped assist others with translating things into Arabic

or assisting Diplomats with writing and understanding the

English language, but was not involved in policy-making or

policy deliberations.” In addition, Plaintiff “was not the

personal secretary of any Diplomat and all confidential

material and information was locked in a room which she

never entered.” The district court concluded that Plaintiff

had “met her burden of production to show that the

Consulate employed her to perform routine secretarial and

administrative tasks, and thus, the commercial activity

exception applies.”

The district court held that the burden then shifted to the

Consulate “to show, by a preponderance of the evidence, that

[Plaintiff] performed uniquely governmental tasks.” The

district court reviewed the declaration and other materials

submitted by the Secretary for the Consulate as well as the

materials submitted by Plaintiff and concluded that the

Consulate had failed to show that its employment of Plaintiff

as a secretary was not commercial in nature. The district

court observed that the Consulate had conflated the purpose

of Plaintiff’s work with the nature of her work and noted that

the Secretary’s declaration did not claim that Plaintiff “had

discretionary job duties, was substantively involved in the

making of policy or other governmental decisions, engaged

in lobbying activity or legislative work, or had the authority

to discuss substantive policy matters on behalf of the

Kuwaiti government.”

The district court denied the Consulate’s request for

further discovery. Quoting Holden, 92 F.3d at 922, the

8 MOHAMMAD V. GEN. CONSULATE OF KUWAIT

district court commented that even if the court “were to

resolve the factual disputes in [its] favor, the Consulate

would still fall short of proving by a preponderance of the

evidence that the nature of Plaintiff’s work was not

‘regularly done by private persons.’”

The Consulate filed a timely notice of appeal.

III

“A district court’s denial of immunity to a foreign

sovereign is an appealable order under the collateral order

doctrine.” Doe v. Holy See, 557 F.3d 1066, 1074 (9th Cir.

2009) (per curiam); Compania Mexicana de Aviacion, S.A.

v. U.S. Dist. Court, 859 F.2d 1354, 1356 (9th Cir. 1988) (per

curiam) (same).

The existence of subject matter jurisdiction under the

FSIA is a question of law, which is reviewed de novo.

Holden, 92 F.3d at 920; Park v. Shin, 313 F.3d 1138, 1141

(9th Cir. 2002). However, credibility findings are generally

reviewed for clear error, see Papakosmos v. Papakosmos,

483 F.3d 617, 623 (9th Cir. 2007), and evidentiary rulings

are reviewed for an abuse of discretion, see Spencer v.

Peters, 857 F.3d 789, 798 (9th Cir. 2017). We have further

noted that on review of “a district court’s factual findings,

the abuse-of-discretion and clearly erroneous standards are

indistinguishable.” Oakland Bulk & Oversized Terminal,

LLC v. City of Oakland, 960 F.3d 603, 612 (9th Cir. 2020)

(quoting United States v. Hinkson, 585 F.3d 1247, 1259 (9th

Cir. 2009) (en banc)). A district court’s factual finding will

be affirmed “unless that finding is illogical, implausible, or

without support in inferences that may be drawn from the

record.” Hinkson, 585 F.3d at 1263.

MOHAMMAD V. GEN. CONSULATE OF KUWAIT 9

IV

A. Defining the commercial activity exception

The Supreme Court provided the contours of the

commercial activity exception in Weltover, 504 U.S. 607,

(holding that Argentina’s issuance of bonds was a

commercial activity), and Saudi Arabia, 507 U.S. 349

(holding that the Saudi government’s wrongful arrest,

imprisonment, and torture of plaintiff were sovereign not

commercial activities). In Saudi Arabia, the Supreme Court

read Weltover as holding:

that a state engages in commercial activity

under the restrictive theory where it exercises

“‘only those powers that can also be

exercised by private citizens,’” as distinct

from those “‘powers peculiar to sovereigns.’”

Put differently, a foreign state engages in

commercial activity . . . only where it acts “in

the manner of a private player within” the

market. 504 U.S., at 614; see Restatement

(Third) of the Foreign Relations Law of the

United States § 451 (1987) (“Under

international law, a state or state

instrumentality is immune from the

jurisdiction of the courts of another state,

except with respect to claims arising out of

activities of the kind that may be carried on

by private persons”).

507 U.S. at 360 (quoting Weltover, 504 U.S. at 614).

Three years after the Supreme Court’s opinion in Saudi

Arabia, we decided Holden. We recognized that the FSIA

was the sole basis for obtaining jurisdiction over a foreign

10 MOHAMMAD V. GEN. CONSULATE OF KUWAIT

state and that under the commercial activity exception, a

country is not immune “if the plaintiff’s cause of action is

based upon a commercial activity carried on by the foreign

state.” Holden, 92 F.3d at 920.

We noted that the “the FSIA directs courts to examine

the nature of the act or course of conduct, rather than the

purpose.” Id. We adopted the definition of commercial

activity set forth in Saudi Arabia, 507 U.S. at 360, and

added:

it is not enough for the foreign state merely to

have engaged in a commercial activity.

Rather the statutory language requires that

the plaintiff’s cause of action be “based

upon” the commercial activity in question. A

plaintiff’s claim is “based upon” those

activities that are elements of the claim that

would entitle the plaintiff to relief.

Holden, 92 F.3d at 920 (citations omitted).

Finding a lack of clear definition of “commercial

activity” in the FSIA, we turned to the FSIA’s legislative

history. Based on a House of Representative’s Report, we

first noted that the employment of diplomatic, civil service,

and military personnel is not commercial in nature. Id. at

921. Next, we quoted a section stating that “[a]ctivities such

as a government’s . . . employment or engagement of

laborers, clerical staff or public relations or marketing agents

. . . would be among those included within the definition [of

commercial activity].” Id. (second alteration and omissions

in original). We then adopted a standard suggested by the

legislative history:

MOHAMMAD V. GEN. CONSULATE OF KUWAIT 11

employment of diplomatic, civil service or

military personnel is governmental and the

employment of other personnel is

commercial. Because private parties cannot

hire diplomatic, civil service or military

personnel, such hiring is necessarily

governmental.

Id. 3

We found that although Holden “was a full-time

employee of the Canadian government who was closely

monitored and supervised,” she was not a diplomat, “did not

engage in any lobbying activity or legislative work for

Canada, and . . . could not speak for the government.” Id. at

921, 922. Although Canada argued that “the purpose of her

work was to promote trade solely for trade’s sake, and not

for commercial gain, [we held that] we examine the nature

of the act, and not the purpose behind it.” Id. at 922. We

concluded that because the “nature of Holden’s work,

promotion of products, is regularly done by private persons,

. . . her employment was a commercial activity.” Id.

Although, as noted by the Consulate, Holden has been

interpreted by another circuit as creating a rigid rule, see El-

Hadad v. United Arab Emirates, 496 F.3d 658, 664 n.2,

(D.C. Cir. 2007) (opining that the Ninth Circuit “treats the

civil servant question as effectively superseding the

commercial/government distinction”), we read Holden as

establishing a more general standard. For example, in Park,

We cited approvingly the Seventh Circuit’s assertion in Segni v.

3

Commercial Office of Spain, 835 F.2d 160 (7th Cir. 1987), that the mere

act of employing a person was not per se a commercial activity. Holden,

92 F.3d at 921.

12 MOHAMMAD V. GEN. CONSULATE OF KUWAIT

we held that “an activity is commercial unless it is one that

only a sovereign state could perform.” 313 F.3d at 1145.

We reaffirm our ruling in Holden that the “employment

of diplomatic, civil service or military personnel is

governmental,” 92 F.3d at 921, and clarify that the

employment of other personnel is commercial unless the

foreign state shows that the employee’s duties included

“powers peculiar to sovereigns.” Saudi Arabia, 507 U.S. at

360 (quoting Weltover, 504 U.S. at 614). 4

B. Application of the commercial activity exception

Whether Plaintiff was a “civil servant” or had duties that

included “powers peculiar to sovereigns” appears to be a

4

Other circuits substantially agree with this standard. See El-

Hadad, 496 F.3d at 667 (holding that El–Hadad was not a civil servant

and moving 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 sovereign.’”) (quoting Saudi

Arabia, 507 U.S. at 360); Kato v. Ishihara, 360 F.3d 106, 111 (2nd Cir.

2004) (holding that “to identify ‘commercial activity’ for purposes of the

‘commercial activity’ exception to immunity under the FSIA, we must

ask whether ‘the particular actions that the foreign state performs . . . are

the type of actions by which a private party engages in trade and traffic

or commerce’”) (omission in original) (quoting Weltover, 504 U.S. at

614); see also Merlini v. Canada, 926 F.3d 21, 23 (1st Cir. 2019)

(upholding jurisdiction under the FSIA’s commercial exception over a

claim by a clerical worker in the Canadian consulate in Boston who was

injured when she tripped over a cord).

We note that in an unpublished disposition, Eringer v. Principality

of Monaco, 533 F. App’x 703 (9th Cir. 2013), a panel of our court

similarly rejected the argument that only diplomatic, civil service, and

military personnel were governmental and all other personnel were

commercial, and instead, interpreted the lists of laborers, clerical staff,

public relations agents, and marketing agents in Holden and Park as

exemplary rather than categorical. Id. at 704.

MOHAMMAD V. GEN. CONSULATE OF KUWAIT 13

factual issue, at least insofar as the district court had to

evaluate conflicting evidence and assertions. See U.S. Bank

Nat. Ass’n ex rel. CWCapital Asset Mgmt. LLC v. Village at

Lakeridge, LLC, 138 S. Ct. 960, 967 (2018) (noting that

some mixed questions “immerse courts in case-specific

factual issues—compelling them to marshal and weigh

evidence [and] make credibility judgments”).

We consider whether an employee’s activity is

commercial in character by examining its nature, rather than

the purpose of the activity. 28 U.S.C. § 1603(d); Weltover,

504 U.S. at 614 (quoting Black’s Law Dictionary 270 (6th

ed. 1990)) (“[T]he issue is whether the particular actions that

the foreign state performs (whatever the motive behind

them) are the type of actions by which a private party

engages in ‘trade and traffic or commerce’”); Holden, 92

F.3d at 922 (“[W]e examine the nature of the act, and not the

purpose behind it.”).

The district court reasonably rejected the Consulate’s

assertion that Plaintiff was a “civil servant.” The Secretary’s

declaration claimed that Plaintiff was employed as “a

Mission Secretary for the Consulate,” but her employment

application listed her job title as “administrative assistant.”

The Secretary’s declaration asserted that Plaintiff was

“provided civil service benefits similar to those received by

Consulate diplomats such as access to health insurance.”

However, the district court determined that documents

submitted by Plaintiff revealed that all Consulate employees

receive health insurance except diplomatic personnel who do

not have health insurance and “instead forward medical

invoices directly to the State for payment.” The Consulate

has failed to show that the district court’s determination that

Plaintiff was not a “civil servant” is “illogical, implausible,

14 MOHAMMAD V. GEN. CONSULATE OF KUWAIT

or without support in inferences that may be drawn from the

record.” Hinkson, 585 F.3d at 1263.

The Consulate contends that the district court should not

have applied the factors set forth in Holden as relevant to

determining whether Plaintiff was a civil servant but should

instead have considered Kuwait’s own definition of civil

service. However, the Consulate has not supported its

assertion with any evidence that Kuwait has a unique or

different definition of civil service.

The Consulate further asserts that even if Plaintiff was

not a “civil servant,” her duties included “powers peculiar to

sovereigns.” It asserts that she: (1) was a highly qualified

secretary directly responsible for coordinating, translating,

and presenting high-level information that was both

confidential and non-confidential; (2) attended some of the

highest level meetings, often worked directly with the head

of the mission, and communicated with certain authorities

on behalf of the mission; and (3) was also involved in high

level communications that involved the Kuwaiti government

and typed and prepared reports for local authorities and for

transmission to the Kuwaiti government through the

diplomats. The Consulate cites Plaintiff’s allegation that she

was forced to participate in meetings or conversations in

which Consulate officials were conspiring to defraud or

deceive U.S. governmental agencies (which the Consulate

denies) as plainly contradicting her assertion that she was

never involved in any confidential communications. The

Consulate further argues that the district court erred in not

accepting that Plaintiff was an integral part of the mission’s

communication channel based on its lack of specificity

because this put the Consulate in an impossible Catch-22

situation “where it would have to reveal sensitive, foreign

government information that is traditionally protected by

MOHAMMAD V. GEN. CONSULATE OF KUWAIT 15

immunity in order to sufficiently prove its entitlement to

immunity.”

The Consulate appears to conflate the nature and purpose

of Plaintiff’s duties and to confuse her prescribed duties with

how the Consulate chose to utilize her skills. It seems to

argue that because Plaintiff was allowed to participate in

certain confidential meetings and was asked to translate

some confidential materials, she is similar to a diplomat or

civil servant and the commercial activity exception does not

apply. But this misconstrues the test.

A person hired for a clerical position does not become a

diplomat or civil servant because the sovereign choses to

expose that person to confidential matters. Rather the test

remains whether the employee’s claims arise “out of

activities of the kind that may be carried on by private

persons,” Saudi Arabia, 507 U.S. at 360 (quoting

Restatement (Third) of the Foreign Relations Law of the

United States § 451 (1987)), or that are “regularly done by

private persons,” Holden, 92 F.3d at 922. Here, Plaintiff’s

secretarial and translating duties are the type of activities that

are usually performed by clerical staff. On this record, the

Consulate has failed to meet its burden of showing that the

district court erred in finding that Plaintiff’s claims fall

within the commercial activity exception.

V

Finally, the Consulate asserts that we should remand for

further discovery and evidentiary proceedings, in part

because Plaintiff filed two ex parte applications after the

filing of her reply brief. “We review the district court’s

decision to limit the scope of jurisdictional discovery for

abuse of discretion.” AMA Multimedia, LLC v. Wanat, 970

F.3d 1201, 1207 (9th Cir. 2020). The Consulate has not

16 MOHAMMAD V. GEN. CONSULATE OF KUWAIT

shown that the limitation on discovery was an abuse of

discretion. It has not shown that it was precluded from

presenting relevant evidence, has not suggested what

evidence it would present on remand, and has not indicated

how that evidence would alter the jurisdictional ruling. We

therefore deny the Consulate’s request for a remand.

VI

The FSIA provides that a foreign state is not granted

immunity where an action “is based upon a commercial

activity carried on in the United States by the foreign state.”

28 U.S.C. § 1605(a)(2). The Supreme Court has described

commercial activity as “those powers that can also be

exercised by private citizens, as distinct from those powers

peculiar to sovereigns.” Saudi Arabia, 507 U.S. at 360

(cleaned up). We reaffirm our holding in Holden that the

employment of diplomatic, civil service, and military

personnel is entitled to immunity. Holden, 92 F.3d 921. We

clarify that the employment of other personnel can qualify

for immunity if the duties of those employees include

powers “peculiar to sovereigns.” Saudi Arabia, 507 U.S. at

360 (quoting Weltover, 504 U.S. at 614). Here, the district

court determined that Plaintiff’s clerical duties with the

Consulate did not include such powers. On the existing

record, the Consulate has not shown that this determination

“is illogical, implausible, or without support in inferences

that may be drawn from the record.” Hinkson, 585 F.3d at

1263. Accordingly, the district court’s denial of the

Consulate’s motion to dismiss for lack of jurisdiction is

AFFIRMED.