Petition for Writ of Certiorari — Srour v. United Arab Emirates

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FEB 1? 1967

No. , Pk: GLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

AHMED SROUR,

Petitioner,

THE UNITED ARAB EMIRATES,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

DAViD SETH MICHAELS

Route 203 at Beale Road

Spencertown, New York 12165

(518) 392-9150

Attorney for Petitioner

Question Presented

Whether it was error to dismiss

the complaint of a third country national

alleging a breach of an employment

contract by a foreign state, under the

Foreign Sovereign Immunities Act, 18

U.S.C. Section 1602, et seg., on the

ground that the employee had failed to

establish that his action was based upon

"commercial activity" by the foreign

State, when it was the foreign state's

obligation to produce evidence of

immunity and no such evidence was

produced.

Parties

Ahmed Srour and The United Arab

Emirates.

Table of Contents

ED EE re |

Pes éaseabh Beeesecece ravaesaeeeeek

Table of a a

Table of Cases and

Other CS SE

GCORMEONS BOLOWs cc ccccccccccsccceccces&

Jurisdictional Statement.............7

Statutes Involved... ccccccccccccccccel

Statement Of the Case... cccccccccceee ed

Reasons for Granting the Writ

I. IT WAS ERROR TO DISMISS THE

COMPLAINT OF A THIRD COUNTRY

NATIONAL ALLEGING A BREACH OF

AN EMPLOYMENT CONTRACT BY A

FOREIGN STATE, UNDER THE FOREIGN

SOVEREIGN IMMUNITIES ACT, 18

U.S.C. SECTION 1602, ET SEQ.,

ON THE GROUND THAT THE EMPLOYEE

HAD FAILED TO ESTABLISH THAT HIS

ACTION WAS BASED UPON "COMMERCIAL

ACTIVITY" BY THE FOREIGN STATE,

WHEN IT WAS THE FOREIGN STATE'S

OBLIGATION TO PRODUCE EVIDENCE OF

IMMUNITY AND NO SUCH EVIDENCE

WAS PRODUCED... cc ccccccccccccceee 20

I A rs |

APPENDIX

A. Order of the United States

Court of Appeals for the

Second Circuit affirming the

judgment of the district court

in Ahmed Srour v. The United

Arak Emirates, No. 86-7662.......la

B. Memorandum and Order of the

United States District Court

granting defendant's motion

and dismissing the complaint

in Ahmed Srour v. The United

Arab Emirates, 86 Civ.

Ce Pe errr Tre ere |

C. Vectlted Compiaint..sscccescseseesD®

D. Motion and Affirmation of Omar

Ba DO sc dkdnednevesecenetae nen

E. Affirmation of Omar Z.

PEP PEC eT TTT TET TE TET.

F. Affirmation and Memorandum

in Response of Michele

oo 8 re Pe a &

G. Reply Affirmation of Omar 2Z.

GOGMOGNM ais 60 6 6 66s eed etnekces cc ve

Table of Cases

Alberti _v. Empresa Nicaraguense

De La Carne, 705 F.2d 150 (7th

Cit. 8 FR en ee 2 |

Arango v. Guzman Travel Advisors

Corp., 621 F.2d 1371

(5th Cit. ee ee: T |

Behring International, Inc. v.

Imperial Iranian Air Force,

475 F.Supp 396 (D.N.J. 1979)......21

Kamen v. A.T.&T. Communications,

Inc., 791 F.2d 1006 (2d

eg, FO Ly PE SR ere Srey Se eS

Matter of Sedco, Inc., 543 F.Supp

561 (S.D.Tex. 1982)... cece eeeveces 21

Texas Trading v. Federal Republic of

Nigeria, 647 F.2d 300

(2d Cir. 1981)..... etecensesnes 23,27

Tigchon v. Island of Jamaica, 591

F.Supp 765 (W.D.Mich. 1984).......21

Transamerican S.S. Corp. v. Somali

Democratic Republic, 767 F.2d

998 (D.C. Ci£. LOGS) ccocceoccces eeeee 21

Van Dardel v. Union of Soviet

Socialist Republics, 623 F.Supp

246 (D.D.C- Sarr rrerre ry ©

Vencendora Ocenica Navigacion v.

Compagnie Nation, 730 F.2d 195

(5th Cite i 5) errr rr y rer rery

Verlinden B.V. v. Central Bank of

Nigeria, 461 U.S. 480 (1983)....22

Williams v. Kuhlman, 722 F.2d

1048 (24 Circ. 1983) -ccccccccsccees 28

Other Authorities

H.Rep. No. 94-1487, 94th Cong.2d

Sess. (1976), 1976 U.S.Code Cong.

& Ad.News 6604....ccccccccces- passim

Foreign Sovereign Immunities Act,

28 U.S.C. Sections 1602, et

SEGweeee soasesbdaeces pecesees passim

TO THE HONORABLE, THE CHIEF JUSTICE OF

THE UNITED STATES AND THE ASSOCIATE

JUSTICES OF THE UNITED STATES SUPREME

COURT.

Petitioner Ahmed Srour

respectfully prays that a writ of

certiorari issue to review the judgment

of the United States Court of Appeals for

the Second Circuit which affirmed a

decision of the United States District

Court for the Southern District of New

York, dismissing petitioner's complaint

under the Foreign Sovereign Immunities

Act, 28 U.S.C. Section 1602, et seq.

Opinions Below

The summary judgment of the

United States Court of Appeals for the

Second Circuit was rendered on November

21, 1986. A copy of the judgment is

annexed at Appendix 1. The memorandum

Opinion of the United States District

Court for the Southern District of New

York was rendered on July 29, 1986. A

copy of the memorandum is annexed at

Appendix 4. Neither opinion has been

reported.

Jurisdictional Statement

The judgment of the Court of

Appeals was entered on Novmember 21,

1986. A copy of the judgment is annexed

at Appendix l.

The Court's jurisdiction is

invoked pursuant to 28 U.S.C. Section

1254(1).

Statutes Involved

Title 28, United States Code, Section

1603. Definitions

For the purposes of this chapter --...

(d) A “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 conductor

particular transaction or act, rather

than by reference to its purpose.

Title 28, United States Code, Section

1604. Immunity of a foreign state from

jurisdiction

Subject to existing international

agreements to which the United States is

a party at the time of enactment of this

Act (enacted Oct. 21, 1976) a foreign

State shall be immune from the

jurisdiction of the courts of the United

States and of all the States except a

provided in sections 1605 to 1607 of this

chapter.

Title 28, United States Code, Section

1605. General exceptions to the

jurisdictional immunity of a foreign

state

(a) A foreign state shall not be immune

from the jurisdiction of the United

States or of the States in any case-- ...

(2) in which the action is based upon

a commercial activity carried on in the

United States by the foreign state; or

upon an act performed in the United

States in connection with a commercial

activity of the foreign state elsewhere;

Or upon an act outside the territory of

the United States in connection with a

commercial activity of the foreign state

elsewhere and that act causes a direct

effect in the United States; ...

Statement of the Case

Petitioner is a legal resident

of the United States of Lebanese

nationality (A.25) who was employed by

the United Arab Emirates (hereinafter

"Respondent") at its Mission in New York

City for four and one half years until

his employment was terminated in July,

1985. Petitioner was employed, pursuant

to a written contract of employment with

respondent, dated January 1, 1984, as a

"researcher" (A.25). This contract

specifically incorporated the provisions

of respondent's “Local Employees System"

(A.26), which applied solely to

administrative employees (translators and

clerks), general service employees

(drivers, guards, cooks), and additional

administrative employees like petitioner,

who were appointed by special contracts.

The "Local Employees System" provided

that no position could be transferred

without the prior approval of the

Minister of Foreign Affairs (A.52-54).

On May 29, 1985, without notice

Acts! neal

and without approval of the Minister of

Foreign Affairs (A.13), petitioner was

transferred from his "researcher"

position to another position, for which

petitioner had no training, as assistant

to the head of the Economic and Social

Department of the Mission (A.14).

Thereafter, petitioner was terminated on

July 11, 1985 (A.14, 55).

On April 25, 1986, petitioner

filed the instant action against

respondent. Alleging jurisdiction of the

United States District Court for the

Southern District of New York under 28

U.S.C. Section 1330, petitioner,

describing his employment as that of

"researcher" and “political adviser,”

Claimed, inter alia, that respondent had

breached the contract of employment. The

complaint, however, did not provide a

description of the specific services

petitioner provided pursuant to the

——

contract. Rather, addressing the Foreign

Sovereign Immunities Act (hereinafter,

"FSIA"), 28 U.S.C. Sections 1602, et

seg., petitioner's complaint simply

alleged that the lawsuit was "based upon

a commercial activity performed in the

United States in New York City” (A.9).

Thereafter, the summons and complaint

were served upon the Foreign Minister of

respondent in Abu Dabi by the Clerk of

the United States District Court.

On June 25, 1986, respondent

filed in lieu of an answer a motion for

dismissal of the complaint based upon

FSIA and the Diplomatic Immunity Act.

The motion, which did not reveal the

portion of the Federal Rules of Civil

Procedure under which it was made, was

accompanied solely by an attorney's

affirmation and a memorandum of law. No

affidavit or other document purporting to

be made on personal knowledge was

submitted in support of the motion.

Instead, the affirmation claimed among

Other things that the action was "barred"

by FSIA because it was "not within the

exceptions listed in the Act regarding

commercial activities” (A.32). With

regard to this claim, the affirmation

stated only the following:

A U.N. Mission is specifically

and definetely (sic.)

considered by the courts to be

a diplomatic entity exempted

from suit in U.S.A. The State

of U.A.E. by conducting

diplomatic activities by a

Mission to U.N. is not engaged

in commercial activities. Thus

this action under FSIA is not

maintainable and should be

dismissed. (A.32).

Subsequently, on July 9, 1986, respondent

filed an additional affirmation which

Claimed that the United States Department

of State would "communicate directly with

the Court" and suggest dismissal on

grounds including the “interest of

diplomatic relations" (A.35). The record

iii its as

of this case, however, discloses no such

communication to the Court. Instead, a

letter from the Department of State was

sent to the Clerk of the Court

incorrectly claiming that service of

process was not properly conducted.

In response to respondent's

arguments, petitioner's attorney filed an

"Affirmation and Memorandum in Response,"

which, advancing solely legal arguments

and making no factual presentation,

argued that the commercial activity

underlying the case was the hiring,

employing, and wrongful firing of

petitioner (A.38).

Finally, respondent filed a

reply affirmation (A.56) which purported

to argue from various documents that

"plaintiff is a member of U.A.E. Mission

to U.N." (A.59) and that his was "an

action by a diplomat against his Head of

Mission to U.N. on a dispute relating to

his assignment" (A.61). Such an action,

it was claimed, could not be maintained

because of diplomatic and sovereign

immunity and lack of jurisdiction (A.6l).

Annexed to the motion were a number of

documents which included petitioner's

name as a person attending or

participating in various United Nations

activities, but no document from a person

with personal knowledge was provided to

the District Court which described the

nature of the services performed pursuant

to petitioner's contract, and,

Significantly, none of the documents

purported to show that petitioner was

accredited as a diplomat.

On July 29, 1986, Judge Knapp

granted the motion to dismiss. Noting

that petitioner had alleged in his

complaint that he had been employed as a

"researcher" and "political adviser,"

Judge Knapp concluded that petitioner's

argument about the scope of “commercial

activity” under 28 U.S.C. Section 1603(d)

was “overly broad" (A.6). Although he

had before him absolutely nothing which

described on the basis of first hand

knowledge petitioner's employment and the

services for which he had been hired,

Judge Knapp, in essence, determined that

no material issue of fact existed about

petitioner's employment, and he granted

Summary judgment for respondent. The

Court wrote:

Plaintiff's argument appears to

be an overly broad construction

of the Court of Appeals'

formulation in Texas Trading v.

Federal Republic of Nigeria (2d

Cir. 1981) 647 F.2d 300 where

it stated, "if the activity is

one in which a private person

could engage, it is not

entitled to immunity." The

"activity”™ here in question is

more than just employment per

se. It encompasses the

specific type of employment in

which plaintiff was engaged.

See Arango v. Guzman Travel

Advisors Corp. (5th Cir. 1980)

621 F.2d 1371, 1379 ("The focus

of the exception to immunity

recognized in 1605(a)(2)... is

on whether the particular

conduct giving rise to the

Claim in question actually

constitutes or is in connection

with commercial activity.")

It is certainly possible for a

foreign state to engage in

employment contracts in this

country which are both

commercial and non-commercial

in nature. Cf. Truck v. Pan

American Health Organization

(D.C.Cir. 1981) 668 F.2d 547

(claim arising from

international health

Organization's supervision of

its civil service personnel not

commercial in nature.). We

think it obvious that

employment as a military

attache at a diplomatic Mission

would not be considered

commercial, while employment as

a stockbroker to invest for

profit the funds of a foreign

state in the New York Stock

Exchange would be commercial.

Likewise, plaintiff's work as a

researcher and political

adviser at defendant's Mission

is not a commercial activity,

but an essentially political

form of employment peculiar to

governments and therefore

entitled to immunity. (A.7-8;

emphasis added).

Accordingly, purporting to determine the

"essence" of petitioner's employment

although that had never been described in

papers before the District Court, Judge

Knapp dismissed the complaint.

On appeal to the United States

Court of Appeals for the Second Circuit,

petitioner argued both that Judge Knapp

had determined the "facts”™ of the case

without resort to an appropriate inquiry

about petitioner's employment and that

nothing had been presented by respondent

to demonstrate that FSIA barred

petitioner's suit. Accordingly,

petitioner requested a remand for an

appropriate factual development of the

dismissal motion.

On November 21, 1986, a panel

of the United States Court of Appeals for

the Second Circuit (Lumbard, Van

Graafeiland, and Pierce, C.JJ.) affirmed

in a summary order. The Court of Appeals

did not discuss the lack of factual

submissions to support summary judgment

and upheld Judge Knapp's views both that

it was petitioner's obligation to

establish that the case involved

commercial activity and that the record

Supported a determination that

petitioner's employment was not

"commercial":

Appellant alleges that this

case falls within the

commercial activity exception

and that the district court

erroneously focused on the

activities of the plaintiff

rather than considering whether

the activities of the sovereign

constituted commercial

activities. We find this

argument to be without merit.

Judge Knapp clearly stated in

his opinion that "the sole

exception with which we must

concern ourselves on this

motion is whether defendant's

act in employing plaintiff was

‘a commercial activity.'"

Moreover, while appellant

characterizes appellee's acts

as merely the hiring and firing

of an employee, we note that

appellant was employed by the

UAE Mission to the United

Nations to handle political

advisory and research

functions. Thus, the evident

political nature of the

employment mandates a finding

that appellant's activity was

not within the "commercial

activity" exception to

‘

sovereign immunity.

We have considered each of

appellant's other claims and

find them to be without merit.

(A.2-3; Emphasis added.)

Reasons for Granting the Writ

I. IT WAS ERROR TO DISMISS THE

COMPLAINT OF A THIRD COUNTRY

NATIONAL ALLEGING A BREACH OF

AN EMPLOYMENT CONTRACT BY A

FOREIGN STATE, UNDER THE FOREIGN

SOVEREIGN IMMUNITIES ACT, 18

U.S.C. SECTION 1602, ET SEQ.,

ON THE GROUND THA? THE EMPLOYEE

HAD FAILED TO ESTABLISH THAT

HIS ACTION WAS BASED UPON

"COMMERCIAL ACTIVITY" BY THE

FOREIGN STATE, WHEN IT WAS THE

FOREIGN STATE'S OBLIGATION TO

PRODUCE EVIDENCE OF IMMUNITY

AND NO SUCH EVIDENCE WAS PRODUCED.

Because the decision of the

United States Court of Appeals for the

Second Circuit is in direct conflict with

decisions of other Courts of Appeals and

directly contravenes FSIA, certiorari

should be granted. The decision of the

Second Circuit directly conflicts with

decisions in other circuits by

incorrectly placing the burden of

demonstrating lack of immunity under FSIA

on petitioner. Other Courts of Appeals

have consistently held that the burden of

demonstrating immunity under FSIA is on

the foreign nation claiming it. Arango

v. Guzman Travel Advisors Corp., 621 F.2d

1371, 1378 (5th Cir. 1980), Transamerican

S.S. Corp. v. Somali Democratic Republic,

767 F.2d 998, 1002 (D.C.Cir. 1985),

Vencendora Ocenica Navigacion v.

Compagnie Nation, 730 F.2d 195, 199 (Sth

Cir. 1984), Alberti v. Empresa

Nicaraguense De La Carne, 705 F.2d 150,

253 (7th Cir. 1983), Tigchon v. Island of

Jamaica, 591 F.Supp 765, 766 (W.D.Mich.

1984), Van Dardel v. Union of Soviet

Socialist Republics, 623 F.Supp 246, 251

(D.D.C. 1985), Behring International,

Inc. v. Imperial Iranian Air Force, 475

F.Supp 396, 405 n.9 (D.N.J. 1979), Matter

of Sedco, Inc., 543 F.Supp 561, 564

(S.D.Tex. 1982). Accord, H.Rep. No.

94-1487, 94th Cong.2d Sess. (1976), p.

17, reprinted in 1976 U.S.Code Cong.&

Ad.News, 6604, 6616 (hereinafter

"H.Rep") ("(S) ince sovereign immunity is

an affirmative defense which must be

specially pleaded, the burden will remain

on the foreign state to produce evidence

in support of its claim of immunity.").

In its ruling, placing the burden of

proof on petitioner, the Second Circuit's

decision repudiated the very purpose for

which FSIA was enacted (see 28 U.S.C.

Section 1602, limiting immunity to

non-commercial activities) and imposed a

blanket sovereign immunity which has not

been the law since 1952 (see H.Rep,

6613).

The FSIA, 28 U.S.C. Section

1602, et seq., adopts a restrictive view

of foreign sovereign immunity and grants

immunity for “governmental” acts of a

foreign state. The statute, however,

denies immunity for acts of a "private"

nature. It is this view of immunity that

translates into the “commercial activity”

exceptions in FSIA. See, Verlinden B.V.

v. Central Bank of Nigeria, 461 U.S. 480,

488-489 (1983); 28 U.S.C. Section 1602

("(S)tates are not immune from the

jurisdiction of foreign courts insofar as

their commercial activities are

concerned..."). Title 28, U.S.C. 1603(d)

defines “commercial acitivity” as “either

a regular course of commercial conduct or

a particular commercial transaction or

act," and states:

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.

While no provision of the act defines

"commercial" (see, Texas Trading v.

Federal Republic of Nigeria, 647 F.2d

300, 308 (2d Cir. 1981)), the legislative

history determines the appropriate result

in the instant case when it states:

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.

The courts have a great deal of

latitude in determining what is

a "commercial activity” for

purposes of this bill. It has

seemed unwise to attempt an

excessively precise definition

of this term, even if that were

practicable. Activities such

as a foreign government's sale

of a service or a product, its

leasing of property, its

borrowing of money, its

employment or engagement of

laborers, clerical staff or

public relations or marketing

agents, or its investment in a

security of an American

corporation, would be among

those included within the

definition. H.Rep, 6615

(Emphasis added.)

Clearly, then, the question in the

instant case for the District Court on

respondent's motion to dismiss was

whether the respondent had borne the

burden of demonstrating that even though

petitioner was a "third country national

(employed) by the foreign state in the

United States" in what appeared from the

verified complaint to be the clerical or

administrative position of "researcher"

and "political adviser", the nature of

petitioner's employment was nevertheless

not “commercial activity.”

To carry this Durden respondent

submitted nothing to the District Court.

Respondent's initial affirmation merely

made arguments of law, the supplementary

affirmation claimed that there would be

communication from the State Department,

and the reply affirmation presented

documents which showed attendance at

meetings by petitioner but did not in any

respect disclose the nature of his

employment. Notwithstanding this obvious

failure to present proof capable of

Sustaining respondent's burden, the

District Court dismissed the complaint.

And the dismissal was explicit in its

focus on petitioner's obligation to

demonstrate “commercial activity" in his

employment. Because of the lack of

submissions before the Court, the

decision could not discuss respondent's

contentions about the nature of

petitioner's employment or respondent's

demonstration of its non-commercial

nature. To the contrary, the decision

Stated that petitioner's argument that

his employment was a "commercial

activity" was "overly broad" (A.6). And

the decision went on to hypothecate--

nothing appears in the record to support

this view-- that "plaintiff's work as a

researcher and political adviser at

defendant's Mission is not a commercial

activity, but an essentially political

form of employment peculiar to

governments” (A.8; emphasis added).

Because the record in this case does not

even contain petitioner's job

description, any conclusion about the

political essence of his employment was

based on sheer surmise. Indeed, because

the legislative history explained that a

third country national in the United

States providing foreign governments with

public relations, marketing, or

investment assistance was clearly engaged

in "commercial activity", providing

consulting services, research, and

analysis of political developments to a

small country-- respondent's total

poplulation is approximately 300,000--

which would pay a third country national

for such services could be no less

commercial.

Notwithstanding the errors that

led to the dismissal of petitioner's

complaint, and the Second Circuit's

previous statement that "(t)he

determination of whether particular

behavior is ‘commercial’ is perhaps the

most important decision a court faces in

an FSIA suit" (Texas Trading v. Federal

Republic of Nigeria, 647 F.2d at 308),

the Second Circuit affirmed. It, too,

placed the burden of establishing

commercial activity on petitioner. The

Second Circuit, thus, discussed

petitioner's "allegation that the case

falls within the commercial activity

exception", petitioner's characterization

of respondent's act in employing him, and

petitioner's supposed activities of

employment. And despite its own previous

decisions which reversed jurisdictional

dismissals when the record lacked

affidavits made on personal knowledge to

demonstrate lack of jurisdiction (see,

e.g., Kamen v. A.T.&T. Communications,

Inc.» 799i ¥.26 i666, i021 (24 Cit.

1986)), and its own previous decisions

which reversed the same District Judge

when he had previously dismissed without

permitting development of the record

(Williams v. Kuhlman, 722 F.2d 1048,

icsiaaisisdiitiaitenoiseis a NET ei tin cand tal

1050-1051 (2d Cir. 1983)), the Second

Circuit not only upheld the instant

dismissal but expanded the District

Court's surmise about petitioner's

employment:

(W)e note that appellant was

employed by the UAE Mission to

the United Nations to handle

political advisory and research

functions. Thus, the evident

political nature of the

employment mandates a finding

that appellant's activity was

not within the “commercial

activity" exception to

sovereign immunity. (A.2-3;

Emphasis added).

This affirmance clearly misplaced the

burden in FSIA cases, conflicted with

decisions in other circuits, and vitiated

the limitations of immunity FSIA was

intended to provide. Accordingly, the

Court should grant certiorari, vacate the

Second Circuit's decision, and remand

this case to the District Court with

instructions to reinstate the complaint

and deny the motion to dismiss.

Conclusion

For the foregoing reasons,

certiorari should be granted.

Respectfully

submitted,

DAVID SETH MICHAELS

Attorney for

Petitioner

Route 203 at Beale

Road

Spencertown, New York

12165

Tel.: (518) 392-9150

Dated: Spencertown, New York

February 9, 1987

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated term of the United

States Court of Appeals for the Second

Circuit, held in the United States

Courthouse in the City of New York on the

2lst day of November, one thousand nine

hundred and eighty-six.

PRESENT:

HON. J. EDWARD LUMBARD

HON. ELLSWORTH A. VAN GRAAFEILAND

HON. LAWRENCE W. PIERCE,

Circuit Judges,

AHMED SROUR,

Plaintiff-Appellant,

Vv.

ORDER

THE UNITED ARAB EMIRATES,

86-7662

Defendant-Appellee.

Appeal from an order of

dismissal of appellant's complaint in the

United States District Court for the

Southern District of New York (Knapp,

Je)-

Appellant is a foreign national

who was employed by appellee The United

Arab Emirates ("UAE") as a researcher and

political advisor for several years. He

ee ee ed 6 PE em AG cent.» etemetorettr’% 2

» ve ye * Ce) tees Se ee “s aes et re

“ ene ae oo os the.

oh -

sovereign immunity.

We have considered each of

appellant's other claims and find them to

be without merit.

We affirm the judgment of the

district court.

aa isl

HON. J. EDWARD LUMBARD

Lsf

HON. ELLSWORTH A. VAN GRAAFEILAND

LsL

HON. LAWRENCE W. PIERCE

Circuit Judges.

Appendix B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

AHMED SROUR,

Plaintiff,

MEMORANDUM & ORDER

- against -

86 Civ. 3319 (WK)

UNITED ARAB EMIRATES,

Defendant.

WHITMAN KNAPP, D. J.

Plaintiff Ahmed Srour brings

this action against defendant United Arab

Emirates alleging wrongful discharge from

his employment with defendant's Mission

in New York City. Defendant moves to

dismiss on the ground, among others, of

immunity under the Foreign Sovereign

Immunities Act of 1976, 28 U.S.C. Section

1602 et seq. (1986). For reasons which

follow we grant defendant's motion and

dismiss the complaint.

The complaint alleges that

plaintiff occupied the position of

researcher and “political adviser” with

defendant's Mission and that he was

wrongfully discharged (complaint at

paragraph 6).

The Foreign Sovereign

Immunities Act makes a foreign state

immune from suit in a United States

Court, with certain enumerated

exceptions. The sole exception with

which we must concern ourselves on this

motion is whether defendant's act in

employing plaintiff was "a commercial

activity.” 28 U.S.C. Sections 1630(d),

1605(a)(2). The statute defines "a

commercial activity" as follows, 28

U.S.C. Section 1603(d):

a 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 conduct or particular

transaction or act, rather than

by reference to its purpose.

Plaintiff argues that the act

of employing an individual is per se

commercial since that act can be

performed by private parties as well as

governments. He contends that only

activities whose performance is

exclusively within the power of a state

are protected by immunity.

Plaintiff's argument appears to

be an overly broad construction of the

Court of Appeals" formulation in Texas

Trading v. Federal Republic of Nigeria

(2d Cir. 1981) 647 F.2d 300 where it

stated, "if the activity is one in which

a private person could engage, it is not

entitled to immunity." The "activity"

here in question is more than just

employment per se. It encompasses the

specific type of employment in which

plaintiff was engaged. See Arango v.

Guzman Travel Advisors Corp. (5th Cir.

Sige ESE a et + ts tHE

ae A

1980) 621 F.2d 1371, 1379 ("The focus of

the exception to immunity recognized in

1605(a) (2) ... is on whether the

particular conduct giving rise to the

Claim in question actually constitutes or

is in connection with commercial

activity.")

It is certainly possible for a

foreign state to engage in employment

contracts in this country which are both

commercial and non-commercial in nature.

Cf. Truck v. Pan American Health

Organization (D.C. Cir. 1981) 668 F.2d

547 (claim arising from international

health organization's supervision of its

civil service personnel not commercial in

nature.). We think it obvious that

employment as a military attache at a

diplomatic Mission would not be

considered commercial, while employment

as a stockbroker to invest for profit the

funds of a foreign state in the New York

Stock Exchange would be commercial.

Likewise, plaintiff's work as a

researcher and political adviser at

defendant's Mission is not a commercial

activity, but an essentially political

form of employment peculiar to

governments and therefore entitled to

immunity.

Since we find that plaintiff's

employment was not commercial in nature

and that defendant is immune from this

lawsuit, we grant defendant's motion and

dismiss the complaint.

SO ORDERED.

DATED: New York, New York

July 29, 1986

/s/

WHITMAN KNAPP,

U.8-Ded

Appendix C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

AHMED SROUR,

Plaintiff,

VERIFIED COMPLAINT

- against -

86 Civ. 3319 (WK)

UNITED ARAB EMIRATES,

Defendant.

Now comes the Plaintiff by his

attorney, Michele Forzley, Esq., and says

for his complaint as follows:

1. Jurisdiction of this action

is based upon 28 U.S.C.S.1330.

2. Defendant, United Arab

Emirates (hereafter UAE) at all times

mentioned herein is a foreign sovereign

state, which maintains an office and a

Mission at 747 Third Avenue, New York,

New York 10017.

3. Plaintiff Ahmed Srour is a

resident of the State of New York and of

the United States.

4. That this action is based

upon a commercial activity performed in

the United States in New York City and

upon the tortious acts of and ommissions

of officials and employees done within

the scope of their employ and office in

New York City and elsewhere.

5. Plaintiff began his employ

pursuant to an oral agreement in March

1981 at the Permanent Mission of the

United Arab Emirates as a local employee

without a special contract in the

capacity of political advisor.

6. Plaintiff was promoted to

the grade of “Researcher”, in the

capacity of political advisor on January

1, 1984, pursuant to a Special Contract

(hereafter Special Contract) of

employment, and continued to function as

a political advisor until July 1l, 1985,

when defendant terminated his employment.

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A copy of the Special Contract is

attached as Exhibit A. At the time of

his termination, he was 44 years old and

had worked for Defendant for four and one

half years with approximately two weeks

break in service in the summer of 1984

for vacation only.

7. The Special Contract was

entered into in New York City on or about

January 1, 1984 and was delivered to

Plaintiff personally in New York City.

8. The Special Contract was

executed pursuant to the provisions of

the Local Employees Act of 1983 of the

United Arab Emirates and accordingly

Plaintiff was promoted to the grade of

Researcher with the duties and functions

of political advisor because and only

after his full personal data, educational

degrees and work experience had been

substantiated to the Ministry of Foreign

Affairs by the Permanent Mission in New

York and the Ministry was fully aware of

the full description of the duties

Plaintiff would undertake and the reasons

for employing him under a Special

Contract.

9. That the Special Contract

provided for Plaintiff to perform the

duties of political advisor for the State

of the United Arab Emirates at their

local office, the Permanent Mission

located in New York City. Said Contract

was renewable annually, with the last

renewal occurring January l, 1985.

10. That the Special Contract

provided for the hiring of Plaintiff on

an annual basis at a rate of $2,000.00

per month in compensation, forty five

days vacation pay and for severance pay

of one month's pay per year of work.

ll. That Plaintiff performed

all required services and fulfilled all

conditions existing under the Special

Contract satisfactorily to Defendant at

all times herein mentioned and has at all

times been ready, willing and able to

perform and has offered to perform all of

the conditions and requirements of the

Special Contract.

12. That Plaintiff performed

services for the full year of 1984 and up

to and including the month of July 1985

as a political advisor.

13. Plaintiff took no vacation

time in 1985.

14. That on or about May 29,

1985, without the agreement of Plaintiff,

nor notice to him, Defendant unilaterally

changed koth Plaintiff's job title and

job description to one for which

Plaintiff had not contracted to perform

and one for which the Ministry of Foreign

Affairs had not been notified nor

approved of, in violation of the Local

Employees Act and in breach of the

Special Contract. The unilateral change

was done by the issuance by the Permanent

Mission of a statement and flow chart

changing Plaintiff's job from political

advisor to assistant to the head of the

Economic and Social Department of the

Mission. Plaintiff had no experience nor

education in economics or social matters.

15. That because Plaintiff

could not perform the new duties, he

attempted to resolve the obvious problem

amicably by communicating to the

Ambassador and the Charge d‘Affairs in

writing.

16. Despite these efforts

Plaintiff was wrongfully terminated from

his duties on or about July 1l, 1985

without any good cause and without any

misconduct. The termination was wrongful

and in breach of the Special Contract in

that performance by Plaintiff was wholly

satisfactory. Since the date of

termination, Defendant has failed and

refused to permit Plaintiff tc perform

under the aforesaid Special Contract.

17. That therefore, Defendant

breached the Contract.

18. As a result thereof,

Plaintiff has suffered substantial loss

of profits and other benefits.

19. Wherefore, Plaintiff

demands judgment in the amount of

$21,000.00, plus interest, the costs and

legal fees of his proceeding.

AS AND FOR A SECOND CAUSE OF ACTION

20. Plaintiff repeats and

realleges paragraph 1-19 herein.

21. As a proximate result of

Defendant's termination of Plaintiff as

an employee and in discharging Plaintiff

from his employment, Plaintiff's

reputation as a faithful and diligent

representative in the diplomatic

community has been damaged; and it has

become impossible for him to obtain

employment with another Mission and/or

Sovereign in a position comparable with

the position Plaintiff held at the time

of his termination.

22. As a result of which

Plaintiff has been damaged in the sum of.

$2,000,000.00.

AS AND FOR A THIRD CAUSE OF ACTION

23. Plaintiff repeats and

realleges paragraphs 1-22 herein.

24. Plaintiff relied upon the

representations of the State of the

United Arab Emirates in accepting

employment pursuant to the Special

Contract, that in approximately one year

that Plaintiff would be promoted to the

grade of Advisor pursuant to a Foreign

Contract.

25. An advisor with a Foreign

Contract receives salary and benefits in

excess of $250,000.00 per year.

26. The Ministry of Foreign

Affairs of the State of the United Arab

Emirates represented that pursuant to

Circular 103 of 1983, that although

Defendant desired to employ Plaintiff

with the grade of Advisor, that it could

not do so due to current financial

restraints and that it anticipated doing

so in about a year.

27. As a result of the

wrongful termination and breach of the

Special Contract, Plaintiff was damaged

in the sum of $5,000,000.

AS AND FOR A FOURTH CAUSE OF ACTION

28. Plaintiff repeats and

realleges all of the allegations

contained in paragraphs 1-27.

29. Said conduct of Defendant

was wilful, malicious and oppressive and

constitutes a fraud on the public, as

well as imposing great emotional distress

upon Plaintiff constituting the tort of

outrage for which Defendant is

responsible to Plaintiff “or punitive

damages.

30. As a result of Defendants

wrongful termination of Plaintiff and

breach of the Special Contract,,

Plaintiff has sustained and continues to

sustain substantial losses in earnings,

and other employment benefits and has

suffered and continues to suffer

humiliation, mental and physical pain,

and anguish, and has-been ostracized from

the diplomatic community all to his

damage in a sum exceeding $2,000,000.00

or more.

AS AND FOR A FIFTH CAUSE OF ACTION

31. Plaintiff repeats and

realleges paragraphs 1-30 herein.

32. Plaintiff was hired and

promoted to the grade of Researcher based

upon his education, experience and

knowledge as a political advisor which

position and description of duties were

specifically approved by the Defendant

pursuant to the requirements of the Local

Employees Act.

33. The conduct of Defendant

in unilaterally changing Plaintiff's job

function and thus requiring Plaintiff to

engage in the performance of services

which were not within his experience or

education, nor job description, nor

Special Contract, in order to continue

his employment relationship with

Defendant and Defendant's termination of

Plaintiff's employment relationship

constituted a breach of the covenant of

good faith and was oppressive, maliciaous

and fraudulent and justifies the

imposition of an award of punitive

damages against Defendant in favor of

Plaintiff.

34. Wherefore, Plaintiff prays

for punitive damages in the amount of

$9,000,000.00.

Wherefore, Plaintiff prays for

judgment in its favor as follows:

1. on Plaintiff's first cause

of action $21,000.00, plus legal fees,

interest and the costs of this

proceeding,

2. on Plaintiff's second cause

of action $2,000,000.00,

3. on Plaintiff's third cause

of action $5,000,000.00,

4. on Plaintiff's fourth cause

of action $2,000,000.00,

5. on Plaintiff's fifth cause

of action $9,000,000.00,

6. and for such other and

further relief as to this Court seems

just.

Respectfully,

/s/

Michele Forzley

Attorney for Plaintiff

125 Cedar Street

New York, New York 10006

U.S.A.

(212) 406-4973

Dated April 14, 1986

VERIFICATION

I, Ahmed Srour, the Plaintiff

in the above captioned matter, do hereby

State, that I have read the contents of

the summons, the complaint and the notice

of suit, and say that the contents are

true to the best of my knowledge and

belief.

a Ls/

AHMED SROUR

On the 16th day of April, 1986,

before me came Ahmed Srour to me known to

be the individual who signed this

verification.

/s/

Notary Public

EXHIBIT "A"

STATE OF THE UNITED ARAB EMIRATES

MINISTRY OF FOREIGN AFFAIRS

(Personnel Dept.)

No. 7/6/6 --1041

Date: 11/29/1983

To the Permanent Mission of the

State of the United Arab Emirates/New

York.

Peace upon you and God's mercy

and blessings.

In reference to your letter No.

1036/83 dated 10/10/1983, regarding Mr.

Ahmed Srour.

We enclose herewith, the

contractual agreement which will be

concluded with him as of 1/1/84. Please

type it on the Mission's official

Stationary, sign it and return to us the

Original and two copies along with the

decision of terminating his service in

accordance with Item three in the

agreement.

It is requested that you do

what is necessary to relay to us. Please

do the necessary action and acknowledge.

Yours truly,

Signed by the Under-Secretary

of the Ministry of

Foreign Affairs

Copies to:-

-Personnel file

-Mission file

-General File

-Out-going file Secretarial

IN THE NAME OF GOD, THE MERCIFUL

AND THE COMPASSIONATE

STATE OF THE UNITED ARAB EMIRATES

FOREIGN MINISTRY

CONTRACTUAL AGREEMENT WITH A

LOCAL EMPLOYEE AT A

REPRESENTATIVE MISSION

On Saturday, 12/31/1983, the

Permanent Mission of the State of the

United Arab Emirates (New York) by its

representative, the permanent

representative of the State of the United

Arab Emirates, as party one and Mr. Ahmed

Srour, of Lebanese nationality, as party

two, agreed on the following:

Item one:

Party one agrees to appoint party two in

a local job (Researcher with the

permanent Mission of the State of the

United Arab Emirates (New York) for a

monthly salary of $2000 (Two Thousand

Dollars), without any periodical

increases.

Item two:

Should party two wish to resign, he

should submit a written notice, at least

three months before the date of leaving

service, otherwise the salary pay of the

balance of the notice period is to be

deducted from his salary. Same rule

applies too, if he quits from his

service, without any reasonable excuse

which might have caused the termination

of his service.

Item Three:

The service of party two is considered

from 3/1/1981 until 12/31/1983, his end

of service compensation, including

vacation pay at his salary rate on

12/31/1983, should be settled on the

basis of his salary.

Item Four:

Party two is entitled to a yearly

vacation of 45 days.

Item Five:

The provisions of Local Employees system

at the Representative Missions of the

United Arab Emirates applies regarding

other terms of employment which are not

included in this agreement and do not

conflict with it.

Item Six:

This agreement goes into effect as of

1/1/1984 and is issued in four copies one

for party two.

Party one Party two

(sgnd) (sgnd)

Appendix D

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

AHMED SROUR,

Plaintiff,

MOTION

- against -

86 Civ. 3319 (WK)

UNITED ARAB EMIRATES,

Defendant.

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Motion by: | United Arab Emirates

(defendant)

Return Date: Friday July 25, 1986

at 2 p.m. before

Judge Knapp, U.S.

District Court,

Southern District of

New York, Courtroom

619.

Relief Requested: Dismissal of

Complaint under

Foreign Sovereign

Immunity Act and

Diplomatic Immunity

Act.

Supporting Papers: Attorney's

Affirmation dated

June 25, 1986.

Complaint

Memorandum of Law,

and other grounds.

Answering papers

shall be served 5

days before the

Return Date.

Dated: New York, New York

June 25, 1986

Lsl

OMAR Z. GHOBASHY

Attorney for

Defendant

135 West 50th St.

No. 1840

New York, NY 10020

(212) 757-1770

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

AHMED SROUR,

Plaintiff,

AFFIRMATION

- against -

86 Civ. 3319 (WK)

UNITED ARAB EMIRATES,

Defendant.

STATE OF NEW YORK

COUNTY OF NEW YORK

OMAR Z. GHOBASHY, an attorney

admitted to practice before this court,

affirms:

1. I am attorney for

defendant.

2. Iam fully familiar with

facts herein.

3. I am making this

affirmation in suport of motion to

dismiss this action.

4. This Court does not have

jurisdiction over defendant.

5. The action is based on

alleged contract between the Permanent

Mission of United Arab Emirates to United

Nations and plaintiff, a former member of

this Mission. To circumvent the law,

this action is not brought against the

Real Party in interest, U.A.E. Mission to

U.N. because the Mission is not amenable

to suit because of Diplomatic Immunity

under United Nations Headquarters

Agreement, Treaties and laws of U.S.A.

The theory of plaintiff that a Diplomatic

Mission is an agent of a sovereign State

and can be sued under Foreign Sovereign

Immunity Act has long been rejected by

the Courts. Accordingly, since this

action is based on a contract between a

U.N. Mission, enjoying diplomatic

immunity and one of its employee, it

should be dismissed, notwithstanding that

the UN Mission is not named as party

defendant but the Sovereign State U.A.E.

is named as defendant.

6. This action is barred by

F.S.I.A. (Foreign Sovereign Immunity

Act). It is not within the exceptions

listed in the Act regarding commercial

activities. A U.N. Mission is

specifically and definately considered by

the courts to be a diplomatic entity

exempted from suit in U.S.A. The State

of U.A.E. by conducting diplomatic

activities. Thus this action under

F.S.I.A. is not maintainable and should

be dismissed.

7. The complaint and cover

sheet alleges that plaintiff is a

resident of New York. The complaint must

allege that plaintiff is a citizen of New

York. It cannot so allege as plaintiff

is not a citizen of U.S.A. Since it is

clear that there is no diversity of

citizenship this court lacks

jurisdiction. There is no diversity in

action by alien against alien or foreign

State. As the cover sheet shows, this is

a contract action, and accordingly

diversity must exist. There is-no

Federal Statute under which plaintiff

refers to commence this action. Even if

this is a tort action, and although it

appears that no tort is commited under

New York Law which is to be applied by

the court, or any U.S. Law, still

diversity of citizenship must exist. For

this reason the action should be

dismissed.

WHEREFORE, it is requested that

this action be dismissed with cost,

reasonable attorney's fees, and sactions

for these reasons:

1. Diplomatic Immunity of the

real party in interest, United Arab

Emirates Mission to U.N.

2. Foreign Sovereign Immunity

Act.

3. No diversity of

citizenship.

A Memorandum of Law is filed.

Dated: New York, New siecle ne 25, 1986

OMAR Z. GHOBASHY

Attorney for

Defendant

135 West 50th Street

No. 1840

New York, NY 10020

(212) 757-1770

Appendix E

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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AHMED SROUR,

Plaintiff,

AFFIRMATION

- against -

86 Civ. 3319 (WK)

UNITED ARAB EMIRATES,

Defendant.

STATE OF NEW YORK

COUNTY OF NEW YORK

OMAR Z. GHOBASHY, an attorney

admitted to practice before this court,

affirms:

1. This is in support of

Motion to dismiss the action returnable

7/25/86 at 2:00 p.m. by defendants.

2. I am informed by U.S.

Department of State that they will

communicate directly with the Court

suggesting dismissal of action on these

grounds:

(a) Defective service.

(b) U.A.E. Mission is an

indispensable party and immuned from

suit.

relations that action be dismissed.

I was requested to submit an affirmation

to that effect.

WHEREFORE, defendant's motion

to dismiss the action should be in all

respects granted with costs, reasonable

attorney's fees and sanctions for

bringing a frivolous action, knowing that

the party was not properly sued and is

not subject to suit in USA.

Dated: New York, New York

July 9, 1986

/s/

OMAR Z. GHOBASHY

Attorney for

Defendant

on 135 West 50th Street

No. 1840

New York, NY 10020

(212) 757-1770

Appendix F

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

AHMED SROUR,

Plaintiff, |

AFFIRMATION AND

- against - MEMORANDUM IN

RESPONSE

86 Civ. 3319 (WK)

UNITED ARAB EMIRATES,

Defendant.

I, Michele Forzley, Esq.,

counsel to Plaintiff, do hereby make this

affirmation under the pains and penalties

of perjury.

1. This affirmation and

memorandum are submitted in opposition to

Defendant's motion returnable July 25,

1986.

2. The motion of Defendant

should be denied entirely as meritless,

dilatory and totally unfounded under the

facts and applicable law. Further, the

costs and fees incurred by Plaintiff as a

result of defending this motion, should

be assessed against Defendant and its

counsel, as sanctions pursuant to Rule ll

of the Federal Rules of Civil Procedure.

THE UNITED ARAB EMIRATES IS SUBJECT TO

THE JURISDICITONS OF THIS COURT

3. Not only is the sovereign

State, the United Arab Emirates the

proper party, it is also subject ot suit

within the United States in an action

such as the one at bar.

4. The case at bar is based

upon a simple commercial activity carried

on within the United States by the

Defendant foreign state, which activity

is clearly the kind of activity subject

to suit pursuant to 28 U.S.C.A.

s1605(a) (2). The activity is the hiring,

employing and wrongful firing of

Plaintiff. Plaintiff was a local

employee as defined in the Local

Employees System Act, which was

specifically made a part of the Contract

between Plaintiff and Defendant. Therein

at Article 1/3, attached as Exhibit A, it

is clear that the title "local employee”

includes many kinds of employment from

"Drivers" to "Translators". Plaintiff's

Contract refers to him as a local

employee with the title Researcher.

5. Under all the tests for

determining whether the basis for a suit

is commercial, there can be no conclusion

other than that the matter at bar is

commercial. Since hiring, employing and

wrongful firing are activities that can

be engaged in by both private parties and

sovereigns and these are the transactions

complained of by Plaintiff, the basis for

the suit is commercial and Defendant is

not immune International Association of

Machinists and Aerospace Workers v. OPEC,

(D.C. Cal. 1979), 477 F.Supp. 553, aff'd

649 F.2d 1354, cert. den. 102 S. Ct.

1036, 454 U.S. 1163, 71 L.Ed. 319.

6. In order for the acts of a

sovereign to be "immune" from suit, the

acts must be of a public nature or those

truly governmental acts McDonnell Douglas

Corp. v. Islamic Republic of Iran, (CA 8

Mo. 1985), 758 F.2d 341, Veriinden B.V.

v. Central Bank of Nigeria, (N.Y. 1983),

103 S. Ct. 1962, 461 U.S. 480, 76 L.Ed.2d

81. There can be no question, but that

the hiring, employing and firing of a

person are not public nor governmental

acts. Since sovereign immunity is the

exception and not the rule, the Court is

constrained to take a puristic look at

the substance of the lawsuit to determine

the issue of whether the transaction

complained of is commercial or

governmental. Thus, only the nature of

the activity giving rise to the claim

must be considered and not the purpose of

the challenged conduct. As long as the

requisite relation to the United States

is present (not in issue here) the

district court has subject matter

jurisdiction Texas Trading & Mill Corp.

v. Federal Republic of Nigeria, (CA. N.Y.

1981), 647 F.2d. 300, cert. den. 102

S.Ct. 1012, 454 U.S. 1148, 71 L.Ed. 301.

7. Defendant United Arab

Emirates is also subject to suit in the

United States for the tortious acts of

and ommissions of officials and employees

of Defendant pursuant to 28 USC

1605(a) (5) which acts and ommissions are

specifically enumerated in the complaint

at bar Persinger v. Islamic Republic of

Iran, 1984, 729 F.2d 835, 234 U.S. App.

D.C. 349, cert. den. 105 S.Ct. 247.

8. Defendant has failed to

show why the case at bar does not

contemplate commercial activity.

Defendant merely claims that it is

exempt; this however is inadequate to

meet the burden of proof imposed on the

party claiming immunity Transamerican SS.

v. C.N.A.N., (CA. Texas, 1984), 730 F.2d

195. Accordingly, Defendant's motion

should be denied.

THE U.A.E. IS THE ONLY PROPER PARTY

9. Defendant United Arab

Emirates is the proper party and the only

party. The Contract between Plaintiff

and Defendant (attached to the complaint

as Exhibit A) clearly recites that there

are two parties; Plaintiff and Defendant;

Ahmed Srour and the state of the United

Arab Emirates.

10. The Permanent Mission in

New York is the physical embodiement of

the Defendant state just as a corporate

officer is the corporeal embodiement of a

corporation. When the Defendant, the

State of the United Arab Emirates,

decided to enter into the Contract, the

Permanent Mission as the embodiement of

the Defendant was directed in a cover

letter by the Defendant to execute the

Contract with Plaintiff. The cover

letter is attached with the Contract and

is part of Exhibit A to the Complaint.

When Plaintiff was wrongfully

terminated, the act was done by the State

of the United Arab Emirates. Exhibit B is

the termination memorandum and is

executed. by the State and shows that the

Defendnat terminated Plaintiff.

THE MISSION IN NEW YORK

IS THE UNITED ARAB EMIRATES

ll. The Foreign Sovereign

Immunities Act, 28 U.S.C.A. s1603 states

quite clearly that a foreign state

includes an agency or instrumentality of

the foreign state and its missions.

Indeed, it is hard to imagine a purer

embodiement of a foreign state than that

state's Permanent Mission to the United

Nations Gray v. Permanent Mission of

People's Republic of the congo (D.C.N.Y.

1978), 443 F. Supp. 816, aff'd 580 F.2d

1044. Thus, Defendant's argument that

somehow the mission of Defendant is the

proper party is without merit as is the

premise that the mission is somehow

separate and distinct from the government

of the United Arab Emirates. It is one

and the same as the government.

THE U.N. HEADQUARTERS AGREEMENT

DOES NOT APPLY

12. The U.N. Headquarters

Agreement does not support Defendant's

argument. It simply has no applicability

to the case at bar.

DEFENDANT'S JULY 9TH AFFIRMATION

13. On or about July 9, 1986,

Defendant and its counsel submitted an

affirmation so grossly incorrect and

misleading that sanctions should be

imposed against counsel and a copy of the

affirmation referred to the Disciplinary

Committee for inquiry into possible

ethical violations.

14. The undersigned personally

investigated the statements made in

counsel's affirmation with the Department

of State to determine their veracity.

The State Department did not request that

Mr. Ghobashy submit the affirmation. The

position of the State Department

contained in their letter to the Clerk of

Court, dated July 8, 1986, is that

service upon the U.A.E. Mission in New

York is improper. Since service was not

made upon the U.A.E. Mission in New York,

the position of the Department of State

is of academic use only.

DIVERSITY IS NOT AN ISSUE

15. Plaintiff will not discuss

the issue of diversity as no allegation

of diversity is made in the complaint.

EEE

The undersigned thanks Defendant's

counsel for his illuminating discussion

however on the subject.

WHEREFORE, Plaintiff

respectfully prays that Defendant's

motion be dismissed in its entirety and

that sanctions be imposed against

Defendant and its counsel for their

frivolous and meritless motion.

Respecfully,

/s/

Michele Forzley

Attorney for Plaintiff

125 Cedar Street

New York, NY 10006

(212) 406-4973

Dated: July 17, 1986

EXHIBIT “A"

In the name of God the merciful, the

beneficient

(Emblem of the United Arab Emirates)

THE STATE OF THE UNITED ARAB EMIRATES

MINISTRY OF FOREIGN AFFAIRS

LOCAL EMPLOYEES SYSTEM FOR DIPLOMATIC

MISSIONS ABROAD OF THE UNITED

ARAB EMIRATES (1983)

Financial & Administrative Dept.

(Personnel Dept.)

Ministerial Decree No. (1) 1983

To issue Local Employees System for

the Diplomatice Missions, abroad the

state of the United Arab Emirates

Year (1983)

Ministry of the State of Foreign Affairs.

After reviewing the Unification law No.

1/1972, regarding the Ministerial

specializations and the Ministeries

qualifications and the laws amending it,

And the Unification law No. 3/1972

regulating the Diplomatic and the

Consular Corps system.

And the Unification law No. 2/1972,

regulating the Ministry of Foreign

Affairs.

And the Unification Law No. 1/1978,

concerning the index of salaries,

allowances to employees of the Ministry

of Foreign Affairs.

And the Ministry of Foreign Affairs'

decision about the system of local

employees at the Mission of the State of

UAE .

2 - That his service was not ended by

reprimand dismissal or by absence or

delaying in return after vacation.

STATE OF THE UNITED ARAB EMIRATES

MINISTRY OF FOREIGN AFFAIRS

INDEX

Subject

Decree text of systems

10-

ll-

12-

System Explanations

Budget

List of grades and salaries |

Recruiting

General rules

Foreign employees

with special contracts

Temporary recruiting

different rules (in recruity)

Test period

Periodic allowances

Incentive allowances

Promotions

Over-time allowances

Additional allowances

Medical treatment

13- Evaluating employees performance

14- Vacations

15- Assigning for official mission

16- Employees duties

THE SYSTEM DEFINITION

ARTICLE 1/1

This system is called the system of local

employees at the mission of the state of

the United Arab Emirates year 1983.

ARTICLE 1/2

This system includes the basis of

recruiting local employees for the

missions of the state of the United Arab

Emirates, and regulate their employment

relationship with the missions.

ARTICLE 1/3

In applying this system, the following

terms donate the meaning next to them.

The Ministry : Ministry of foreign

affairs

Head Office : The head office at the

ministry of foreign

affairs (center)

Under Secretary : The Under Secretary of

state of Foreign

Affairs, or who

replaces him in his

absence.

The mission : Any mission of the

Diplomatic Missions of the

state of the United Arab

Emirates abroad/

Embassy/Permenant

mission/ Consulate.

Head of Mission : Ambassador/Head of

mission/Consulate

General/ acting

Ambassador or the

head of the permenant

mission, or Consul

General.

The system : The local employees system

The local employee : Any person employed

locally for work at

the mission on its

separate budget.

The definition covers the following

categories:

-Administrative employees, translators

and clerks.

-Employees appointed by the consulate or

Administrative positions by special

contracts.

-General service employees, Messengers,

Drivers, Guards, cooks, waiters,

gardners, servants, cleaning personnel

and any such others employed in such

Capacity.

Employment Budget

Article 2/1

Each Mission has @ special annual

employment budget, which indicates the

following in particular -

-Definite employment

-Vacant employment

-Title and grade of each employee and

salary.

Article 2/2

The number of employees in each grade

should not exceed the limited number of

positions in the Missions's budget.

Article 2/3

The head of Mission may, after the

Minister's approval, transfer the budget

allocated for a special position to

another budget according to the following

2/3/1

The reason of transfer is for the best

interest of work.

EXHIBIT B

State of the United Arab Emirates

Ministry of Foreign Affairs

Finance and Administration Dept.

(Personnel Section)

No. 7/6/6/ - 2339

Date 8/14/1985 - 11/28/1405

Ministry of Finance and Industry

Best Regards:

Subject: Subjective measures regarding

local employees in

representative

Mission (our mission in New

York)

Name Post Type of No. Date of

measure of measure Measure

Ahmad Local Dismissal 11/85 7/11/85

Srour Researcher

A copy of the measure is attached

notes

Distribution Signed

Ministry of Finance Under Secretary

and Industry of the Foreign

Ministry

Our Mission

Personnel Section

Accounting Dept.

THE ARABIC TRANSLATIONS OF THESE

DOCUMENTS ARE INTENTIONALLY OMITTED

Appendix G

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

AHMED SROUR,

Plaintiff,

REPLY AFFIRMATION

- against -

86 Civ. 3319 (WK)

UNITED ARAB EMIRATES,

Defendant.

STATE OF NEW YORK

COUNTY OF NEW YORK

Omar Z. Ghobashy, an attorney

admitted to practice law before U. S.

District courts in the State of New York,

2nd and 3rd Circuits and U.S. Supreme

Court affirms:

1. I am attorney for

defendant.

2. I am making this

affirmation in Reply to plaintiff's

answering papers.

3. The answering papers show

NE EGA RTT ROD WE

failure to properly respond to legal

issues presented in the Motion. It also

illustrates lack of familiarity of

attorney for plaintiff with the law and

the interpretation of the Court of

Foreign Sovereign Immunity Act (FSIA) and

that the Court lacks jurisdiciton over

the person or subject matter.

4. It is evident that despite

the legal points raised, attorney for

plaintiff persists in her intentional

deception and therefore sanctions should

be applied against her and her clients.

5. Totally not responded to is

the fraudulent and intentionally raised

question of jurisdiction of the Court in

which plaintiff's attorney stated that

plaintiff is resident of New York. The

required jurisdictional statement is that

the plaintiff is a “citizen” of New York,

being a citizen of U.S.A., he is an

alien, attempting to sue another alien a

foreign sovereign, under diversity of

citizenship. That they cannot do, and on

this ground alone, the action is

dismissed.

6. Nor the issue of service is

responded to. It appears that service

was not made in accordance with Foreign

Sovereign Immunity Act and accordingly

this Court lacks jurisdiction on this

ground.

7. Annexed to responsive

papers is unauthenticated and uncertified

papers purported to be some official

papers. The paper we received is

unsigned, incomplete and not attached to

any Arabic text.

8. The alleged text refers to

local employees attached to Diplomatic

Missions. Thus the Mission is the

employer and it is an indispensable

party. While attorney for plaintiff

states that Diplomatic Immunity does not

apply, and she does not know Diplomatic

Immunity. She deliberately and

fraudulently evaded the issue by sueing

the wrong party to avoid the defense of

Diplomatic Immunity.

9. Attorney for plaintiff is

confused. A diplomat is not an agent of

his Government in the sense that his

Government waived his immunity for his

acts. A diplomatic mission is a separate

entity and is entitled to Diplomatic

Immunity as a Mission. It carries

diplomatic activities in U.S.A. and these

activities are protected. A diplomat is

immuned from suit even in his personal

affairs, such as rent, purchase, debts.

Plaintiff did not cite any authority to

Support her contention. Cases cited

support defendant's position.

10. It is undisputed that

plaintiff is a member of U.A.E. Mission

to U.N. Annexed, as Exhibit "A" is list

of Delegation to General Assembly. Mr.

Ahmed Srour's name appears. Exhibit "B"

shows names of representatives to.Ad Hoc

Committee including “plaintiff". Exhibit

"C" a list of delegates to U.N. Children

Fund. Srour's name as adviser appears.

Exhibit "D" is list of representatives.

Plaintiff Srour appears. Exhibit "E" is

list of UNICEF, plaintiff's name appears.

Exhibit "F" is a list of representative,

plaintiff's name appears. Exhibit "G”

official U.N. list of diplomats

accredited to U.N. Plaintiff's name is

included. Exhibit "H” Document U.N.

General Assembly. Srour's name appears

as representative and summary of his

Staement on behalf of U.A.E. appears.

Exhibit "I" same as above.

ll. Finally attached is a

Memorandum to U.S. Mission to U.N. by

U.A.E. Mission.

It is clear to the Court that

wee pe

this is an action by a diplomat against

his Head of Mission to U.N. on a dispute

relating to his assignment. That action

cannot be maintained because of

Diplomatic Immunity, Sovereign Immunity,

and lack of jurisdiction. There is

nothing in 28 U.S.C. 1330 that permits an

action between two diplomats or two

members of a mission to the U.N.

A Memorandum of Law is

attached.

WHEREFORE, the Motion of

defendant should be granted in its

entirety with sanctions and costs against

plaintiff and his attorney and reasonable

attorney's fees.

Dated: New York, New York

July 22, 1986

/s/

Omar Z. Ghobashy

Attorney for Defendant

135 West 50th Street

Suite 1840

New York, NY 10020

Tel: (212) 757-1770

EXHIBITS INTENTIONALLY OMITTED

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.