Petition for Writ of Certiorari — Henein v. Saudi Arabian Parsons Ltd.
Supreme Court brief1988
Ask Donna
What actually matters in this document.
Text
Supreme Court, U.S.
FILED
, z ()) NOV
8'7 795 5 1987
JOSEPH F. SPANIOL, JR.
Fall fed K
IN THE
Supreme Court of the Wnited States
October Term, 1987
GAMAL S, HENEIN,
Petitioner,
VS.
SAUDI ARABIAN PARSONS LIMITED,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID O. CARSON
345 North Maple Drive, Suite 200
Beverly Hills, California 90210
(213) 278-1111
Counsel for Petitioner
Of Counsel:
ALEJANDRO N. MAYORKAS
COOPER, EPSTEIN & HUREWITZ
345 North Maple Drive, Suite 200
Beverly Hills, California 0210
(213) 278-1111
November 5, 1987
EDITOR'S NOTE
THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING, IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE
WILL BE ISSUED,
REA
-ji-
QUESTIONS PRESENTED
The Royal Commission for Jubail & Yanbu, a
commercial agency of the government of the
Kingdom of Saudi Arabia, was formed to work
with respondent Saudi Arabian Parsons Limited, an
unincorporated association organized under the laws
of the Kingdom of Saudi Arabia and comprised of
corporations organized in the United States, to
construct an industrial city bordering on the Red
Sea. Petitioner Gamal S. Henein was employed by
respondent to work as a civil engineer on the
industrial city project. An officer of the Royal
Commission for Jubail & Yanbu demanded that
respondent terminate petitioner and turn over his
passport. Respondent thereafter terminated
petitioner for cause, disallowing the payment of all
employment benefits which would have _ been
payable had the termination not been "for cause.”
The questions presented are:
[1] Whether there exists, consonant with the
plurality opinion in Alfred Dunhill of London, Inc.
v. Republic of Cuba, 425 U.S. 682 (1976), a
commercial exception to the "act of state" doctrine.
(a) Whether the act of state doctrine or
any other doctrine precludes a court from
determining whether a private employer has
breached its contractual obligations to an employee,
when the employer excuses its breach by claiming
to be acting under orders from a foreign state.
(b) Whether the demands of an officer of
a commercial agency of a foreign government must
as a matter of law command the deference
accorded an act of a foreign state.
ehh
(c) Whether the act of state doctrine
precludes inquiry into the motivations for an act of
state, as well as its validity.
(d) Whether an interlocutory act of a
foreign state which may in fact have been
ultimately repudiated is to be accorded deference
pursuant to the act of state doctrine.
[2] Whether the United States Court of Appeals
for the Ninth Circuit improperly determined that
an intent to.deceive is a necessary element of the
doctrine of equitable estoppel.
[3] Whether the United States Court of Appeals
for the Ninth Circuit, in its summary adjudication
of petitioner’s negligence claim, committed
reversible error by excluding as inadmissible
hearsay the admissions of an agent of the project
operated by respondents, which admissions raised a
triable issue of fact regarding the negligent driver’s
status as an employee of respondent.
-ili-
TABLE OF CONTENTS
QUESTIONS PRESENTED
TABLE OF AUTHORITIES
THE PARTIES
OPINIONS BELOW
JURISDICTION
STATEMENT OF THE CASE
REASONS FOR GRANTING THE WRIT
I. INTRODUCTION
II. The Ninth Circuit’s Flawed
Application Of The Act Of State
Doctrine Only Intensifies The
Confusion And Unresolved Problems
Surrounding The Doctrine’s Applic-
ability To Commercial Dealings
A. The Act Of State Doctrine Must
Not Preclude Adjudication Of
The Private Commercial Conse-
quences Of A Foreign Act Of
State
vi
10
1]
16
-jiv-
B. The Demands Of An Officer Of
A Commercial Agency Of A
Foreign State Cannot As A
Matter Of Law Command The
Deference Accorded An Act Of
A Foreign State 18
C. The Act Of State Doctrine Does
Not Preclude Inquiry Into The
Motivations For An _ Alleged
Decision Of A Foreign State In
Order to Determine Whether The
Decision Was Commercial Or A
Genuine Act Of State 21
D. An _ Interlocutory Act Of A
Foreign State Should Not Be
Accorded Deference Pursuant To
The Act Of State Doctrine 22
Ill. An Intent To Deceive Is Not A
Necessary Element Of The Doctrine
Of Equitable Estoppel 25
IV. The Ninth Circuit Committed
Reversible Error By Excluding As
Inadmissible Hearsay The Admissions
Of An Agent Of The Project
Operated By Respondent, Which
Admissions Raised A Triable Issue Of
Fact In Petitioner’s Negligence Claim 27
CONCLUSION 29
APPENDIX A
Opinion of the United States Court of
Appeals for the Ninth Circuit, on appeal
from the United States District Court
for the Central District of California, in
Gamal S. Henein v. Saudi Arabian
Parsons Limited, No. 85-6128, argued
August 6, 1986 and filed June 5, 1987
APPENDIX B
Order of the United States Court of
Appeals for the Ninth Circuit denying
rehearing of Petitioner’s claims, filed
July 8, 1987
APPENDIX C
Summary Judgment of Dismissal by the
United States District Court for the
Central District of California in favor of
Defendant Saudi Arabian Parsons
Limited, No. 82-2330-WPG, dated
June 25, 1985
APPENDIX D
Order of the United States Supreme
Court extending the time to file a
petition for writ of certiorari, dated
October 6, 1987
APPENDIX E
Excerpts from Employment Agreement
D-1
E-]
-Vi-
TABLE OF AUTHORITIES
CASES
Airline Pilots Association, Interna-
tional, AFL-CIO v. TACA
International Airlines, S.A., 748 F.2d
965 (Sth Cir. 1984), cert. denied,
471 U.S. 1100 (1985)
Alfred Dunhill of London, Inc. v.
Republic of Cuba, 425 US. 682
(1976)
Allied Bank International v. Banco
Credito Agricola De Cartago, 757
F.2d 516 (2nd Cir. 1985)
Arango v. Guzman Travel Advisors
Corp., 621 F.2d 1371 (Sth Cir.
1980), cert. denied, 474 U.S. 995
(1985)
Banco Nacional de Cuba v. Sabbatino,
376 U.S. 398 (1964)
Callejo v. Bancomer, S.A., 764 F.2d
1101 (Sth Cir. 1985)
Compania De Gas De Nuevo Laredo,
S.A. v. Entex, Inc., 686 F.2d 322
(Sth Cir. 1982), cert. denied, 460
U.S. 1041 (1983)
16
13,14,18
16
16
10,12,13
15,21,25
1]
-Vii-
DeRoburt v. Gannett Co., 733 F.2d
701 (9th Cir. 1984), cert. denied,
469 U.S. 1159 (1985)
Dominicus Americana Bohio v. Gulf &
Western Industries, Inc., 473 F.Supp.
680 (S.D.N.Y. 1979)
First National City Bank v. Banco
Nacional de Cuba, 406 U.S. 759
(1972)
First National City Bank v. Banco
Para El Comercio Exterior De Cuba,
462 US. 611 (1983)
Lix v. Edwards, 82 Cal.App.3d 573
147 Cal.Rptr. 294 (1978)
Ramirez de Arellano v. Weinberger,
745 F.2d 1500 (D.C. Cir. 1984),
vacated on other grounds, 471 USS.
1113 (1985)
Texas Trading & Milling Corp. v.
Federal Republic of Nigeria, 647
F.2d 300 (2d Cir. 1981), cert.
denied, 454 U.S. 1148 (1982)
The "Gul Djemal,” 264 U.S. 90 (1924)
The Schooner Exchange v. M’Faddon,
7 Cranch 116, 3 L.Ed. 287 (1812)
Underhill v. Hernandez. 168 U.S. 250
(1897)
21
25
12
18
26
24
15
18,19
12
12
-Viii-
STATUTES AND REGULATIONS
Rule 56(d), Fed. R. Civ. P. 3
Rule 801(d)(2)(D), Fed. R. Evid. 28
OTHER AUTHORITIES
Mann, The _ Sacrosanctity of the
Foreign Act of State, 59 L.Q. Rev.
42 (1943) 13
IN THE SUPREME COURT
OF THE UNITED STATES
October Term, 1987
GAMAL 5S. HENEIN,
Petitioner,
vs.
SAUDI ARABIAN PARSONS LIMITED,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT
The petitioner Gamal S. Henein respectfully
prays that a writ of certiorari issue to review the
judgment and opinion of the United States Court
of Appeals for the Ninth Circuit in the case of
Henein v. Saudi Arabian Parsons Limited, No.
85-6128 on said Court’s docket.
THE PARTIES
The parties to the proceedings below were the
petitioner Gamal S. Henein and the respondent
Saudi Arabian Parsons Limited.
OPINIONS BELOW
The opinion of the United States Court of
Appeals for the Ninth Circuit is not yet reported
ie
and was rendered on June 5, 1987. The opinion |
is reprinted as Appendix A _ hereto, page A-l,
infra. The order of the United States Court of
Appeals for the Ninth Circuit denying rehearing is
reprinted as Appendix B hereto, page B-1, infra.
The summary judgment of dismissal issued by
the United States District Court for the Central
District of California has not been reported. It is
reprinted as Appendix C hereto, page C-1, infra.
JURISDICTION
The opinion of the United States Court of
Appeals for the Ninth Circuit was dated June 5,
1987. The Court of Appeals denied petitioner’s
petition for rehearing on July 8, 1987.
On October 6, 1987, Justice O’Connor ordered
that the time for filing this petition for writ of
certiorari be extended to and including
November 5, 1987. A copy of said order is
reprinted as Appendix D hereto, page D-1, infra.
The jurisdiction of this Court to review the
judgment of the Ninth Circuit is invoked under 28
U.S.C. §1254(1).
STATEMENT OF THE CASE
The Royal Commission for Jubail & Yanbu
(the "Royal Commission"), a commercial agency of
the government of the Kingdom of Saudi Arabia,
was formed to work with respondent Saudi
Arabian Parsons Limited ("respondent"), an
unincorporated association organized under the laws
of the Kingdom of Saudi Arabia and comprised of
1 Hereinafter referred to as "Opinion."
tn
corporations organized in the United States, to
construct an industrial city bordering on the Red
Sea. "CR" at pages 66-67.2
Petitioner Gamal S. Henein ("petitioner") is a
citizen of the United States of America who,
pursuant to a written employment agreement, was
to perform services for respondent as a principal
civil engineer in Saudi Arabia from May 20, 1980
to November 20, 1981.3
Prior to.petitioner’s departure for Saudi Arabia,
respondent gave petitioner two _ informational
pamphlets which, among other things, apprised
petitioner of what to expect in Saudi Arabia and
what he might wish to bring with him. Of
particular significance is the fact that respondent’s
informational pamphlets advised petitioner that he
could bring prescription medicine with him into
the country as long as he brought the prescription
itself as well. Opinion at page A-6; CR at page
398. Petitioner did so.
On May 14, 1981, during the course of his
employ with respondent, petitioner was involved in
an accident when the automobile he was driving
é References .to the record, denominated herein as
"CR," are to the Appellant's Excerpts of Clerk's
Record filed with the United States Court of Appeals
for the Ninth Court.
3 In its opinion the Ninth Circuit misstated the
prospective time period of petitioner's contractual
performance. Compare Article I of the employment
agreement, reprinted at page D-1, infra, to the
court's statement of the contractual term, reprinted
at page A-6, infra.
willis
-_was hit by a truck.4 Petitioner was hospitalized
in Saudi Arabia for serious injuries. Due to the
gravity of his injuries he was soon thereafter
transported to Los Angeles, where his
hospitalization continued. Opinion at page A-7.
During the Saudis’ investigation of petitioner’s
automobile accident, police found a prescription
drug in petitioner’s briefcase. According to the
declarations of three former employees. of
respondent, a Captain Yusuf Hijr, the Security
Coordinator for the Royal Commission which
served as liaison between respondent and_ the
government of the Kingdom of Saudi Arabia,
demanded that, in light of petitioner’s possession
of a prescription drug, respondent terminate
petitioner and turn over his passport. Opinion at
page A-9; CR at pages 97-106. Respondent did so.
In fact, while petitioner was recuperating in
Los Angeles, petitioner received a communication
from respondent stating that his employment was
terminated for cause, thereby depriving petitioner
of certain benefits to which he would otherwise
have been entitled. Opinion at page A-7; CR at
pages 147-150.
In order to effectively deprive petitioner of
any and ail employment benefits, respondent must
necessarily have deemed the termination of
petitioner to be "for cause” pursuant to section
12.1.A of the employment agreement; if petitioner
was considered to be terminated for “any other
lawful reason," he would have been, pursuant
4 Conflicting evidence was presented to the courts
below relative to the truck driver's status as an
employee of respondent. See discussion, infra.
=
to section 12.2 of the employment agreement,
considered to have satisfactorily completed his
work and therefore entitled to employment
benefits. Petitioner’s work performance itself was
not called into question upon his termination.
Section 12.1.A of the employment agreement
set forth the grounds upon which an employee of
respondent could be terminated for cause. Section
12.1.A stated in relevant part:
SAPL, at its discretion, may at any
time terminate Employee’s
employment hereunder for’ cause,
such as ... illegal use of drugs
failure to comply with the local
customs or laws of Saudi Arabia ...
or conduct of any dependent or guest
of Employee in the country of the
Employment which is detrimental to
SAPL....>
Respondent terminated petitioner "for cause”
based on its position that Captain Hijr spoke for
the government of the Kingdom of Saudi Arabia,
and that in said capacity he had demanded
petitioner’s termination and banishment _ for
petitioner’s "failure to comply with the _ local
5 Section 12. of the employment agreement’. is
reprinted in its entirety commencing at page €E-2,
infra. Significantly, the Ninth Circuit misstated
said section in its Opinion, asserting that
petitioner could be terminated for cause for his own
conduct that would be detrimental to respondent,
rather than for such conduct of “any dependent or
guest" of his. Compare Section 12.1.A, reprinted in
full at page E-2, infra, to the Ninth Circuit's
recitation of said contractual term, reprinted at
page A-6, infra.
in
customs or laws of Saudi Arabia"; namely,
petitioner’s possession of a prescription drug. CR
at page 68. In _ response, petitioner offered
respondent proof that the Saudi government itself
had issued to petitioner a visa so that he might
re-enter the country, thus rebutting petitioner’s
claim that there was an _ officially-sanctioned
"banishment." See Opinion at page A-9 at n.3; CR
at pages 211, 245. Petitioner also vigorously
contested to respondent the alleged impropriety of
his possession of a prescription drug. Petitioner’s
appeal of his termination was to no avail.
By amended complaint dated January 3, 1983,
petitioner complained against respondent in the
United States District Court for the Central District
of California, seeking declaratory relief and
damages for breach of contract, negligence,
misrepresentation, defamation and intentional
infliction of emotional distress.°
Petitioner’s breach of contract claim was
premised on respondent’s decision to terminate
petitioner for cause and deny him any award of
employment benefits. On July 9, 1984 respondent
moved for summary adjudication of said claim
pursuant to Rule 56(d), Fed. R. Civ. P., on the
grounds that petitioner’s termination for cause was
premised upon Captain Hijr’s demand that
respondent turn over petitioner’s passport and
6 The viability solely of petitioner's claim for
damages for breach of contract and negligence are
presently at issue; the discussion will be limited
accordingly.
om
terminate his employ. Respondent’s motion for
summary judgment was granted and a partial
judgment of dismissal was entered by the District
Court on July 31, 1984.
Petitioner’s negligence claim arose out of his
collision with the truck and was based on his
allegation that the truck was driven at the time of
the collision by an employee of respondent. In
support of his allegations petitioner presented to
the District Court his own declaration, in which he
attested that officers of the project operated by .
respondent had stated to him that petitioner’s
co-worker was operating the vehicle and was
responsible for the collision. CR at pages 445-46.
The District Court deemed petitioner’s factual
showing to be inadmissible hearsay and, after
granting respondent’s June 24, 1985 motion for
summary adjudication of said claim, entered a
final judgment of dismissal on July 17, 1985.
The Ninth Circuit affirmed the District Court’s
judgment of dismissal. In addressing petitioner’s
breach of contract claim, the court concluded that
because of Captain Hijr’s order to terminate
petitioner, respondent was entitled to discharge
petitioner for cause. The court’s ruling was
premised on the declarations of three former
employees of respondent who attested to the
import of Captain Hijr’s order. CR at pages
97-106. Though the Court found that the stated
reasons for Captain Hijr’s order, as set forth in the
declarations, were inadmissible as hearsay (Opinion
at page A-10), the Court ruled that the very fact
that the order was communicated was certainly not
hearsay and, rather, conclusive evidence of the
justifiability of petitioner’s termination for cause.
oii.
In this respect the Court, in its affirmance of
the summary dismissal below, did not deem as a
triable issue of fact the question whether Captain
Hijr did speak for the Saudi government.
Moreover, the Court did not question, or deem
questionable, the role of the Saudi government
(assuming, arguendo, the words of Captain Hijr
were the words of the government) in_ its
commercial dealings with respondent, and _ its
attendant commercial obligation to petitioner. Nor
did the Court question the finality of Captain
Hijr’s order of banishment, despite petitioner’s
presentation of evidence (acknowledged by the
Court; see Opinion at page A-9, n.3) that the
Saudi government itself had re-issued petitioner a
visa for his re-entry into the country.
The Ninth Circuit ultimately refused to
premise respondent’s decision to terminate
petitioner upon the "act of state" doctrine so fully
briefed by both parties in the District Court and
on appeal. The Court, however, deemed
respondent’s justification for terminating petitioner
for cause to be a function of Captain Hijr’s order.
This apparent self-contradiction first appears at
footnote 5 of the Court’s Opinion:
The parties devote considerable
attention to the question whether the
banishment order constitutes an “act
of state" and whether the district
court should have considered disputed
evidence about the accuracy of the
Saudi government’s determination.
These matters are completely
irrelevant to this dispute. Even if
Henein had conclusively established
that the Saudi government’s orders
-9-
were incorrect and that he was not in
possession of illegal drugs, SAPL
would still have been bound by the
Saudi decree and entitied to discharge
Henein under the express terms of
the employment contract.
The apparent contradiction is sharpened by the
-Court’s subsequent statement, despite its earlier
ruling that the reasons for Captain Hijr’s
banishment and termination order were
inadmissible, that
SAPL presented uncontroverted
evidence that Henein’ had _ been
banished for violation of the local
laws and customs of Saudi Arabia
and that he was discharged for this
reason. The act of the Saudi
government thus constitutes a proper
reason for termination under the
contract.
Opinion at A-14. The Court thus found
respondent to be justified in terminating petitioner
for cause.
The Ninth Circuit thereupon addressed the
issue whether, by virtue of respondent’s
misrepresentations in its informational pamphlets,
respondent should be estopped from relying on the
orders of Captain Hijr. The court rejected the
estoppel claim, concluding that petitioner presented
no evidence that respondent "knew or should have
known that _~__séiits representations concerning
prescription drugs were untrue." Opinion at A-14.
The Ninth Circuit thereafter affirmed the
District Court’s dismissal of petitioner’s negligence
-10-
claim, agreeing with the District Court’s ruling that
petitioner’s declaration was inadmissible as hearsay,
notwithstanding petitioner’s claim that the
statements of officers of the project were
admissible as admissions of respondent.
REASONS FOR GRANTING THE WRIT
I.
Introduction
This case provides the Court with the
opportunity to delimit the “act of state" doctrine
and thereby define the courts’ constitutional power
to legally question foreign acts of state. This
Court’s decision in Banco Nacional de Cuba y.
Sabbatino, 376 U.S. 398, 423 (1964), sets forth the
constitutional import of the questions presented
herein as follows:
The act of state doctrine does
ay have "constitutional"
underpinnings. It arises out of the
basic relationships between branches
of government in a_ system of
separation of powers. It concerns the
competency of dissimilar institutions
to make and implement particular
kinds of decisions in the area of
international relations.
atte
II
The Ninth Circuit’s Flawed Application Of The
Act Of State Doctrine Only Intensifies The
Confusion And Unresolved Problems
Surrounding The Doctrine’s Applicability To
Commercial Dealings.
Amidst the ever-increasing involvement of
foreign states in the field of commerce, the
paucity of decisions of this Court concerning the
judicial deference to be accorded the commercial
dealings of those foreign states has caused
confusion and conflict among the circuits.
Application of the “act of state" doctrine, ue
principal vehicle by which courts grant deference
to foreign acts of state, is the paradigm of this
confusion.
{I]f the Foreign Sovereign Immunities
Act is a tangled web of statutory
ambiguities, the act of state doctrine
is an airy castle.
Callejo v. Bancomer, S.A., 764 F.2d 1101, 1113
(Sth Cir. 1985).
In the case at bar, the Ninth Circuit applied
the act of state doctrine expansively, while
disclaiming any intent to apply the doctrine at all:
it refused to permit inquiry into whether a private
employer breached its contractual obligations to its
employee, because the employer claimed to be
acting under orders from a commercial agency of a
foreign state.
In its traditional formulation the act of state
doctrine precludes the courts of this country “from
inquiring into the validity of the public acts of a
recognized foreign sovereign power committed
12.
within its own territory." Banco Nacional de Cuba
vy. Sabbatino, 376 U.S. 398, 401 (1964). The classic
statement of the doctrine is found in Underhill y.
Hernandez, 168 U.S. 250, 252 (1897):
Every sovereign state is bound
to respect the independence of every
Other sovereign state, and the courts
of one country will not sit in
judgment on the acts of the
government of another done within
its own territory. Redress of
grievances by reason of such acts
must be obtained through the means
open to be availed of by sovereign
powers as between themselves.
The courts grant deference to the Executive Branch
in their adherence to the belief that notions of
comity among nations require that the Executive
have exclusive power over the conduct of relations
with other sovereign powers.
[T]he sovereign power of the nation
is alone competent to avenge wrongs
committed by a sovereign ... the
questions to which such wrongs give
birth are rather questions of policy
than of law ... they are for
diplomatic, rather than legal
discussion, are of great weight, and
merit serious attention.
The Schooner Exchange v. M'Faddon, 7 Cranch
- 116, 146, 3 L.Ed. 287 (1812), quoted in First
National City Bank v. Banco Nacional de Cuba, 406
U.S. 759, 762 (1972).
The act of state doctrine is not, however,
inflexible. Because the doctrine’s "continuing
atte
vitality depends on its capacity to reflect the
proper distribution of functions between the
judicial and political branches of the Government
on matters bearing upon foreign affairs,”
Sabbatino, 376 US. at 428, its application and
effect must remain a function of the degree to
which our foreign relations are implicated by any
act of a foreign state. Jd. The act of state
doctrine has therefore been restricted to those
governmental acts in which the sovereign’s interest
qua sovereign is involved. See Mann, The
Sacrosanctity of the Foreign Act of State, 59 L.Q.
Rev. 42 (1943).
The need for a restrictive application of the
act of state doctrine was recognized by this Court
in Alfred Dunhill of London, Inc. v. Republic of
Cuba, 425 U.S. 682 (1976), where a_ plurality
refused to extend the doctrine to include the
repudiation of a purely commercial obligation owed
by a foreign state or by one of its commercial
instrumentalities.
[W]e are in no sense compelled to
recognize as an act of state the
purely commercial conduct of foreign
governments in order to avoid
embarrassing conflicts with the
Executive Branch. On the contrary
. we fear that embarrassment and
conflict would more likely ensue if
we were to require that’ the
repudiation of a foreign government's
debts arising from its operation of a
purely commercial business be
recognized as an act of state and
immunized from question in our
courts.
ee
-14-
Alfred Dunhill, 425 U.S. at 697-98.
Because this “commercial exception" to the act
of state doctrine only commanded a plurality of
this Court, however, circuit courts have operated
in a cloud of confusion in their application of the
doctrine. Conflict among the circuits has been the
unfortunate result.’ It was the potential for this
very conflict which, for fear of the resulting
disunity in the field of foreign affairs, led this
Court to establish the act of state doctrine.
Because the degree of foreign government
involvement which must be present prior to
invocation of the act of state doctrine varies with
the particular facts and circumstances of each case,
7 The Second Circuit, in Hunt v. Mobil Oil Corp.,
550 F.2d 68 (2nd Cir. 1977), cert denied, 424 U.S.
984 (1974), refused to apply the act of state
doctrine where the sovereign was sued upon its
commercial activity. See i
F i i ia, 647 F.2d 300
(2nd Cir. 1981), cert denied, 454 U.S. 1148
(1982)(commercial activity exception applied where
Nigerian government breached cement -purchase
contracts). From the Ninth Circuit there heave issued
conflicting decisions: compere,_e.g., Northrop Corp.
vy. _McDonnett Dougias Corp., 705 F.2d 1030, 1048 n.25
(9th Cir.), cert. denied, 464 U.S. 849 (1983)
(existence of commercial exception), to International
f c r
QPEC, 649 F.2d 1354, 1360 (9th Cir. 1981), cert.
denied, 454 U.S. 1163 (1982) (a presence of sa
commercial component does not create a commercial
activity exception). The Fifth Circuit is also in a
state of complete confusion, having issued
conflicting decisions within its own jurisdiction.
See Callejo v, Bancomer, S.A., 764 F.2d 1101, 1115
n.17 (Sth Cir. 1985) ("The articulation in Dunhill of
@ commercial activity exception to the act of state
doctrine has engendered considerable debate"), and
cases cited therein.
-$4.
Sabbatino, 376 US. at 428, application of the
doctrine requires a case-by-case analysis of the
extent to which the separation of powers concerns
(which are at the heart of the doctrine) are
implicated by the particular governmental action at
issue. Texas Trading & Milling Corp. v. Federal
Republic of Nigeria, 647 F.2d 300, 316 n.38 (2d
Cir. 1981), cert. denied, 454 U.S. 1148 (1982).
In this case the Ninth Circuit’s application of
the act of state doctrine in a commercial setting
was realized by way of summary judgment. The
court’s failure to weigh the considerations which
bear on the applicability of the doctrine will only
intensify the confusion of the courts and add to
the disunity in their application of the doctrine.
Moreover, summary adjudication of the many
factual considerations implicit in a decision to
apply the doctrine in a commercial setting is not
8 Despite the Ninth Circuit's disclaimer of its
application of the act of state doctrine (see
footnote 5 of its Opinion, reprinted in Appendix A at
page A-13; see also Statement Of The Case, supra, at
pegeS ), there can be no doubt that the ccurt did
indeed apply the doctrine; it granted judicial
deference to the Saudi official's termination order
without questioning the order's lawfulness or the
reasons for the order. See footnote 5 of the court's
Opinion, as well as its Opinion at page A-14 (“The
act of the Saudi government .. . constitutes a
proper reason for termination under the contract.")
This is by definition the very import of the act of
state doctrine. In fact, it is an example of the
doctrine's misguided application in a commercial
setting. See discussion, infra.
=
only in and of itself erroneous, ” but will add to
the circuit courts’ conflict over the proper effect
of those considerations as well.
A. The Act Of State Doctrine Must Not
Preclude Adjudication Of The Private
Commercial Consequences Of A Foreign
Act Of State.
Several circuits have held that the act of state
doctrine does not preclude judicial inquiry into the
propriety of a private concern’s commercial
reaction to a foreign act of state.
The act of state doctrine only precludes
judicial inquiry into the legality, validity,
and propriety of the acts and motivations
of foreign sovereigns acting in_ their
governmental roles within their own
boundaries; [footnote omitted] it does not
preclude judicial resolution of ail
commercial consequences stemming from
the occurrences of such public acts.
Arango v. Guzman Travel Advisors Corp., 621 F.2d
1371, 1380-81 (Sth Cir. 1980), cert. denied, 474
U.S. 995 (1985); Allied Bank International v. Banco
Credito Agricola De Cartago, 757 F.2d 516, 521
(2nd Cir. 1985); see Airline Pilots Association,
International, AFL-CIO vy. TACA _ International
Airlines, S.A., 748 F.2d 965, 971 (Sth Cir. 1984),
cert. denied, 471 U.S. 1100 (1985) ("We do not
9 Summary judgment is only proper when there is no
genuine issue as to any material fact. Planet
Insurance v. Mead Reinsurance Corp., 789 F.2d 668,
670 (9th Cir. 1986).
«tts
adjudicate the validity of Article 110, §4 of the
Salvadoran Constitution, nor do we comment on
El Salvador’s regulatory practices and _ policies
involving public service companies. That is not
our prerogative. We do adjudicate, however, the
legality of TACA’s response to the governmental
directive it received.")
In the case at bar the Ninth Circuit, by way of
summary judgment, insulated respondent from
honoring its contractual obligations to petitioner.
Accepting at face value the order of Captain Hijr
that respondent banish and terminate petitioner, yet
without addressing the cause for said order, the
Ninth Circuit deemed that as a matter of law
respondent was justified in terminating petitioner
for cause, thus disallowing the payment of
employment benefits to which petitioner would
otherwise have been entitled.
The Ninth Circuit, by its decision below, drew
the bounds of deference to be accorded an act of
state (assuming, arguendo, an act of state did
occur) much too broadly, insulating a private
concern from any and all commercial obligations in
any way related to the foreign act itself. The
purported act of state was an order of termination;
the commercial consequence was a termination for
cause and a summary denial of employment
benefits under private contract. If the Ninth
Circuit’s decision is allowed to stand, the potential
effects of the act of state doctrine may far exceed
the bounds already drawn to serve the doctrine’s
intent.
=
B. The Demands Of An Officer Of A
Commercial Agency Of A Foreign State
Cannot As A Matter Of Law Command
The Deference Accorded An Act Of A
Foreign State.
This Court has long recognized that, prior to
according any deference to an act of state, there
must necessarily be an analysis of whether in fact
an act of state did occur. First National City Bank
vy. Banco Para El Comercio Exterior De Cuba, 462
US. 611, 623-627 (1983). The goal of such
analysis is to discern whether in fact the voice that
would be accorded deference is indeed that of the
sovereign, and not merely that of an individual
who speaks only for himself. Furthermore, and in
light of the question whether a foreign state’s
commercial acts are to be accorded any deference
at all, there must be some analysis of whether the
foreign authority is governmental as opposed to
purely commercial. Alfred Dunhill, 425 U.S. at
693-94.
If there is to be a commercial exception to the
act of state doctrine, then the act of a foreign
commercial authority as such is to be accorded no
deference at all. In The "Gul Djemal,” 264 U.S. 90
(1924), quoted in Alfred Dunhill, 425 U.S. at 693
n.9, this Court questioned whether the master of a
steamship owned and operated for commercial
purposes by the Turkish Government would be
accorded the sovereign immunity commanded by
the foreign government itself. In holding that the
officer of the Turkish Navy would not be granted
such status because his representation of his
government as master of a commercial ship did not
in and of itself suggest that he was entitled to
-19-
represent the sovereign in other capacities, this
Court wrote as follows:
"The Anne, 3 Wheat. 435, 4 L.Ed.
428, reaffirmed by The Sao Vicente, 260
ia tae, oe oe. 15, 67 L.Ed. 179, is
enough to show that the immunity couid
not have been successfully set up by a
duly recognized consul, representative of
his sovereign in commercial matters, in
the ordinary course of his official duties,
and there seems no adequate reason to
presume that the master of the Gul
Djemal had any greater authority in
respect thereto. Although an officer of
the Turkish Navy, he was performing no
naval or military duty, and was serving
upon a vessel not functioning in naval o-
military capacity but engaged in commerce
. re He was not shown to have any
authority to represent his sovereign other
than can be inferred from his position as
eee Ska
The "Gul Djemal,” 264 U.S. at 95.
In the case at bar the Ninth Circuit summarily
held that the order of Captain Hijr, the Security
Coordinator for the Royal Commission, the
commercial agency of the Saudi government which
worked jointly with respondent in the construction
of an industrial city, was automatically to be
2.
accorded the deference of an act of state. !0 By
way of its summary adjudication the Ninth Circuit
deferred to the order of an officer of a
commercial agency and __ thereby insulated
respondent, a private and related commercial
association, from honoring its contractual
obligations to petitioner. Based solely on the order
of Captain Hijr, respondent was permitted to
terminate petitioner for cause, thereby disallowing
the payment to petitioner of employment benefits
to which he would otherwise have been entitled.
The Ninth Circuit failed to question the
sovereign authority of Captain Hijr, though it was
obligated to do so. Assuming the Court had met
this obligation, however, and had the Court
concluded, after consideration of the relevant facts,
that Captain Hijr did speak for the Saudi
government, then it was incumbent upon the Court
to weigh the circumstances of the Saudi
involvement and determine whether said
involvement was of a political or commercial
nature. The answer to these questions would have
determined the applicability of the act of state
doctrine. However, the Ninth Circuit, by its
summary judgment, asked none of these questions.
Its failure to do so will only intensify the
confusion and conflict among the circuits.
10 It was only Captain Hijr's oral order itself,
introduced by way of the declarations of three of
respondent's former employees, which evidenced the
purported act of state. All other allegations were
excluded as inadmissible hearsay. See Opinion at
page A-10.
tie
~C. The Act Of State Doctrine Does Not
Preclude Inquiry Into The Motivations For
An Alleged Decision Of A Foreign State
In Order to Determine Whether The
Decision Was Commercial Or A Genuine
Act Of State.
Though it is well established that the act of
state doctrine precludes inquiry into the validity of
the public acts which a _ recognized foreign
sovereign power committed within its own
territory, Sabbatino, 376 U.S. at 401, the circuit
courts are in great disagreement whether the
doctrine precludes inquiry into the motivations for
a purported public act.
While, for example, the Ninth Circuit has ruled
that the act of state doctrine prohibits inquiry into
the motivations for, as well as the validity of, acts
of foreign states, DeRoburt v. Gannett Co., 733
F.2d 701, 703 (9th Cir. 1984), cert. denied, 469
U.S. 1159 (1985) (due to an unwillingness to
question the nobility of a foreign nation’s
motivations and thereby cause the political offense
which the act of state doctrine particularly seeks to
avoid), the Fifth Circuit has held that inquiry into
the motivations of a foreign government is not as
prohibited by the doctrine as is an inquiry into the
11 Compare, e.g., Hunt v. Mobil Oil Corp., 550 F.2d
68 (2d Cir.), cert. denied, 434 U.S. 984 (1977)
Cinquiry into a sovereign's motivations is
precluded), with Compania de Gas de Nuevo Laredo,
S.A. vy. Entex, Inc., 686 F.2d 322, 325 (Sth Cir.
1982), cert. denied, 460 U.S. 1041 (1983), and
Williams v. Curtiss-Wright Corp., 694 F.2d 300, 304
n> €3re Cif. 1982) (analysis of sovereign's
motivations not precluded).
* ~23-
validity of the foreign act itself. Compania De
Gas De Nuevo Laredo, S.A. v. Entex, Inc., 686 F.2d
322, 325 (Sth Cir. 1982), cert. denied, 460 US.
1041 (1983). The Compania court reasoned that an
analysis of the motivations of a foreign
government is necessary to determine the public
nature of the foreign act: whether in fact the
sovereign acted as a sovereign or whether its
actions were of a commercial nature and therefore
not privy to the insulation otherwise accorded an
act of state. Compania, 686 F.2d at 326.
It stands to reason that in order to serve the
interests of the act of state doctrine, rather than to
permit the doctrine to become a shield by which
foreign states or officials of foreign states may
insulate themselves from liability for any misdeeds
they commit in their private commercial dealings,
the motivations behind a particular act in question
must be subject to judicial scrutiny. Only in this
manner can the commercial or public nature of the
foreign act be determined, and the deference (or
lack thereof) to be accorded it be effectuated.!2
12 Even the Ninth Circuit has, in another case,
addressed the importance which an analysis of a
sovereign's motivation may have relative to the
degree of judicial scrutiny which would necessarily
follow:
While we do not wish to impugn or
question the nobility of a foreign nation's
motivation, we are necessarily interested in
the depth and nature of its interest. The
Restatement (Second) of Foreign Relations
Law of the United States §41 (1965) makes an
important distinction on this basis’ in
limiting the deference of American courts:
[A] court in the United States ...
will refrain from examining the
(Foetnote continued on next page.)
x
In the case at bar the Ninth Circuit made no
inquiry whatsoever into the motives behind Captain
Hijr’s order that petitioner be terminated. !
Whether or not Captain Hijr spoke for the Saudi
government is in this context of no consequence;
even the government itself, by and through the
Royal Commission, may have acted in a
commercial capacity when it ordered that petitioner
be terminated from his employment pursuant to
private contract. By virtue of its summary
judgment, however, the Ninth Circuit permitted no
inquiry into the motives of Captain Hijr, or the
private, commercial interests he served thereby.
(Footnote continued from previous page.)
validity of an act of a foreign state
by which that state has exercised its
jurisdiction to give effect to its
public interests. [Emphasis added.)
Timberlane Lumber Co. v. Bank of America, N.T. &
S.A., 549 F.2d 597, 607 (9th Cir. 1976), cert.
denied, 472 U.S. 1032 (1985). The private,
commercial interests of a foreign state are not
immune from the adjudicative power of the courts.
13 In fact, no evidence was even admitted as to the
reasons for Captain Hijr's order. Though in the
declarations of three former employees of respondent
the reasons given were the violation of Saudi law and
custom, this evidence was excluded as inadmissible
hearsay. Astonishingly, however, the court deemed
respondent justified in terminating petitioner for
cause by virtue of Captain Hijr's order that
petitioner had violated Saudi law and custom. This
self-contradiction was unfortunately determinative.
+s
D. An Interlocutory Act Of A Foreign State
Should Not Be Accorded Deference
Pursuant To The Act Of State Doctrine.
It seems quite clear that application of the act
of state doctrine to an unconsummated act of a
foreign state would amount to a premature exercise
of judicial deference.
It is generally recognized that a conclusive
foreign act must be completed before the
doctrine is invoked. The doctrine has
never been applied when it was uncertain
whether a foreign expropriation has been
effected. See, e.g., Restatement (Second)
of the Foreign Relations Law of the
United States §43 comment a (1965)
("(A]jct of state doctrine .. .becomes
applicable only when and if the act has
been ‘fully executed." (emphasis added)).
Until it is shown that an officially
sanctioned physical seizure has in fact
occurred, or that the legal processes of
expropriation have been terminated by the
foreign government, partial governmental
action does not necessarily result in an act
of state.”
Ramirez de Arellano v. Weinberger, 745 F.2d 1500,
1535 n.154 (D.C. Cir. 1984), vacated on other
grounds, 471 U.S. 1113 (1985).
Prior to the finality of the foreign act, its very
nature and import cannot be determined, thereby
precluding any analysis of the applicability of the
doctrine itself.
The prematurity, or actual improvidence of
granting effect to the act of state doctrine prior to
-25-
the final realization of the foreign act, could be
disastrous should the foreign government ultimately
repudiate the previously unquestioned act. See
Dominicus Americana Bohio v. Gulf & Western
Industries, Inc., 473 F.Supp. 680, 690 (S.D.N.Y.
1979), citing Sabbatino, 376 U.S. at 432 ("an act
that would otherwise be immune from _ judicial
inquiry may lose its privileged status if the
government repudiates it.")
In the case at bar the Ninth Circuit summarily
accorded finality to Captain Hijr’s order and _ its
attendant commercial consequence, despite the
Saudi government’s own apparent unwillingness to
grant said order the same degree of finality.
Petitioner presented evidence that Captain Hijr’s
order that petitioner be banished had not been
endorsed by the government -- the Saudi
government had in fact issued petitioner a visa for
his re-entry into the kingdom. Despite the Ninth
Circuit’s awareness of this fact, it mevertheless
applied the act of state doctrine -- by way of
summary judgment -- to Captain Hijr’s order.
ITI
An Intent To Deceive Is Not A Necessary Element
Of The Doctrine Of Equitable Estoppel.
It is undisputed that respondent represented in
its informational pamphlets that petitioner could
14 The court's characterization of the evidence of
Henein's right of re-entry as "collateral" is
unsupported and incomprehensible. See the Ninth
a Opinion, reprinted as Appendix A, at page
A-F, is Ba
«MM.
Carry a prescription drug into Saudi Arabia as long
as he brought the prescription itself. Allegedly,
however, petitioner was ultimately terminated for
possession of a prescription drug while in Saudi
Arabia, notwithstanding his possession of a written
prescription.
Respondent was able to terminate petitioner for
cause based on petitioner’s reliance on respondent’s
written representation, which representation (of
what to do and not do in Saudi Arabia) was
supposed to prevent the very result it caused.
The Ninth Circuit addressed the issue of
estoppel -- whether respondent should be "estopped
from relying on the act of banishment to justify
the termination because [respondent] advised
[petitioner] that the conduct resulting in the
banishment order ... was permissible" (Opinion
at page A-14, infra) -- and then summarily
dismissed it, based on petitioner’s failure to present
evidence that respondent knew or should have
known that its representations were untrue.
The Ninth Circuit applied an incorrect standard
in its summary adjudication of the estoppel issue.
An actual intent to deceive is unnecessary to prove
estoppel; rather, negligence or silence in the face
of a duty to speak may suffice. Lix v. Edwards,
82 Cal.App.3d 573, 580, 147 Cal.Rptr. 294 (1978).
An objective view of respondent’s inaccurate
representation, in light of the context in which it
was made, clearly justifies application of the
principle that respondent should have been
estopped from relying on the purported act of
banishment. Surely an employer, which made to
its employee an untrue written representation that
.the employee is permitted to bring a prescription
drug into a foreign country, cannot later terminate
x. =
that employee for cause due to the employee’s
justifiable reliance on the written representation.
There is certainly a triable issue of fact, contrary
to the Ninth Circuit’s summary adjudication,
relative to the negligence of respondent in
proffering its false representation.
IV
The Ninth Circuit Committed Reversible Error
By Excluding As Inadmissible Hearsay The
Admissions Of An Agent Of The Project
Operated By Respondent, Which Admissions
Raised A Triable Issue Of Fact In Petitioner’s
Negligence Claim.
The Ninth Circuit held that the evidence
presented by petitioner which linked respondent to
the driver and the truck involved in the accident
-- evidence which formed the basis of petitioner's
negligence claim -- was properly excluded by the
district court as inadmissible hearsay.!5 The
court misapplied the Federal Rules of Evidence.
Petitioner submitted to the court his declaration
in which he attested that, while in the hospital, he
was visited by officers of the project operated by
15 As to respondent's possessory interest in the
truck, it is important to note that in this regard
summary judgment was issued by virtue of the
“uncontroverted" evidence submitted by respondent
which disclaimed the possibility of respondent's
ownership interest in the truck. No evidence,
however, disproved the possibility that respondent
had, for example, leased, rented or merely used the
truck. See Opinion at page A-15. Summary judgment
was therefore inappropriate.
ieee
-28-
respondent (Captain Hijr included) who informed
him that the driver of the truck was a co-worker
of petitioner.
The statement of the officer of respondent is
not inadmissible hearsay, as supported by Rule
801(d2D), Fed. R. Evid., which provides in
relevant part as follows:
A statement is not hearsay if --
ee
The statement is offered against a
party and is ... a statement by his agent
Or servant concerning a matter within the
scope of his agency or employment, made
during the existence of the relationship
Interestingly, the very same _ evidentiary
grounds upon which the Court excluded the
statement of Captain Hijr informing petitioner of
his co-worker’s role in the accident are _ those
evidentiary grounds upon which the Court admitted
Captain Hijr’s “order” vis-a-vis the act of state.
Compare the ourt’s opinion, feprinted as
Appendix A, at page A-10 and A-16.
Respondent’s officer’s statements regarding the
accident were properly before the Court, thereby
raising a triable issue of fact as to respondent’s
liability for the accident and precluding summary
adjudication of said issue.
The Ninth Circuit’s inconsistent application of
the Federal Rules of Evidence must not be
allowed. A published opinion cannot be permitted
to stand as authority for conflicting propositions.
-29-
CONCLUSION
If the Court of Appeals’ decision is allowed to
stand, private concerns which engage in commerce
with foreign states will be insulated from
adjudication of their failure to honor their
commercial obligations to third parties. The effect
will be to expand the act of state doctrine beyond
the bounds drawn to serve its concern for an
appropriate separation of powers, and instead to
transform the doctrine into a sword with which
commercial entities, both private and governmental,
will defeat both their own commitments and the
expectations of those with whom they do business.
That the decision below was reached by
summary adjudication only intensifies the troubling
consequences soon to follow. Apart from adding
to the confusion and conflict already existing
among the circuits, the decision will shatter the
well established guidance drawn by the Court that
the act of state doctrine is only to be imposed
upon a very careful and precise analysis of the
facts, in order to assure its proper application.
The erroneous application by the Court of
Appeals of the Federal Rules of Evidence, as well
as the doctrine of equitable estoppel, will, if
-30-
allowed to stand, establish precedent for inconsis-
tent and misguided future rulings.
Respectfully submitted,
DAVID O. CARSON
345 North Maple Drive, Suite 200
Beverly Hills, California 90210
(213) 278-1111
Counsel for Petitioner
Of Counsel:
ALEJANDRO N. MAYORKAS
COOPER, EPSTEIN & HUREWITZ
A Professional Corporation
345 North Maple Drive, Suite 200
Beverly Hills, California 90210
(213) 278-1111
November 5, 1987
APPENDIX A
A-1l
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GAMAL S. HENEIN, No. 85-6128
D.C. No.
CV 82-2330-WPG
Plaintiff-Appellant,
Vv.
SAUDI ARABIAN PARSONS
LIMITED, an unincorporated
association,
OPINION
)
)
)
)
)
)
)
)
)
)
Defendant-Appellee. )
)
Argued and Submitted
August 6, 1986 Pasadena, California
Filed June 5, 1987
Before: Thomas Tang and Melvin Brunetti, Circuit
Judges, and Bruce R. Thompson,* District Judge
Opinion by Judge Tang
Appeal from the United States District Court
for the Central District of California
William P. Gray, District Judge, Presiding
SUMMARY
Evidence/Contracts
Appeal from a grant of summary judgment to
the defendants in a case arising out of the
termination of an employment contract.
*Honorable Bruce R. Thompson, Senior United
States District Judge for the District of Nevada,
sitting by designation.
A-2
Appellant Gamal Henein (Henein) entered into
an employment contract with Saudi Arabian
Parsons Limited (SAPL) under which Henein was
to perform services as an engineer in Saudi
Arabia. The agreement provided that SAPL could
terminate the agreement for cause, including illegal
use of drugs, failure to comply with the local
customs or laws of Saudi Arabia and conduct
detrimental to SAPL. Informational pamphlets
advised that he should carry the prescription if he
brought any prescription medicine with him into
the country. After working for a time in Saudi
Arabia, Henein was involved in an accident when
the automobile he was driving collided with a
truck. He was hospitalized in Saudi Arabia, and
then transported to Los Angeles to continue
hospitalization. During the investigation of the
automobile accident, Saudi police discovered
restricted drugs in Henein’s briefcase, ordered he
be removed from Saudi Arabia and placed his
name on a list of those prohibited from entering
the country. The date on which the employment
agreement was due to expire, Henein received a
telegram from SAPL terminating his employment
for cause. This deprived him of certain benefits
to which he would otherwise have been entitled.
Henein filed a complaint against SAPL seeking
declaratory relief and damages for breach of
contract, negligence, defamation, intentional
infliction of emotional distress and
misrepresentation. The district court granted
SAPL’s motion for summary judgment.
[1] The district court held that SAPL was
entitled to discharge Henein because the Saudi
government ordered his termination and banished
him from the country. [2] Henein challenges as
A-3
hearsay the admissibility of three declarations of
SAPL officials to establish that the Saudi
government ordered him out of the country, [3]
but a declaration by a supervisor that he was told
by a government official to discharge Henein was
not hearsay. The reason given for Henein’s
discharge (possession of illegal drugs) may be
inadmissible hearsay if offered to prove possession
of drugs, but the fact that SAPL was ordered to
discharge Henein was not hearsay, but direct
testimony. [4] The same principle applies to a
declaration introducing internal Saudi government
memoranda [5] and declarations stating that the
Saudi police had ordered Henein to leave the
country. [6] Since the memoranda were not
offered as official records, Henein’s argument that
they are inadmissible because they were not
properly authenticated as official foreign records is
inapplicable. [7] Although the translations of the
memoranda from Arabic to English were not
properly authenticated, counsel for SAPL presented
certifications in court. There was no error in
consideration of the translations. [8] Henein could
not create a genuine issue of material fact based
on his evidentiary challenges to the fact of his
banishment even if the challenges were well
founded. Summary judgment was appropriate. [9]
The contract expressly provides that Henein may
be discharged for violation of local laws and
uncontroverted evidence that Henein had been
banished for violation of local laws and customs of
Saudi Arabia. The act of the Saudi government
thus constitutes a proper reason for termination
under the contract. [10] If Henein’s argument is
construed as an argument of estoppel it still fails
because ~-he failed to produce any evidence that
SAPL knew or should have known that any
A-4
of its representations were untrue. [11] Summary
judgment was appropriate on the claims for breach
of contract and declaratory relief.
[12] Summary judgment was appropriate for
Henein’s claim for negligence based on his collision
with a truck he alleges was owned by SAPL
because the only evidence linking SAPL to the
driver of the truck was Henein’s account of a
conversation with Saudi officials and this account
represented inadmissible hearsay. [13] Similarly,
Henein failed to establish any genuine issue of
material fact concerning his charges’. of
misrepresentation, sO summary judgment was
appropriate on this issue.
[14] Henein’s claim for intentional infliction of
emotional distress is time barred because the
statute was not tolled during the time in which
Henein was incapacitated by his accident. The
statute allows a tolling if the plaintiff is insane
when the cause of action accrues, but Henein’s
cause of action accrued before the accident, and
mere physical disability does not constitute insanity
under the statute. Affirmed.
COUNSEL
Michael W. Atkin, Los Angeles, California, for the
plaintiff-appellant.
William Foutz, Los Angeles, California, for the
defendant-appellee.
fale Sty. hoe a
A-5
OPINION
TANG, Circuit Judge:
Gamal S. Henein appeals a grant of summary
judgment to Saudi Arabia Parsons’ Limited
("“SAPL") on various claims arising out of the
termination of Henein’s employment with SAPL
and out of an automobile accident that occurred
during the course of that employment. The
district court dismissed Henein’s declaratory
judgment, breach of contract and defamation!
claims, finding his termination justified because
the Saudi government ordered the termination and
banished Henein from the country for violating its
drug laws. The district court dismissed Henein’s
claims for negligence and misrepresentation because
of the lack of admissible evidence, and dismissed
his claim for intentional infliction of emotional
distress as barred by the applicable statute of
limitations. The district court found in the
alternative that Henein’s claims were barred by his
failure to comply with certain grievance procedures
provided in the employment contract. We affirm.
0 I. BACKGROUND
Henein is a citizen of the United States of
America, residing in the Central District of
California. SAPL is an unincorporated association
1 The dismissal of the defamation claim is not
appealed.
q
A-6
organized under the laws of the Kingdom of Saudi
Afabia. Since 1977, SAPL_ has_ performed
construction management services for the Royal
Commission for Jubail and Yanbu, an agency of
the Saudi Arabian Government.
On April 28, 1980, Henein and SAPL entered
into a written employment agreement under which
Henein was to perform services as a “principal civil
engineer" in Saudi Arabia from May 22, 1980 until
June 30, 1981. Section 12.1.A of this agreement
provided that SAPL could terminate the agreement
for cause, including "illegal use of drugs,
failure to comply with the local customs or laws of
Saudi Arabia, ... and conduct ... detrimental to
SAPL ..." Section 27 of the agreement provided
that it constituted "... Employee’s_ entire
agreement with SAPL and that no promises or
understandings have been made other than those
stated ... [and that] this Agreement shall be
subject to modification only by written instrument
signed by both SAPL and the Employee."
Prior to executing the contract, Henein was
given two informational pamphlets by SAPL.
These materials apprised Henein of what to expect
in Saudi Arabia, contained information about what
he might wish to bring, and advised him that he
should carry the prescription if he brought any
prescription medicine with him into the country.
On May 14, 1981, Henein was involved in an
accident when the automobile he was driving
collided with a truck. Henein was hospitalized in
Saudi Arabia for extensive injuries. Approximately
Pt eon Ady om
A-7
two weeks after the accident, Henein was
transported to Los Angeles where he continued his
hospitalization.
During the investigation of the automobile
accident, Saudi police discovered restricted drugs
in Henein’s briefcase in his automobile. The Saudi
officials ordered that Henein be removed from
Saudi Arabia, his employment terminated, his
passport turned over to Saudi authorities, and his
name placed on the list of those prohibited from
entering Saudi Arabia.
On June 30, 1981, the date on which the
employment agreement was due to expire, Henein
received a telegram from SAPIL _ that his
employment was terminated for cause. The
termination for cause deprived Henein of certain
benefits to which he would otherwise have been
entitled.
On May 13, 1982, Henein filed a complaint
against SAPL in district court seeking declaratory
relief and damages for breach of contract,
negligence, defamation, intentional infliction of
emotional distress, and misrepresentation. The
complaint was amended on January 3, 1983. SAPL
appeared to contest service and moved to dismiss
for lack of in personam jurisdiction. The district
court denied the motion.2 On July 9, 1984, the
district court granted summary judgment in favor
2 SAPL does not contest the district court's
finding of in personam jurisdiction in this appeal.
'A-8
of SAPL on Henein’s declaratory judgment, breach
of contract, and defamation claims. On June 24,
1985, the district court granted summary judgment
in favor of SAPL on _ Henein’s negligence,
intentional infliction of emotional distress, and
misrepresentation claims. The district court also
denied Henein’s motion for reconsideration of its
earlier summary judgment ruling. Final judgment
was entered on July 16, 1985. Henein timely
appealed on July 19, 1985.
II. QUESTIONS PRESENTED
A. Did the district court err in finding Henein’s
termination to be justified under the terms of
his employment contract?
B. Did the district court err in finding that there
was no admissible evidence to support Henein’s
negligence and misrepresentation claims?
C. Did the district court err in dismissing
Henein’s claim for intentional infliction of
emotional distress?
Il. ANALYSIS
This court reviews the grant of summary
judgment de novo. Planet Insurance v. Mead
Reinsurance Corp., 789 F.2d 668, 670 (9th Cir.
1986). “Summary judgment is proper when there
is RO genuine issue as to any material fact and the
moving party is entitled to judgment as a matter
of law." Jd. California law controls the
substantive issues in this diversity case.
eee
A-9
alo Cone ag
A. Did the district court err in finding Henein’s
termination to be justified under the terms of
his employment contract?
[1] The district court held that SAPL was
entitled to discharge Henein, pursuant to the
unambiguous terms of his employment contract,
because the Saudi Arabian government ordered his
termination and banished him from the country
following the discovery of restricted drugs in his
automobile. Henein argues: (1) that SAPL failed
to introduce admissible evidence of the Saudi
government’s banishment order; and (2) that SAPL
should not be permitted to rely on the banishment
order to justify the termination.
1. Evidence of the Act of Banishment
SAPL relied on the declarations of three of its
supervisory employees, Ronald L’Hommedieu,
David Holleman, and John Mewha, to establish
that Saudi Arabia ordered SAPL to terminate
Henein’s employment and banished Henein from
the country. ‘SAPL also relied on Henein’s tacit
admission that he had been banished in the form
of Henein’s request that SAPL intercede on his
behalf with the Saudi government. Henein
produced no evidence disputing these facts;3
instead, Henein challenges the admissibility of
3 Henein did submit evidence tending to show that
he has not been barred from reentering Saudi Arabia,
a collateral matter raised in the declarations. —
A-10
SAPL’s evidence. We find sufficient admissible
evidence of the Saudi government’s acts to support
summary judgment in this case.
[2] Henein first challenges the admissiblity of
the declarations as hearsay. Under Fed. R. Evid.
801, hearsay "is a statement, other than one made
by the declarant while testifying at trial or
hearing, offered in evidence to prove the truth of
the matter asserted." Hearsay is inadmissible in a
court of law unless it comes under one of the
exceptions set forth in Fed. R. Evid. 803. Haddad
v. Lockheed California Corp., 720 F.2d 1454, 1456
(9th Cir. 1983). "The hearsay rule does not
operate to render inadmissible every statement
repeated by a witness as made to another person.
It does not exclude evidence offered to prove the
fact that a statement was made, rather than the
truth [of the statement]." United States v. Anfield,
539 F.2d 674, 678 (9th Cir. 1976).
[3] The L’Hommedieu declaration states that a
Saudi official with the _ title of Security
Coordinator, Captain Yousif Hijr, told
L’Hommedieu to discharge Henein and demanded
that SAPL surrender Henein’s passport. This is not
hearsay. The reason given by Hijr, Henein’s
possession of illegal drugs, may be inadmissible
hearsay if offered to prove that Henein did in fact
possess such drugs, but the fact that SAPL was
ordered by a Saudi official to discharge Henein
and to insure that Henein leaves the country is
certainly not hearsay -- it is direct testimony
about an act performed by the Saudi government.
eels (es i eh ile ea
A-11
{4] The Holleman_ declaration introduces
internal Saudi government memoranda given to
Holleman by Hijr. The same principle applies.
The contents of the memoranda may or may not be
truthful and are inadmissible if offered for the
truth of the matters stated therein, but the fact of
their receipt is admissible to establish that SAPL
believed that the Saudi government had ordered
Henein’s termination and expulsion from the
country. See Jones v. Los Angeles Community
College District, 702 F.2d 203, 205 (9th Cir. 1983).
[5] The Mewha declarations state that Mewha
was informed that the Saudi police had ordered
Henein to leave the country because Henein
possessed restricted drugs, that after the
termination SAPL made inquiries of the Saudi
government on Henein’s behalf, and that the reason
for Henein’s discharge was the order of the Saudi
government. A_ letter Mewha received from a
Saudi official verifying that Henein would not be
permitted to return is attached to one of the
declarations. Unlike L’Hommedieu, Mewha does
not testify based on personal knowledge to any
conduct by the Saudi government prior to the
termination. Mewha’s declarations are admissible,
however, to show the reason for the termination,
that Henein had requested SAPL’s assistance in
convincing the Saudi government to reconsider its
determination, and that Henein would not be
permitted to return to Saudi Arabia.
[6] Henein next argues that the memoranda are
inadmissible because they were not. properly
authenticated as official foreign records under
Fed. R. Civ. P. 44(a) and Fed. R. Evid. 901 and
A-12
902(3). The memoranda were not offered as
official records, and the rules cited by Henein are
simply inapplicable.
[7] Henein further argues that the translations
of the memoranda from Arabic to English were
not properly authenticated. There is no signature
of the translator on either document, nor does
either document contain a statement that the
translation is accurate and complete. Henein is
correct that the translations as presented in SAPL’s
moving papers were thus technically improper, but
the transcript of oral argument on the motion
reveals that counsel for SAPI presented
certifications of the translations to the court at that
time.* At oral argument on the motion, Henein’s
counsel further conceded that the substance of the
translations was correct, although he did dispute
the meanings of selected words. While we do not
approve of the slipshod presentation by SAPL’s
counsel, we can find no error in the district court’s
consolidation of the translations.
{8] Finally, we note that Henein could not
create a genuine issue of material fact based on his
evidentiary challenges to the fact of his banishment
even if such challenges were well founded. The
Mewha supplemental declaration explains that, after
the termination, Henein sought SAPL’s help in
overturning the Saudi government’s detcrmination
that he had possessed illegal drugs. Henein’s own
4 The certifications themselves are not in the
record.
A-13
undisputed conduct thus establishes that there is no
real dispute whether the Saudi government had
decided that Henein had violated its laws and
customs. Summary judgment was appropriate.
2. Whether SAPL should have been permitted
to rely on the banishment order to justify Henein’s
termination
[9] Henein argues that SAPL should not have
been permitted to rely on the Saudi government’s
banishment order to justify his termination because
SAPL had advised him that it was legal to possess
drugs in Saudi Arabia under a valid prescription.
Henein argues, without citation to authority, the
SAPL’s advice is binding “and that the act of state
doctrine may not be imposed as an excuse for
non-payment of defendant’s monetary obligations
under the employment contract."
Henein is incorrect. Section 12.1.A of the
contract expressly provides that Henein may be
5 The parties devote considerable attention to the
question whether the banishment order constitutes an
“act of state” and whether the district court should
have considered disputed evidence about the accuracy
of the Saudi government's determination. These
| matters are completely irrelevant to this dispute.
Even if Henein had conclusively established that the
Saudi government's orders were incorrect and that he
was not in possession of illegal drugs, SAPL would
still have been bound by the Saudi decree and
entitled to discharge Henein under the express terms
of the employment contract.
ee
A-14
discharged for violation of the local laws and
customs of Saudi Arabia. SAPL presented
uncontroverted evidence that Henein had _ been
banished for violation of the local laws and
customs of Saudi Arabia and that he was
discharged for this reason. The act of the Saudi
government thus constitutes a proper reason for
termination under the contract.
[10] At best, although not framed in this
manner or properly pleaded, Henein’s argument
might be construed as a contention that SAPL
should be estopped from relying on the act of
banishment to justify the termination because
SAPL advised him that the conduct resulting in the
banishment order possession of restricted drugs was
permissible. SAPL’s only representations
concerning drugs appear to be two lines in the
informational pamphlets given to Henein advising
him that he could bring prescription medicine into
Saudi Arabia and that he should also carry the
prescription itself. This is plainly insufficient to
establish an estoppel as Henein presented no
evidence that SAPL knew or should héeve known
that its representations concerning prescription
drugs were untrue. See In re Lisa R., 13 Cal.3d
636, 645, 119 Cal.Rptr. 475, 480-81, cert. denied,
421 U.S. 1014 (1975); Cal. Evid. Code § 623.
“nt bso indi inal deans
PNG SiS aid ETL eR rT
Pages
A-15
[11] Summary judgment was appropriate on the
claims for breach of contract and declaratory
relief 6
B. Did the district court err in finding no
admissible evidence to support Henein’s
negligence and mispresentation claims?
1. Negligence
Henein’s claim for negligence arises from his
collision. with a truck he alleges was owned by
SAPL and driven by a SAPL employee. The
district court found no evidence to support the
claim because Henein could not connect either the
driver or the truck to SAPL. On appeal, Henein
argues that summary judgment was impermissible
because the district court improperly weighed
conflicting evidence.
SAPL offered uncontroverted evidence that it
was not the owner of the truck. SAPL presented
the declarations of Fred Taeger, who had arrived
at the scene shortly after the accident, that the
truck was a large Mercedes tandem-rear-axles
6 Henein also contends that the district court
erred in failing to reconsider its written order
dismissing the entire breach of contract claim,
rather than simply adjudicating whether SAPL had the
right to terminate Henein as the court had indicated
in its oral ruling on the motion. All of Henein's
contract claims depend on a determination that he was
terminated without cause. The motion for
reconsideration was properly denied.
A-16
truck designed for hauling aggregates such as sand
or gravel. Taeger further stated that the truck did
not bear SAPL’s logo on its side. SAPL also
offered the declaration of Karl Talpai, acting
manager of transportation at SAPL, that SAPL
owned no truck larger than a pick-up truck in its
entire fleet. When deposed, Henein had also stated
that he collided with a "very big” truck of the type
used for hauling aggregates.
{12] Henein’s only evidence linking SAPL to
the driver and the truck was his own account of a
conversation he had with Saudi government
officials while he was in the hospital in Saudi
Arabia. Henein states that he was visited by Saudi
officials who asked him to forgive the driver of
the other vehicle and ‘ho told him that the other
driver was one of his “co-workers.” The district
court found that Henein’s declaration was
“complete” hearsay because the declarants were not
in court and it was offered to prove as true a
connection between SAPL and the driver. This
ruling was correct. Fed. R. Evid. 801, 803. There
was no improper weighing of the _ evidence;
Henein’s only evidence was properly excluded.
Summary judgment was appropriate.
2. Misrepresentation
In his complaint, Henein alleged that SAPL
had made fraudulent’ representations to him
regarding (1) his housing in Saudi Arabia; (2) the
nature of his duties; and (3) working conditions in
Saudi Arabia. Under California law, the elements
of a cause of action for intentional
misrepresentation are:
A-17
(1) A promise made regarding a material
fact without any intention of performing
it; (2) the existence of the intent at the
time of making the promise; (3) the
promise was made with intent to deceive
Or with intent to induce the party to
whom it was made to enter into the
transaction; (4) the promise was relied on
by the party to whom it was made; (5) the
party making the promise did _ not
perform; (6) the party to whom the
promise was made was injured.
Muraoka v. Budget Rent-A-Car, Inc., 160
Cal.App.3d 107, 119, 206 Cal.Rptr. 476, 482
(1984). The district court dismissed Henein’s
misrepresentation claims because he failed to
introduce any admissible evidence of a prima facie
case of misrepresentation.
Henein argues that the district court
improperly excluded evidence of promises made
outside of the employment contract, some of which
were oral and most of which were contained in the
pamphlets given to Henein by SAPL. Section 27
of the employment agreement between SAPL and
Henein states that the contract constitutes "...
Employee’s entire agreement with SAPL and that
no promises or understandings have been made
other than those stated ... [and that] this
agreement shall be subject to modification only by
written instrument signed by both SAPL and the
Employee." The employment agreement is clear on
its face and the district court properly excluded
Henein’s testimony concerning promises extrinsic to
the fully integrated contract under the parol
bse
A-18
evidence rule.. See Telco Leasing, Inc. vy.
Transwestern Title Co., 630 F.2d 691, 693 (9th Cir.
1980); Sullivan v. Massachusetts Mutual Life
Insurance Co., 611 F.2d 261, 263-65 (9th Cir. 1979).
[13] In any event, Henein failed to establish
any genuine issue of material fact -oncerning other
elements of a claim for misrepresentation. No
evidence was submitted on SAPL’s intent to
deceive, nor did Henein establish that he relied on
the representations. Summary judgment was
appropriate.
F. Did the _ district court err in dismissing
Henein’s claim for intentional infliction of
emotional distress?
Henein claims SAPL intentionally inflicted
emotional distress upon him by: (1) wrongfully
threatening him with termination of his
employment contract; (2) materially and unilaterally
changing the nature of his employment agreement;
(3) forcing him to live with a person known to be
violating the laws of Saudi Arabia; and (4)
restricting his freedom of travel by wrongfully
detaining his passport. All of these alleged acts
occurred before the automobile accident and more
than one year prior to the filing of the complaint.
The district court held the claim time barred under
section 340(3) of the California Code of Civil
Procedure.
[14] On appeal, Henein argues that the statute
was tolled under section 352(a) of the California
Code of Civil Procedure because he was
incapacitated by the accident. Section 352(a)
provides: "If a person entitled to bring an action,
A-19
mentioned in Chapter 3 of this title, be, at the
time the cause of action accrued ... insane ...
the time of such disability is not a part of the
time limit for commencement of the action."
Henein does not allege that he was incapacitated at
the time the cause of action accrued; i.e., at the
time SAPL is alleged to have done the acts
constituting intentional infliction of emotional
distress. See Larsson v. Cedars of Lebanon
Hospital, 97 Cal.App.2d 704, 218 P.2d 604, 606
(1950). Moreover, “mere physical disability or
nervous shock following an accident" do not
constitute insanity under the statute. Baker vy.
Beech Aircraft Corp., 39 Cal.App.3d 315, 322, 114
Cal.Rptr. 171, 176 (1974). The statute therefore
was not tolled. Henein’s claim for intentional
infliction of emotional distress is time barred.’
CONCLUSION
The judgment of the district court is AFFIRMED.
7 In view of the foregoing, we do not reach the
question whether Henein's claims are independently
barred by his failure to comply with the grievance
procedures provided in the employment contract.
APPENDIX B
B-1
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GAMAL S. HENEIN, ) No. 85-6128
)
Plaintiff f-Appellant, > DA. @ CV
) 82-2330-WPG
v. )
)
SAUDI ARABIAN ) ORDER |
PARSONS LIMITED, an ) DENYING |
unincorporated association, ) PETITION FOR
Defendant-Appellee. )
Before: TANG and BRUNETTI, Circuit Judges
and B. THOMPSON,,* District Judge.
The panel has considered the appellant’s
Petition for Rehearing. The Petition for Rehearing
is denied.
. Honorable Bruce R. Thompson, Senior United
States District Judge for the District of Nevada,
sitting by designation
APPENDIX C
a
~~ OH
i ‘
5 ona x
'¢é
df
‘ea
5°
§
bi
Bs
FRED G. BENNETT
SCOTT E. WOOD
WILLIAM C. FOUTZ
GIBSON, DUNN & CRUTCHER
333 South Grand Avenue
Los Angeles, California 90071
(213) 229-7000
Attorneys for Defendant
Saudi Arabian Parsons Limited
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
GAMAL S. HENEIN, CIVIL NO. 82-2330-WPG
)
)
Plaintiff, )
) SUMMARY JUDGMENT
v. ) OF DISMISSAL IN
) FAVOR OF DEFENDANT
SAUDI ARABIAN )
PARSONS LIMITED, )
)
)
)
an unincorporated association,
SAUDI ARABIAN
PARSONS LIMITED
{PROPOZED] WP
) Date: June 24, 1985
) Time: 10:00 a.m.
Place: Courtroom of Hon.
William P. Gray
Defendant.
WHEREA{ dDefendant Saudi Arabian Parsons
Limited has moved the Court for summary judgment; WF
and
C-2 ~
WHEREAS/ fIhe Court has considered all of
the evidence, briefs, oral argument and other matters of
which judicial notice was requested submitted on behalf
of all parties; and
WHEREAS, pPlaintiff’s action is based on an
employment agreement of August 28, 1980 and upon
alleged negligence and other alleged tortious conduct of
defendant in connection with plaintiff's employment; dfd
WHEREAS fIhere is no evidence to support
plaintiff's negligence claim dg A madfrér Of Jdy; the only
evidence before this Court indicates that that claim is
wholly without merit and subject to summary dismissal
at this time; dfid
WHEREAS, pPlaintiff’s claims for intentional
infliction of emotional distress jg are barred by the
applicable statute of limitations, California Code of
Civil Procedure §340(3); dfid
WHEREAS, pPlaintiff’s claims for intentional
infliction of emotional distress jg are additionally barred
by plaintiff's failure to allege the type of outrageous
behavior which the courts of California have required
in order to permit recovery for emotional distress; and
WHEREA3/ pPlaintiffs claim for misrepre-
sentation is without merit because plaintiff's
employment contract constitutes an integrated written
document, and this claim, based on alleged oral -
representations antedating the signing of that document,
is barred by the Parole Evidence Rule; and
WHEREAS pPlaintiff has been unable to offer
any evidence establishing the elements of a prima facie
claim for misrepresentation under California law, and
this claim is subject to summary dismissal upon that
ground; and
WHEREA3{ ¢Each of plaintiff's claims is
additionally and independently barred by the failure of
plaintiff to comply with the grievance notice procedures
explicitly required by his employment contract, such
WPG
WPG
WPGE
WPG
C-3 °
compliance being a condition precedent to pursuit of
any legal remedy by plaintiff based on claims arising
out of his employment with SAPL or the termination
thereof; and
WHEREA fThis Court, having found each of WPC
plaintiff’s claims to be without legal or factual merit;
NOW, THEREFORE, this action is dismissed
with prejudice as against defendant Saudi Arabian
Parsons Limited.
DATED: June 25,1985
Willi P. Gr
Hon. William P. Gray
United States District Judge
APPENDIX D
D-1
No. A-273
GAMAL S. HENEIN,
Applicant,
v.
SAUDI ARABIAN PARSONS LIMITED
ORDER EXTENDING TIME TO FILE PETITION
FOR WRIT OF CERTIORARI
UPON CONSIDERATION of the
application of counsel for the applicant,
IT IS ORDERED that the time for filing
a petition for a writ of certiorari in the
above-entitled cause be, and the same is hereby,
extended to and including _ November 5_, 1987.
?
r nnor
Associate Justice of the Supreme
Court of the United States
Dated this 6th
day of October, 1987.
APPENDIX E
E-1
EXCERPTS FROM EMPLOYMENT AGREEMENT
ARTICLE 1,_ BASIC DATA
A. POINT OF ORIGIN/COUNTRY OF ORIGIN:
__Los Angeles, CA./U.S.A.__
B. CLASSIFICATION:
Principal Civil Engi
C. EMPLOYMENT PERIOD*:
18 months
D. EFFECTIVE DATE OF THIS AGREEMENT:
May 20, 1980
E. COMPLETION DATE?:
Nov, 20, 1981
* See particularly Sections 1, 12, and 25.6 of
Attachnent A.
Initialed by:
Employee /s/ GH
SAPL /s/ CWR
E-2
SECTION 12. TERMINATION
12.1 r ignati
A. SAPL, at its discretion, may at any time
terminate Employee’s employment
hereunder for cause, such as breach of
this Employment Agreement;
incompetence; intoxication; illegal use of
drugs; insubordiation; any violation of any
rule or regulation that may be established
from time to time by SAPL or by the
Client for the Employee’s conduct of work
or the conduct of business; failure to
comply with the local customs or laws of
Saudi Arabia; or for any failure of
Employee to perform any agreement, duty
or obligation of Employee under this
Agreement; or conduct of any dependent
or guest of Employee in the country of
the Employment Location which is
detrimental to SAPL, the Client, the work,
or the project; or for any other cause of
similar nature authorized by applicable
law. If such termination is subsequently
determined by SAPL or _ appropriate
judicial authority not to be termination
for cause, then termination shall be
deemed to be a termination for other
lawful cause under Section 12.2.
Initialed by:
Employee /s/ GH
SAPL /s/ CWR
E-3
If Employee’s Employment hereunder is
terminated for cause by APL _ as
authorized in Section 12.1.A, or if
Employee resigns, Employee shall be paid
Monthly Salary and Cost of Living
Differential to date of termination and for
such unused accrued vacation to which
Employee may then be otherwise entitled
hereunder, and shall be given return air
tickets for Employee and Authorized
Dependents to Point of Origin (or to
Employee’s choice of destination outside
of Saudi Arabia at no greater cost), but
shall not be deemed to have achieved
Satisfactory Completion of Employment
nor be entitled to any severance allowance
or bonus or to any return relocation or
shipping allowances, per diem, travel
expenses or other allowances payable upon
termination of this employment, or
otherwise payable hereunder. If such
resignation or termination occurs before
Employee has completed a minimum of 6
months of Employment, Employee shall be
responsible for providing at Employee’s
sole expense, return transportation for
Empleyee and Employee’s Authorized
Dependents, including their personal and
household effects, to Point of Origin. If,
under the above circumstances, SAPL, for
any reason, including but not limited to
Initialed by:
Employee /s/ GH
SAPL /s/ CWR
12.2
E-4
applicable law, must pay for Employee’s
or Employee’s Authorized Dependents’
return transportation, such payment shall
be considered a _ salary advance to
Employee, and Employee agrees to be
liable to SAPL for such costs. Any such
amount shall be withheld from final
settlement and any remaining excess shall
be repaid as provided in Section 26.
wf - isf:
Completion of Employment
SAPL, in its discretion (i.e., for any other
lawful reason not described in Section
12.1.A above), at any time, may terminate
Employee’s employment hereunder by not
less than 30 days written notice. For
purposes of this Section, Employee agrees
that “other lawful reason" shall include:
total or partial completion of SAPL’s work
under the Prime Contract or total or
partial completion of the work thereunder
which Employee was hired to perform;
total or partial suspension by the Client or
SAPL of SAPL’s work under the Prime
Contract or of the work which Employee
was hired hereunder to perform; reduction
in force directed by the Client; or, at any
time during the Probationary Period by 15
Initialed by:
Employee /s/ GH
SAPL /s/ CWR
E-5
days Notice, if in the judgment of SAPL
or the Client, for reasons other than
described in Section 12.1.A above,
Employee is found not _ sufficiently
qualified or experienced for the work for
which Employee was hired or is deemed
Otherwise not suitable for employment on
the Yanbu Project.
If during the Period of Employment, the
Client should direct that there be a
revision of salary, benefits or allowances
herein provided, except as provided in
Section 5, to be payable to Employee
which is detrimental to Employee, the
Employee may notify SAPL that unless
Employee and SAPL shall mutually agree
in respect of any such revision within 14
days after notification to Employee of any
such intended change, Employee will elect
to terminate employment hereunder. In
the event Employee elects to terminate,
this agreement shall be deemed terminated
by mutual agreement.
In the event of termination under Section
12.2, Employee shall be deemed to have
achieved Satisfactory Completion of
Employment.
Initialed by:
Employee /s/ GH
SAPL /s/ CWR
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.