Opposition Brief — Shekoyan v. Sibley International, Inc.

532, 559, 602, 634, 1865)) Nor was Shekoyan a “US.

diplomat.” As the district court observed, the copy of a

“Service Card” he submitted does not come close to estab-

lishing that he worked for the State Department or was an

official representative and envoy of the United States

government. (App. 890 (Rec. 2169 n.2)) Indeed, Sibley’s

contract with USAID expressly provided USAID “shall not

exercise any supervision or control over the contractor’s

employees performing services under this contract. Such

employees shall not be accountable to the government, but

solely the contractor, who in turn is responsible to the

Government.” (Rec. 518 (emphasis added))

As the job required, Shekoyan moved to the Republic

of Georgia, where he lived and worked until October 31,

1999, when Sibley’s 1997 Task Order for the GEAR project

ended. (App. 184, App.Ex. 267-68 (Rec. 53b, 237, 448-49,

470-71, 612)) Shekoyan received all of the compensation to

which he was entitled under his employment agreement.

(App. 267-69 (Rec. 448-50, 470-72))

As of November 1, 1999, USAID and Sibley entered

into a new contract for further work in Georgia. (App. 268-

69 (Rec. 449-50, 617-34)) This new work differed in focus

and purpose. (Compare Rec. 621-24 (1999 contract tasks/

work requirements) and 546-55 (1997 contract tasks/work

requirements)) Accordingly, the staffing requirements

under the new contract differed substantially, and a

* Shekoyan also cited to the Vienna Convention [App. 417-26 (Rec

1683-92)], but made no showing the United States (the purported

“sending state”) gave due notification to the Republic of Georgia (the

purported “receiving state”) and then “accredited” the “nead of mission”

and “assigniled] any member of the diplomatic staff” -— as required

under the Convention |App.Ex. 418 (Rec. 1684)].

number of positions that existed under the 1997 contract

did not exist under the 1999 contract, including the

Training Advisor position Shekoyan had filled. (App. 269

(Rec. 450) and compare Rec. 629 (1999 contract) and 559

(1997- contract staffing)) There were only two long-term

contract positions available under the new contract, for

Project Manager and an Accountant II. (Rec. 629) Both

required extensive experience and a CPA [Rec. 469, 559],

which Shekoyan admittedly did not have [App.Ex. 77, 136-

37 (Rec. 856, 948-49), 1362-63; compare App.Ex. 187-88

(Rec. 999-1000) (Reynolds’ qualifications)}.

II. NEARLY ONE YEAR AFTER HIS EMPLOYMENT

ENDS, PETITIONER FILES SUIT FOR “WRONG-

FUL TERMINATION”; THE DISTRICT COURT

VARIOUSLY DISMISSES AND GRANTS SUM-

MARY JUDGMENT ON HIS ARRAY OF CLAIMS

Nearly one year after his employment with Sibley

ended, Shekoyan filed this lawsuit on October 20, 2000,

claiming he was discriminated against on the basis of his

Armenian ethnicity and wrongfully discharged in violation

of Title VII, the “whistle-blower” provisions of the False

Claims Act, and the District of Columbia Human Rights

Act, and wronged by other conduct under a variety of

common law theories. (App. 1-18)

Sibley moved to dismiss Shekoyan’s Title VII claim

on the ground the statute’s extraterritorial application

extends — as it states — only to United States citizens,

and Shekoyan did not allege, and could not allege, that

he was a United States citizen when he worked for Sibley

in the Republic of Georgia. (App. 46-48) Sibley also

moved t.. dismiss his False Claims Act claim on the

ground ne had not adequately alleged all the requisite

6

elements {[App. 48-51], and to dismiss his local and com-

mon law claims on the ground that, in the absence of any

viable federal claim, the district court lacked supplemental

jurisdiction [App. 51].

-Shekoyan filed extensive opposition. (App. 53-91) He

admitted he was not “a citizen of the United States” when

he worked for Sibley in the Republic of Georgia [App. 3,

53], but argued Sibley had essentially classified him in its

contract as a “United States national” and “nationals”

should be covered extraterritorially under Title VII [App.

59-78]. He also argued he had sufficiently alleged a claim

under the False Claims Act and asked for leave to amend.

(App. 78-84)

In a published memorandum decision filed August 18,

2002 (217 F. Supp. 2d at 59), the district court dismissed

Shekoyan’s Title VII claim [id. at 64-69], but allowed him

to file an amended complaint augmenting his False Claims

Act allegations [id. at 74-75]. Accordingly, the court also

retained jurisdiction over his District of Columbia and

common law claims [id. at 75-76]. On September 2, 2002,

Shekoyan filed a first amended complaint. (App. 135A-59)

Sibley answered, denied Shekoyan’s claims of wrongdoing

and asserted a counterclaim for the value of GEAR prop-

erty that had not been accounted for during his employ-

ment. (App. 196-208)

Following discovery, Sibley moved for summary

judgment on Shekoyan’s remaining claims. (App. 223-270

(Rec. 401-640, 452-640)) With respect to his False Claims

Act claim, Sibley demonstrated there was no evidence

raising a triable issue that Shekoyan had engaged in

“protected activity” or that he had been discriminated

against because of such activity. (App. 240-50) Not only

was there no evidence Shekoyan had undertaken to expose

any fraud by Sibley in connection with its contract with

USAID, but he categorically denied in his deposition that

he had ever believed there was any fraud: “I have never

concluded there was corruption. I thought there are some

issues that need to be kind of addressed or corrected or

fixed or I don’t know, worked out, but I did not conclude

that there was corruption.” (Rec. 596) Thus, even accord-

ing to Shekoyan, the most he had done was raise internal

concerns about some operational matters so Sibley per-

sonnel could take a look at them and modify or change

_them if appropriate. (Rec. 594-96)

Shekoyan filed extensive opposition, much of it di-

rected to his claim under District of Columbia law that he

had been harassed on the basis of his Armenian ethnicity.

(App. 278-390, App.Ex. 1-386) According to Shekoyan, in

the spring of 1999 he had temporarily filled in as Project

Manager, and in mid-June 1999, was replaced by Jack

Reynolds. (App.Ex. 14-15) He claimed Reynolds belittled

and harassed him, creating a “hostile work environment.”

(App.Ex. 15-16) He also claimed he complained about

Reynolds to Sibley personnel in Washington, D.C., but was

told to try to work out the problems locally. (App.Ex. 16)

He further claimed he told Sibley personnel in Washing-

ton, D.C., about concerns he had about how the GEAR

project was being run, but was told not to “make too much

noise.” (App.Ex. 110) Approximately three months after

Reynolds took over as Project Manager, and one month

before the 1997 Task Order expired, Shekoyan was told he

would not receive a new employment contract when his

current contract ended. (Rec. 612)

Shekoyan purported to substantiate his claims with

an unnotorized affidavit by his attorney recounting the

supposed substance of telephone “interviews” with two

former Sibley employees [App.Ex. 281-89], a “draft”

declaration one of the former employees supposedly was

going to sign [App.Ex. 225-32], and exhibits and testimony

that did not support the propositions for which they were

cited [Rec. 1345-59]. Sibley moved to strike the improper

submissions and recover its costs under Fed. R. Civ. P.

56(g). (App. 501-33 (Rec. 1326-74)) It also submitted

signed and sworn declarations by the former Sibley em-

ployees. (Rec. 1361-71) Both stated Shekoyan’s lawyer had

made serious misstatements about her conversations with

them and that they had not, and could not, substantiate

any of Shekoyan’s claims of harassment and discrimina-

tion. (Jd.) Indeed, one of the declarants, David Bose, who

had been Sibley’s chief financial officer, felt pressured by

Shekoyan’s lawyer and told her several times he had no

recollection of Shekoyan ever complaining about discrimi-

natory treatment while he was employed by Sibley. (Rec.

1369) Bose was confident he would have remembered any

such complaints since he, too, is a person of color. (Jd.")

The other declarant, Gary Vanderhoof, who had been

Sibley’s vice-president and to whom Shekoyan claimed to

have reported concerns about the GEAR program, stated

all he could recall was an incident between Reynolds and

Shekoyan just days prior to the expiration of Shekoyan’s

employment contract. (Rec. 1364) Reynolds had demanded

to know abovt the handling of two televisions and a VCR,

and reported Shekoyan had been insubordinate about

responding. (/d.; see also Rec. 464-65, 476, 797, 1128-29)

* Without telling Bose, Shekoyan’s lawyer had taped their conver-

sation. (Rec. 1457 n.2) When Shekoyan finally produced a copy of the

tape to Sibley, there were a number of “gaps,” and despite Shekoyan’s

lawyer's protests to the contrary, even the extant portions of the tape

confirmed that her recitation of the conversation was incorrect in

numerous respects. (Rec. 1457 n.2, 1459-64)

Shekoyan called Vanderhoof and also sent an e-mail,

disputing that he had been insubordinate and claiming he

had timely and thoroughly responded. (Rec. 1128-32) As a

result of this incident, Reynolds told Shekoyan to leave the

office and not return for the few remaining days of his

contract. (Rec. 466-67, 470-71, 476) In short, what the

admissible evidence from the former Sibley employees and

current employees showed was that it was not until the

finai month of Shekoyan’s employment, after he had been

told he would not receive a new employment contract, that

he began complaining of any unfair treatment by Rey-

nolds.

The district court, in a detailed, 15-page order,

granted in part Sibley’s motion to strike Shekoyan’s

improper submissions and denied Shekoyan’s counter-Rule

11 motion (Rec. 1978-2031) for sanctions. (App. 1152-68)

In the meantime, Shekoyan filed a voluminous motion

to “amend” the district court’s prior memorandum opinion

clismissing his Title VII claim. (App. 598-710, App.Ex. 387-

558, 565-67) In this motion, Shekoyan expounded on his

claim that he was a “United States national” and as such

should have been covered under Title VII. Alternatively, he

argued the court should apply a “center of gravity” stan-

dard and under it, he should be considered to have been

employed “within” the United States. (App. 613-23) In

another order thoroughly discussing the limited extra-

territorial application of the statute, the district court

denied Shekoyan’s motion. (App. 887-95) Shekoyan

promptly filed a motion “to vacate” the court’s order

refusing to amend its Title VII ruling [App. 1010-15],

which the district court denied [App. 1131-32]. He also

filed a 29-page motion “for oral argument,” again taking

issue with the district court’s order denying his motion to

10

“amend” the Title VII ruling [App. 907-1034], which the

court also denied [App. 1149]. Undeterred, Shekoyan next

filed a motion for leave to “file for summary judgment out

of time” [App. 1016-21], based on a 64-page “second sup-

plemental statement of undisputed facts” [App. 1064-127].

Given that the court already had twice extended discovery

[Rec. 372, 380], and nine months had passed since the

extended period had closed and the deadline for filing

dispositive motions had lapsed [Rec. 380], the district

court also denied this motion. (App. 1151-52)

On March 19, 2004, in a second published memoran-

dum opinion (309 F. Supp. 2d at 9), the district court

granted summary judgment for Sibley on Shekoyan’s

“whistle-blower” claim and dismissed his remaining local

and common law claims. (App. 1179-2000) While acknowl-

edging the FCA must be applied broadly to protect em-

ployees who report the misuse of government funds, the

court explained there still must be a reasonable connection

between the employee’s conduct and the Act. Otherwise,

any suggestion made or question raised by an employee

about the implementation of a government funded pro-

gram could give rise to a False Claims Act claim, which is

not the intent or purpose of the statute. (App. 1188-95)

The admissible evidence in this case, including Shekoyan’s

own admissions, established no more than that he had

raised several concerns internally so. Sibley personnel

could look into them. (App. 1991-95) The district court

entered final judgment on March 19, 2004. (App. 1201-02)

The Circuit Court of Appeals affirmed in a published

opinion filed June 3, 2005 [409 F.3d at 414].

+

11

REASONS FOR DENYING THE PETITION

Shekoyan argues the pivotal issue in this case is

whether he was a “U.S. National” when he worked for

Sibley in the Republic of Georgia. Indeed, he claims this

issue is one of overarching importance not just for Title

VII purposes, but also for immigration, tort and criminal

law generally. (Pet. Questions A, B and C) However, as the

district court and Circuit Court of Appeals explained, that

is not the dispositive issue in this case. Rather, the issues

with respect to Shekoyan’s Title VII claim are: (a) whether

Title VII applies extraterritorially only to “a citizen of the

United States” and (b) if Shekoyan was not a citizen of the

United States, whether his employment was “in” the

United States. In answering “yes” to the first question and

“no” to the second, and thus concluding Title VII did not

apply to Shekoyan’s overseas employment, the district

court and Circuit Court of Appeals applied the plain

language of the statute and reached a result consistent

with every other case applying the relevant statutory

language. 409 F.3d at 420-22. Accordingly, there is no need

for this Court to take up these issues.

Shekoyan claims the issue with respect to his “whistle-

blower” claim is whether suspected fraud must be reported

to a government agency, rather than to an employer. (Pet.

Question D) Again, that is not the issue presented by this

case. The lower courts did not hold an employee must

report suspected fraud to a government official. Rather,

they ruled that on this record there was no triable issue of

material fact that Shekoyan engaged in protected activity

-— because he admitted he did not believe any fraud or

corruption had occurred and had brought his concerns to

the attention of Sibley officials so they could look into

them. Again consistent with all prior case law, the district

12

court and Circuit Court of Appeals held this was insuffi-

cient to raise a triable issue under the FCA. 409 F.3d at

422-23.

Finally, Shekoyan claims this Court should revisit the

abuse of discretion standard (Pet. Question E) to deter-

mine whether there must be an “independent analysis” of

the facts and the law in reviewing discretionary rulings —

in other words de novo review. Not only does this make no

sense, but contrary to what Shekoyan suggests, the Circuit

Court of Appeals did not simply rubber stamp the district

court’s discretionary case management rulings refusing to

allow him to file a summary judgment motion nearly one

year after the deadline for dispositive motions, denying his

Rule 11 motion arising out of improper submissions by his

own lawyer, and declining to retain supplemental jurisdic-

tion over non-federal claims.

Il. THE LOWER COURTS’ TITLE VII RULINGS

ARE CONSISTENT WITH THE ESTABLISHED

CASE LAW AND RAISE NO LEGAL ISSUES

THIS COURT NEEDS TO DECIDE

A. Title VII Applies Extraterritorially Only

To United States Citizens, And Petitioner

Was Not A United States Citizen When He

Worked For Respondent In The Republic

Of Georgia

In E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 248-

59 (1991) (Arabian Am. Oil), this Court ruled Title VII

applied only domestically, to American citizens and aliens

working within the United States and specified American

territories. See also Espinoza v. Farah Mfg. Co., 414 U.S.

86, 95 (1973) (holding Title VII applies to aliens working

in the United States). The Court grounded its holding on

13

the longstanding presumption against extraterritorial

application of federal law in the absence of “clearly ex-

pressed” congressional intent to the contrary. 499 U.S. at

248. The Court pointed out Congress both was aware of

the presumption against extraterritorial application of

-federal law and the necessity of speaking definitively on

the issue if it intends extraterritorial reach. For example,

in reaction to cases holding the Age Discrimination in

Employment Act [29 U.S.C. § 630] (“ADEA”) did not apply

extraterritorially, Congress had amended that Act to make

it “‘apply to citizens of the United States employed in

foreign countries by U.S. corporations or their subsidiar-

ies.” 499 U.S. at 258. The Court invited Congress to take

the same action with respect to Title VII. /d.

Congress quickly accepted the invitation and

amended Title VII (and the Americans with Disabilities

Act [42 U.S.C. §§ 12111 et seq.] (““ADA”)) expressly to give

the statute limited extraterritorial reach. 42 U.S.C.

§§ 2000e(f), 2000e-1(c). In fact, Congress used nearly the

same language it had used in amending the ADEA. Thus,

Title VII’s definition of “employee” now provides: “With

respect to employment in a foreign country, such term

[employee] includes an individual who is a citizen of the

United States.” 42 U.S.C. § 2000e(f) (emphasis added);

compare 29 U.S.C. § 630(f) (ADEA) (“The term ‘employee’

includes any individual who is a citizen of the United

States employed by an employer in a workplace in a

foreign country.”).’

* Other provisions of Title VII now cover foreign corporations

“controlled” by an “employer” and provide that any practice prohibited

under Title VII committed by such a “controlled” foreign corporation

“shall be presumed to be engaged in” by the controlling “employer.”

Conversely, the statute does not apply to “foreign operations” of a

(Continued on following page)

14

“Together, these sections establish that Title VII

applies abread only when (1) the employee is a citizen of

the United States and (2) the corporation is controlled by

an American employer.” Jwata v. Stryker Corp., 59 F. Supp.

600, 604 (N.D. Tex. 1999); accord Torrico v. Intl Bus.

Machs. Corp., 213 F. Supp. 2d 390, 399 (S.D.N.Y. 2002)

(“Torrico I”) (“St is clear that [the 1991 amendments to

Title VII] distinguish between U.S. citizens working

abroad for U.S. employers, who are protected from dis-

crimination, and non-U.S. citizens working abroad for

those same employers, who fall outside the statutory

protections against discrimination”); Russell v. Midwest-

Werner & Pfleiderer, Inc., 955 F. Supp. 114, 115 (D. Kan.

1997) (“The general rule is that with respect to foreign

employment, Title VII applies only to American citizens

employed abroad by American companies or their foreign

subsidiaries.”).. Or, stated another way, extraterritorially,

Title VII does not apply to non-citizens. See Mousa uv.

Lauda Air Luftfahrt, A.G., 258 F. Supp. 2d 1329, 1337

(S.D. Fla. 2003) (“If the definition of “employee” [in Title

VII] included all individuals working abroad, there would

be no reason for Congress to expressly include United

“foreign person not controlled by an American employer.” 42 U.S.C.

§ 2000e-1(c). In addition, § 2000e-1(a) continues to state: “This subchap-

ter shall not apply to an employer with respect to the employment of

aliens outside any State... .” Jd. § 2000e-1(a).

_ * See also Reyes-Gaona, 250 F.3d 861, 865 (4th Cir. 2001) (applying

similar ADEA language: Congress amended ADEA “to give it limited

extraterritorial application”); Hu v. Skadden, Arps, Slate, Meagher &

Flom LLP, 76 F. Supp. 2d 476, 477 (S.D.N.Y. 1999) (applying similar

ADEA language: “The extent to whicn the ADEA applies outside of the

United States is clearly limited.”); Denty v. SmithKline Beecham Corp.,

907 F. Supp. 879, 883 (E.D. Pa. 1995) (applying similar ADEA language:

“the ADEA applies abroad only when (1) the employee is an American

citizen and (2) the employer is controlled by an American employer”).

15

States citizens.”); Russell, 955 F. Supp. at 115 (“Unless an

American citizen, a person employed abroad is not an

‘employee’ under Title VII.”).”

As this Court has stated many times, “when the

statute’s language is plain, the sole function of the courts —

at least where the disposition required by the text is not

absurd — is to enforce it according to its terms.” Lamie v.

United States, 540 U.S. 526, 534 (2004). Furthermore,

because the issue here concerns the extraterritorial reach

of a statute, the operative presumption is against such

application unless Congress has “clearly expressed”

otherwise. Arabian Am. Oil, 499 U.S. at 248. It also must

be assumed Congress acted with full knowledge of both

this presumption and its obligation to be explicit when it

intends federal law to apply to conduct within foreign

borders. Jd. at 248, 258-59. Thus, had Congress intended

that Title VII also extend to non-citizens working in

foreign countries, it not only could have said so, but was

required to do so. See Reyes-Gaona, 250 F.3d at 865 (dis-

cussing similar ADEA language).”

* See also Hu, 76 F.Supp. 2d at 478 (applying similar ADEA

language: “the rules for extraterritorial application require a distinction

between citizens and non-citizens of the United States”); O'Loughlin v. The

Pritchard Corp., 972 F. Supp. 1352, 1364 (D. Kan. 1997) (applying similar

ADEA language: “Such specific inclusion |of citizen of the United States]

leads to a reasonable negative inference that Congress intended to

exclude from the definition of ‘employee’ non-citizens of the United

States employed by an employer in a workplace in a foreign country.”).

* In fact, in other statutes, Congress expressly has provided that

they apply both to “citizens” and other classes of residents. E.g., 22

U.S.C. § 2755 and 26 U.S.C. § 7701(aX30)A) (Arms Control Export Act

prohibiting discrimination against any United States person and

defining such individuals as “a citizen or resident of the United

States”); 5 U.S.C. § 5561 (Government Organization and Employees

(Continued on following page)

16

Shekoyan’s insistence that the Court’s decision in

Spector v. Norwegian Cruise Line Ltd., ___ U.S. __, 125

S.Ct. 2169 (2005), has dispensed with the presumption

against extraterritorial application and compels the

extension of Title VII to the foreign employment of non-

citizens, is wholly unfounded. In Spector, the Court ruled

Title III of the ADA generally applies to foreign registered

cruise ships operating in United States waters. As the

Court discussed, for nearly a century, it has held general

statutes presumptively applied to conduct on foreign

registered vessels operating in United States territory,

except when the internal interests of the ship are at stake.

Id. at 2177. Accordingly, while the Court ruled the ADA

generally applied to such ships, it also recognized that

some Title II] accommodation requirements might impli-

cate internal ship interests. It therefore discussed at some

length how courts should determine when internal ship

interests exception would apply. Jd. at 2179-84. The facts

and issues in this case are not remotely similar. Nor did

the Court in Spector even suggest it was overruling the

presumption against extraterritorial application of Title

VII it articulated in Arabian Am. Oil.

Even if the legislative history were considered, it

confirms what is explicit on the face of the statute — that

Congress meant what it said by using the terminology

“citizen of the United States.” While the amendment

Act: defining employees as “an employee in or under an agency who is a

citizen or national of the United States or an alien admitted to the

United States for permanent residence”). Congress chose not to include

such language in Title VII, and it is the obligation of the courts to apply

the statute as written, as all courts applying this provision of Title VII,

including the lower courts here, have done.

17

adding this language to Title VII appears to have been

included in the Civil Rights Act of 1991 without discus-

sion, there is discussion of this language in the legislative

history of the amendment adding it to the ADEA. Since

the language is the same and was added to both statutes

for the same reason - to overcome the presumption

against extraterritorial application - the legislative

history of the amendment to the ADEA provides insight

into the amendment of Title VII. Torrico I, 213 F. Supp. 2d

at 399." This legislative history states in pertinent part:

The purpose behind the amendment is to insure

that the citizens of the United States who are

employed in a foreign workplace by U.S. corpora-

tions or their subsidiaries enjoy the protections of

the [ADEA]. When considering this amendment,

the Committee was cognizant of the well-

established principle of sovereignty, that no na-

tion has the right to impose its labor standards

on another country. That is why the amendment

is carefully worded to apply only to citizens of the

United States who are working for U.S. corpora-

tions or their subsidiaries. It does not apply to

foreign nationals working for such corporations

in a foreign workplace and does not apply to for-

eign companies which are not controlled by U.S.

firms. S. Rep. No. 98-467, at 27-28 (1984), re-

printed in 1984 U.S.C.C.A.N. 2974, 3000-01 (em-

phasis added).

Nevertheless, Shekoyan claims the time has come for

the courts to judicially rewrite Title VII’s explicit “citizen

1 . . . : ' ’ ‘ ,

This is particularly true since the Court expressly invited

Congress to add to Title VII the language it had added to the ADEA.

Arabian Am. Oil, 499 U.S. at 259.

18

of the United States” language to also include “non-citizen,

nationals of the United States.” However, this is not a

request that can properly be made to this Court. See

Arabian Am. Oil, 499 U.S. at 259 (leaving it to Congress to

“calibrate” the extraterritorial reach of Title VII). While

Shekoyan complains applying Title VII according to its

plain terms leaves him and other claimed non-citizen

“nationals” without recourse for allegedly wrongful con-

duct and that American companies employing legal resi-

dents overseas should not be able to “selectively escape”

federal anti-discrimination laws, these are arguments that

must be directed to Congress.”

Shekoyan argues there was no possibility of interfer-

ence with foreign laws in his case because he had moved to

the United States, intended to become a citizen and had

spiritually committed his allegiance to the United States.

However, that may not be the case as to every non-citizen,

legal resident. It is therefore no surprise that in the two

decades since this language was added first to the ADEA,

and then to Title VII and the ADA, Congress has made no

attempt to change it in the face of repeated statements by

the courts that this language means what it says and that

these statues apply extraterritorially only to United States

citizens.

* Indeed, for years the courts — including this Court - held Title

VII and the ADEA did not apply at all to extraterritorial employment

(even that of United States citizens) in the absence of express statutory

language, despite the argument this left aggrieved American citizens

without a remedy. E.g., Arabian Am. Oil, 499 U.S. at 259 (Title VII);

Ralis v. RFE/RL, Inc., 770 F.2d 1121, 1124 (D.C. Cir. 1985) (“For

reasons that are shrouded in mystery, Congress saw fit to limit the

ADEA's compass for many years to the territorial confines of the United

States.”).

19

Furthermore, the record in this case demonstrates the

wisdom of Congress’ choice to draw a clear line so employ-

ees, employers and the courts can readily discern what

rights are provided and obligations imposed under this

law. Shekoyan claims to have been a “United States

national” and thus entitled to invoke Title VII. But he

certainly did not qualify as a “United States national”

under established immigration law. As a leading immigra-

tion law treatise explains:

The term nationals came into use in this country

when the United States acquired territories out-

side its continental limits whose inhabitants

were not at first given full political equality with

citizens. Yet, they were deemed to owe perma-

nent allegiance to the United States and were

entitled to our country’s protection. The term na-

tional was used to include these non-citizens in

the larger group of persons who belonged to the

national community and were not regarded as

aliens. 3 Gordon & Rosenfield, Immigration Law

and Procedure, § 11.3b, at 11-8 (1975); accord

Rabang v. INS, 35 F.3d 1449, 1452 n.5 (9th Cir.

1994)

Consistent with this view, the Immigration and

Nationality Act now defines a “national of the United

States las] (A) a citizen of the United States, or (B) a

person, who, though not a citizen of the United States,

owes permanent allegiance to the United States.” 8 U.S.C.

§ 1101(a)22). The case law, in turn, consistently has

construed subsection (B), pertaining to non-citizens, as

applying to only a very limited category of persons. E.g.,

Oliver v. United States Dep't of Justice, 517 F.2d 426, 427-

28 (2d Cir. 1975) (holding Canadian citizen who was a

twenty-year, permanent resident of the United States and

20

married to an American citizen was not a national because

she had failed to begin the naturalization process and

therefore was deemed to still owe allegiance to her native

country); Carreon-Hernandez v. Levi, 543 F.2d 637, 637-38

(8th Cir. 1976) (holding Mexican citizen who was a twenty-

year resident of the United States, married to an Ameri-

can citizen, and living “an exemplary life, working, paying

taxes, registering for the Selective Service, etc.” was not a

national because he had “never applied for United States

citizenship”); Hughes v. Ashcroft, 255 F.3d 752, 756-57 (9th

Cir. 2001) {holding individual born outside the United

States, or one of its territories, must, at a minimum,

demonstrate that he or she had applied for United States

citizenship in order to be a “national”).

Thus, at a minimum, to qualify as a “United States

national” under immigration law, a non-citizen resident

must have applied to become a United States citizen.

Shekoyan was not even eligible to apply to become a

citizen at the time he worked for Sibley in the Republic of

Georgia because he had not yet lived in the United States

for the requisite five-year period. No immigration law even

remotely suggests legal residency, alone — and that is all

Shekoyan had at the time — suffices to qualify as a “United

States national.”

Therefore, Shekoyan never has relied on immigration

law to support his claimed “U.S. national” status. Rather,

he claims to have been a “United States national” because

Sibley classified him in its contract with USAID as a

“United States expatriate.” He further points out that a

regulation pertaining to the contracting authority of

USAID defines “U.S. national (USN)” as “an individual

who is a U.S. citizen or a non-US. citizen lawfully admit-

ted for permanent residence in the United States.” 48

21

C.F.R. 702.170-16. These contracting provisions, pertain-

ing to wage and procurement issues [App. 481-87, 523,

559, 602, 634, 1865], had no bearing on Shekoyan’s or any

other employee’s immigration status. In any case, that

Shekoyan must resort to a contract provision and a regula-

tion having nothing to do with immigration law to support

his claim that he was a “United States national,” demon-

strates the peril of going down the road he has urged the

courts to-trod. The lower courts correctly declined to do

14

so.

B. Petitioner Was Not Working “In” The

United States When He Worked For Re-

spondent In The Republic Of Georgia

Relying on the Court’s holding in Espinoza, 414 USS.

at 95, that Title VII applies to aliens employed in the

United States, Shekoyan alternatively argues Title VII

applied because he worked “within” the United States. In

this regard, he claims he was hired in the United States,

complained to Sibley personnel located in the United

States about Reynold’s alleged misconduct in the Republic

of Georgia, and decisions about his employment status

were made and/or approved by Sibley personnel located in

the United States. There is no dispute, however, that

” Thus, while Shekoyan repeatedly claims Sibley “admitted” he

was a “United States national,” it never made any such admission as to

his immigration status and agreed only that he was classified as a

“United States expatriate” in its contract with USAID |Rec. 481-55] and

a “U.S. National” under USAID's acquisition regulations |[App.Ex. 333].

(‘See also Rec. 977, 1849 n.3)

As discussed, supra at 4, the lower courts also correctly rejected

Shekovan’s claim he was a “U.S. diplomat” and therefore should be

deemed to have been working on “US. soil.”

22

Shekoyan’s job was in the Republic of Georgia, and he

lived in and went to work every day in that Eastern

European country.

Again, the case law on the locale of employment for

purposes of the extraterritorial application of Title VII is

well established, as reflected by the lower courts’ decisions

here. Generally, the focus is on the location of the em-

ployee’s workstation — the place where he or she reports to

work on a regular basis. Pfeiffer v. Wm. Wrigley Jr. Co.,

755 F.2d 554, 555, 559 (7th Cir. 1985) (executive hired in

the United States but assigned for extended period of time

overseas was employed extraterritorially).” Accordingly,

the courts uniformly have rejected the same kinds of

arguments Shekoyan makes based on peripheral connec-

tions with the United States. E.g., Hu, 76 F. Supp. 2d at

477-78 (fact plaintiff conducted his job search in the

United States and international law firm made hiring

decision in the United States did not alter fact plaintiff

applied for job located in Hong Kong); O'Loughlin, 972

F. Supp. at 1357, 1366 (fact plaintiff worked initially in

United States, was assigned to and then returned from an

extraterritorial position, did not bring his extended over-

seas employment within statute); Wolf, 617 F. Supp. at

861-63 (occasional business trips to United States did not

mean plaintiff’s employment was in two locales, and

“plaintiff's allegation that he was supervised and con-

trolled by top management of the defendants based in the

'® See also Denty, 109 F.2d at 150 (locale of job under ADEA is place

where regular job duties are performed); Wolf v. J.J. Case Co., 617

F. Supp. 858, 861 (E.D. Wis. 1985) (“the key factor” in determining the

extraterritorial applicability of the ADEA “is the employee's ‘relevant

work station’ ”).

23

United States is not of any legal significance so long as the

plaintiff performed his work abroad”).

Nor did the lower courts improperly overlook Torrico

I, 213 F. Supp. 2d at 390, as Shekoyan claims. Not only

did the Torrico I Court explain the case before it involved

an unusual set of circumstances |id. at 401], but it

subsequently contrasted those unusual circumstances

with Shekoyan’s more run-of-the-mill circumstances.

Torrico v. Int'l Bus. Machs., Inc., 319 F. Supp. 2d 390, 405

(S.D.N.Y. 2004) (“Torrico IT’) (Shekoyan “is not materially

different” from the other cases employing the workstation

approach).

16

In Torrico, the plaintiff worked for his American employer for six

years, and his employment agreement expressly stated international

assignments were temporary and that, upon return, a domestic division

of the company would arrange for his subsequent domestic position. /d.

at 393. When he was temporarily assigned to Chile, his job duties

remained exactly the same, he reported directly to a domestic division

and made regular business trips to New York. Jd. The court contrasted

this with other cases in which the emplovees were “hired to work

exclusively (or almost exclusively) in foreign workplaces.” Jd. at 401,

405. Given the circumstances, the Torrico ] Court used what it called a

“center of gravity” analysis and concluded the plaintiff had alleged

sufficient facts to avoid a motion to dismiss. Jd. at 405-06. In contrast,

Shekoyan had never before worked for Sibley. His employment contract

did not state the assignment to the Republic of Georgia was “tempo-

rary.” Nor did it state he would subsequently be reassigned by a

domestic division to a domestic position. Because his job in the Republic

of Georgia was the only position he ever held with Sibley, his duties

were not the same as any prior domestic position. He was directly

supervised by personnel located in Georgia. And he only traveled to the

United States one or two times for personal vacations. Thus, as the

Torrico Court observed, Shekevan’s employment was no different than

that in all of the other cases utilizing the “workstation” approach and

focusing on the locale of the employee’s day to day work.

24

In sum, the lower courts’ rejection of Shekoyan’s Title

VII claim is consistent with all other case authority

addressing the salient issues, and there is no reason for

this Court to take up this case.

IV. THE LOWER COURTS’ AFFIRMANCE OF SUM-

MARY JUDGMENT ON PETITIONER’S FCA

CLAIM ALSO IS CONSISTENT WITH THE ES-

TABLISHED CASE LAW AND RAISES NO LEGAL

ISSUE THIS COURT NEEDS TO DECIDE

In the Court of Appeals, Shekoyan made only a cursory

argument challenging the grant of summary judgment on his

FCA “whistle-blower” claim (barely three pages, in contrast

to the 37-pages he devoted to Title VII). Moreover, the thrust

of his argument was that the district court’s grant of sum-

mary judgment was “inconsistent” with the court’s prior

denial of Sibley’s 12(b)(6) motion to dismiss. (Pet. AOB 46-48)

Of course, there was nothing “inconsistent” in the rulings,

and summary judgment was properly granted after discov-

ery was undertaken and undisputed evidence established he

could not prevail on a FCA claim.

Contrary to what Shekoyan now suggests, the lower

courts did not formulate any new legal standard for

evaluating his “whistle-blower” claim. Rather, the courts

employed the established legal framework articulated by

the Circuit Court in United States ex rel. Yesudian v.

Howard Univ., 153 F.3d 731, 736 (D.C. Cir. 1998), and

followed in other circuits. And evaluated within this

framework, the facts do not support a viable claim.

As the lower courts recognized, not every question

raised or concern expressed by an employee can later be

used as the basis for a “whistle-blower” claim. “Protected

activity” must relate to “exposing fraud” or “involvement

with a false claims disclosure.” McKenzie v. BellSouth

Telecomm., 219 F.3d 508, 515 (6th Cir. 2000). For example,

in Hutchins v. Wilentz, Goldman & Spitzer, 253 F.3d 176

(3d Cir. 2001), a law firm partner asked the plaintiff

paralegal to “investigate certain client bills, with particu-

lar attention to the ‘high cost’ of certain computerized legal

research.” Jd. at 179-80. The plaintiff did so and prepared

a memorandum detailing his concerns about the firm’s

billing practices. Jd. He was subsequently terminated

because the firm suspected he had authored a disparaging

memo circulated by another paralegal. Jd. at 181. The

Third Circuit affirmed summary judgment on his “whistle-

blowing” claim. The plaintiff “never threatened to report

his discovery ... to a governmental authority, nor did he

file a False Claims Act suit until after he was terminated.”

Id. at 193. He never told his supervisors he believed the

billing was “illegal” or that it was “fraudulent.” Id.; see

also McKenzie, 219 F. 3d at 516-17 (the “in furtherance”

requirement requires “more than merely reporting wrong-

doing to supervisors”).

Thus, “[mJere dissatisfaction with one’s treatment on

the job is not, of course, enough. Nor is an employee's

investigation of nothing more than his employer’s non-

compliance with federal or state regulations.” Yesudian,

153 F. 3d at 740; see also Brandon v. Anesthesia & Pain

Mgmt. Assocs., Ltd., 277 F.3d 936, 944 (7th Cir. 2002)

(plaintiff failed to establish a “whistle-blowing” claim

where he told shareholders he was concerned about their

company’s Medicare billing practices to try “to convince”

them to comply with regulations); United States ex rel.

Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1523

(10th Cir. 1996) (plaintiff did not establish a claim where

26

she “regularly communicated” to her superiors information

about non-compliance with Medicare billing practices, but

“never suggested” she intended to report the noncompli-

ance to the government or gave “any indication” she

intended to pursue it further for purposes of a qui tam

action; rather, concerns she raised were within the scope of

her job duties and thus failed to put employer on notice

she was acting “in furtherance” of a False Claims Act

action).

As the lower courts here explained, Shekoyan’s own

deposition testimony demonstrated he had not engaged in

conduct meeting the “in furtherance” requirement. While

Shekoyan claims he raised questions about several mat-

ters [Rec. 591-92, 885-95], he admitted he did not know

whether there actually were any problems and he raised

the questions so Sibley could look into them [Rec. 589-94,

893-95]. Shekoyan also was adamant that he never be-

lieved Sibley had engaged in fraudulent conduct.” (Rec.

595-96)

For example, Shekoyan testified in deposition that after he spoke

with Gary Vanderhoof, Sibley’s vice-president at the time, about the

fact two branch heads of the Georgian Federation of Professional

Accountants and Auditors (“GFPAA”) - a recipient of GEAR project

funds — appeared to have other full time employment, as well, and why

their salaries were not being reported in full, Vanderhoof told him,

“don’t make too much noise. Let us finish this [contract] extension [with

USAID] ... and then we will deal with whatever issues you have to

deal with.” (Rec. 594) When asked whether he was concerned enough

that he “made noise” about “stealing money,” Shekoyan answered: “This

is vour conclusion. What | thought was that something inappropriate is

taking place. We have to either shed light on it to find out what’s really

going on. ...” (Rec. 595) When pressed again as to “when” he concluded

Sibley was involved in any “corruption,” Shekoyan again denied ever

coming to such a conclusion: “Absolutely no. I do not agree with this

statement. I have never concluded that there was corruption. I thought

(Continued on following page)

27

“An employer is entitled to treat a suggestion for

improvement as what it purports to be rather than as a

precursor to litigation.” Luckey v. Baxter Healthcare Corp.,

183 F.3d 730, 733 (7th Cir. 1999); see also Hutchins, 253

F.3d at 193 (in complaining to supervisor about billing

practices, plaintiff “‘merely informed a supervisor of a

problem and sought confirmation that a correction was

made’” (quoting Zahodnick v. Intl Bus. Machs. Corp., 135

F.3d 911, 914 (4th Cir. 1997)); McKenzie, 219 F.3d at 516

(internal reports seeking to have employer comply with

federal or state regulations are not conduct “in furtherance

of” a False Claims Act action); Robertson v. Bell Helicopter

Textron, Inc., 32 F.3d 948, 951-52 (5th Cir. 1994) (plaintiff

never gave employer any indication he was raising con-

cerns as part of a fraud investigation that could lead to

legal action).

The lower courts properly concluded the most the

admissible evidence showed was that Shekoyan raised

questions that Sibley was entitled to take at face value —

inquiries by an employee who wanted to alert the company

to issues that bore further examination so it could make

sure it was following applicable rules and regulations.

There was nothing in either the substance of Shekoyan’s

inquiries or the way in which they were made that put

Sibley on notice he was engaged in conduct “in further-

ance” of 4 False Claims Act action. Accordingly, there is no

reason for this Court to revisit the lower courts’ applica-

tion of the established law to the particular record in this

case.

that there were some issues that need to be addressed or corrected or

fixed or I don’t know, worked out, but I did not conclude that there was

a corruption.” (Rec. 596)

28

THE CIRCUIT COURT OF APPEALS HAD A

FIRM GRASP OF THE ABUSE OF DISCRE-

TION STANDARD

Shekoyan’s claim that the Court should grant his

petition to expound on the abuse of discretion standard

scarcely merits response. The district court acted well

within its discretion in refusing to allow him to file a

belated motion for summary judgment nine months after

discovery closed and the deadline for filing dispositive

motions had passed. (App. 1151-52) In addition, while

Shekoyan claims his belated motion was based on “new”

evidence, the supposedly newly obtained declaration from

George Adamia did not “add” anything new for purposes of

summary judgment. Shekoyan, himself, characterized the

declaration as simply “corroborating” his own claims.

(App. 898) Finally, in addition to its other defenses, Sibley

disputed Shekoyan’s claims of alleged misconduct. (App.

196-203) Accordingly, Shekoyan could not possibly have

prevailed on a motion for summary judgment.

The district court also acted well within its discretion

in denying his Rule 11 motion for sanctions. Shekoyan’s

submission of an unnotorized declaration of his attorney

purporting to recount the substance of telephone inter-

views with two former Sibley employees and a “draft,”

unsigned declaration one of these former employees

supposedly had agreed to sign triggered two motions.

Sibley moved to strike the improper submissions [Rec.

1326-59, 1360-74], and in conjunction with that motion

filed sworn and signed declarations by both individuals

stating Shekoyan’s lawyer had made a number of misrep-

resentations in her proffered declaration [Rec. 1361-71].

Shekoyan countered with a Rule 11 motion for sanctions

for a litany of perceived wrongs and slights, including

Sibley’s failure to notify opposing counsel] prior to filing the

motion to strike as required by local rule, for bringing a

“frivolous” motion to strike and for filing a “frivolous”

counter-claim. (Rec. 1978-2031)

In a 15-page order, the district court chronicled each

of the parties’ contentions and granted in part Sibley’s

motion to strike, instructed all parties to abide by court

rules in the future, and denied Shekoyan’s Rule 11 motion

for sanctions. (App. 1152-69) The district court acted well

within its discretion in this even-handed handling of the

parties’ string of accusations of improper and bad faith

conduct. While Shekoyan complains the court denied his

Rule 11 motion without bothering to listen to the tape he

submitted to support his claim that one of the declarations

submitted by Sibley was “perjured,” what the district court

did was “refuse” to sort out the cross-accusations and,

instead, ruled Shekoyan could use the tape at trial to

impeach the witness [App. 1167] -— again, a ruling well

within the court’s discretion.

30

CONCLUSION

Not only are the questions proffered by Petitioner a

step beyond what the record will fairly support, but not

one warrants the attention of this Court. The petition for

writ of certiorari should be denied.

DATED January 11, 2006.

KATHY M. BANKE

REED SMITH LLP

1999 Harrison Street, Suite 2400

Oakland, CA 94612-3572

Telephone: 510.763.2000

Facsimile: 510.273.8832

Counsel for Respondent

Sibley International, Inc.