# Opposition Brief — Shekoyan v. Sibley International, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 1173

## Text

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].

+

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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0572%3A2. Public record. Not legal advice.