UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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:

RAJAA AL MUKADDAM,

> :

Plaintiff,

> : No. 99 Civ. 3354 (LAK)
>
> \- against -
>
> :

PERMANENT MISSION OF SAUDI ARABIA

TO THE UNITED NATIONS,

:

> Respondents.

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[STATEMENT OF INTEREST OF THE UNITED STATES]{.underline}

[PRELIMINARY STATEMENT]{.underline}

The United States of America (the \"United States\") respectfully
submits this Statement of Interest pursuant to 28 U.S.C. § 517,[^1] and
upon request of the Court pursuant to an Order, dated July 26, 2000, to
express its views on the parameters of the immunity to suit of the
Kingdom of Saudi Arabia (\"Saudi Arabia\") under the Foreign Sovereign
Immunities Act (the \"FSIA\"), 28 U.S.C. §§ 1330, 1602-1611, and the
Vienna Convention on Diplomatic Relations, [done]{.underline} Apr. 18,
1961, [United States accession]{.underline}, April 29, 1970, 23 U.S.T.
3227 (the \"Vienna Convention\") in the circumstances presented.

[BACKGROUND]{.underline}

A. [Factual Allegations]{.underline}

The United States, taking no position on the merits of this action,
understands the factual allegations in this case to be as follows.
Plaintiff Rajaa Al Mukaddam (\"Mukaddam\") is a United States citizen
resident in New York, Complaint ¶ 3, 10. Mukaddam was employed by
defendant Permanent Mission of Saudi Arabia to the United Nations (the
\"Saudi Mission\") from 1984 to 1998. [Id.]{.underline} ¶ 9. On or about
April 3, 1998, the Saudi Mission terminated Mukaddam\'s employment
contract. [Id.]{.underline} ¶ 12. Mukaddam alleges that she was harassed
by members of the Saudi Mission, and that her employment was terminated,
due to her work for the United Nations on women\'s issues, and her
support for, and activity as, a proponent of women\'s rights generally.
[Id.]{.underline} ¶¶ 13-15; [see]{.underline} [also]{.underline}
Particulars of the Charge of Discrimination, attached to the Complaint
(\"Particulars\").

Neither party contends that Mukaddam was a member of the diplomatic
staff of the Saudi Mission. The Saudi Mission contends that Mukaddam was
employed in a civil service position. [See]{.underline} Defendant\'s
Mem. at 2 (citing Pl. Show Cause Mem. at 3).[^2] Mukaddam disputes this
characterization. [See]{.underline} Pl. Opp. Mem. at 8 n.1; 9. In a
filing made by Mukaddam while she was proceeding [pro]{.underline}
[se]{.underline}, she apparently assumed that she was a civil servant
because \"personnel of diplomatic missions are classified as civil
servants,\" Pl. Show Cause Mem. at 3, and because she \"was employed
pursuant to the standard civil service contract provided by the Ministry
of Foreign Affairs of Saudi Arabia for non-Saudi citizens and other
nationals.\" [Id.]{.underline} Mukaddam\'s contract with the Saudi
Mission is entitled \"Contract of Employment for Employees of
Representatives\' Offices and Offices of Attaches Abroad.\" Pl. Opp.
Mem, Exh. A, at 1. The contract provides for a one year term of
employment, automatically renewable unless one of the parties notifies
the other to the contrary. [Id.]{.underline} ¶ 2. It provides for
vacation and sick leave, [id.]{.underline} ¶¶ 7-12, and provides for
medical and social security benefits to the extent required by the laws
of the country in which the employment is conducted, here, the United
States. [Id.]{.underline} ¶ 13.[^3] The contract also contains a dispute
resolution provision, which refers \"\[a\]ny dispute between the two
parties on any of \[the contract\'s\] articles\" to the General
Directorate of Civil Service Commission in the Kingdom of Saudi Arabia.
[Id.]{.underline} ¶ 21.

During the entire length of her employment, Mukaddam held the position
of \"Senior Researcher and Advisor.\" Complaint ¶ 9; Pl. Show Cause Mem.
at 3. Mukaddam\'s job functions included speech writing, letter writing,
research, public relations and clerical functions for the Mission.
[See]{.underline} Complaint ¶ 10; Pl. Show Cause Mem. at 3-5. Mukaddam
minimizes her level of responsibility and characterizes her functions as
largely clerical, \"akin to that of a public relations/marketing agent
and librarian,\" [see]{.underline} Pl. Opp. Mem. at 4, 10, while the
Saudi Mission contends that her duties were of a more \"governmental,\"
and hence sovereign, nature, [see]{.underline} Def. Mem. at 8-9; Def.
Reply Mem. at 4-5.

B. [This Action]{.underline}

On or about May 6, 1999, Mukaddam brought this civil action against the
Saudi Mission alleging sexual harassment and gender discrimination under
Title VII of the Civil Rights Act of 1964, and under New York State
employment laws. Complaint ¶¶ 1; 17-29. Mukaddam seeks \"\[i\]njunctive
and declaratory relief, damages and other appropriate legal and
equitable relief.\" [Id.]{.underline} ¶ 2. In lieu of answering the
complaint, the Saudi Mission has filed a motion to dismiss on the
grounds of, [inter]{.underline} [alia]{.underline}, sovereign immunity.
By Order, dated July 26, 2000, the Court invited the United States
Department of State and the Office of Legal Affairs of the United
Nations to submit views on the motion.

[ARGUMENT]{.underline}

I. The Foreign Sovereign Immunities Act Provides The

[Relevant Standards For Determining Sovereign Immunity]{.underline}

> A. [The Foreign Sovereign Immunities Act]{.underline}

The FSIA provides a comprehensive framework for determining whether
courts in this country may exercise jurisdiction over a foreign state.
[Republic of Argentina v. Weltover]{.underline}, 504 U.S. 607, 610
(1992). \"Under the Act, a \'foreign state shall be immune from the
jurisdiction of the courts of the United States and of the states\'
unless one of several statutorily defined exceptions applies.\"
[Id.]{.underline} at 610-11 (quoting 28 U.S.C. § 1604). \"The FSIA thus
provides the \'sole basis\' for obtaining jurisdiction over a foreign
sovereign in the United States.\" [Id.]{.underline} at 611 (citing
[Argentine Republic v. Amerada Hess Shipping Corp.]{.underline}, 488
U.S. 428, 439 (1989)).

The FSIA largely codifies the \"restrictive theory\" of sovereign
immunity, which was first endorsed by the State Department in 1952.
[Saudi Arabia v. Nelson]{.underline}, 507 U.S. 349, 359 (1993);
[Weltover]{.underline}, 504 U.S. at 612.[^4] \"Under the restrictive, as
opposed to the \'absolute\' theory of foreign sovereign immunity, a
state is immune from the jurisdiction of foreign courts as to its
sovereign or public acts (jure imperii), but not as to those that are
private or commercial in character (jure gestionis).\"
[Nelson]{.underline}, 507 U.S. at 359-60.

The restrictive theory of sovereign immunity was not initially enacted
into law, and its application proved difficult. Initial responsibility
for deciding questions of sovereign immunity fell primarily upon the
State Department, which then made \"suggestions\" of immunity to the
courts. Consequently, foreign states often placed diplomatic pressure on
the State Department in attempts to obtain immunity. Moreover, some
nations did not make immunity requests through the State Department,
leaving the decision solely with the courts, which had only the guidance
of prior State Department decisions. Thus, a system developed where
\"sovereign immunity determinations were made in two different branches,
subject to a variety of factors, sometimes including diplomatic
considerations. Not surprisingly, the governing standards were neither
clear, nor uniformly applied.\" [Verlinden]{.underline}, 461 U.S. at
487-88.

To remedy this situation, in the FSIA Congress removed decisions over
foreign sovereign immunity from the Executive Branch and placed them in
the hands of the judiciary. 28 U.S.C. § 1602. The legislative history of
the FSIA makes clear that these determinations were given to the
judiciary to free the Government from case-by-case diplomatic pressures,
to clarify applicable standards, and to assure that decisions are made
on purely legal grounds, under procedures that ensure due process.
[Verlinden]{.underline}, 461 U.S. at 488 (quoting H.R. Rep. No. 94-1487,
94th Cong., 2d Sess. (Sept. 9, 1976), at 7, [reprinted]{.underline}
[in]{.underline} 1976 U.S.C.C.A.N. 6604, 6605 (the \"FSIA House
Report\")).

B. [The Commercial Activity Exception]{.underline}

> [To Foreign Sovereign Immunity]{.underline}

In this action, plaintiff asserts jurisdiction under the \"commercial
activity\" exception to foreign sovereign immunity. Under Section
1605(a)(2) of the FSIA, a foreign state is not immune from jurisdiction
where \"the action is based upon a commercial activity carried on in the
United States by the foreign state,\" 28 U.S.C. § 1605(a)(2).
\"Commercial activity\" is described as:

> either a regular course of commercial conduct or a particular
> commercial transaction or act. The commercial character of an activity
> shall be determined by reference to the nature of the course of
> conduct or particular transaction or act, rather than by reference to
> its purpose.

28 U.S.C. § 1603(d).

There is no provision of the FSIA, which defines \"commercial.\"
[Weltover]{.underline}, 504 U.S. at 612. However, \"\[t\]he FSIA was not
written on a clean slate . . . . \[and\] \[t\]he meaning of
\'commercial\' is the meaning generally attached to that term under the
restrictive theory of immunity at the time the statute was enacted.\"
[Id.]{.underline} at 612-13. The FSIA House Report discusses the
definition of \"commercial activity\" at some length. The passages of
particular relevance to the present case are as follows:

> As the definition indicates, the fact that goods or services to be
> procured through a contract are to be used for a public purpose is
> irrelevant; it is the essentially commercial nature of an activity or
> transaction that is critical.
>
> \* \* \* \*
>
> Also public or governmental and not commercial in nature, would be the
> employment of diplomatic, civil service, or military personnel, but
> not the employment of American citizens or third country nationals by
> the foreign state in the United States.
>
> \* \* \* \*
>
> Activities such as a foreign government\'s sale of a service or a
> product, its leasing of property, its borrowing of money, its
> employment or engagement of laborers, clerical staff or public
> relations or marketing agents, or its investment in a security of an
> American corporation, would be among those included within the
> definition.

FSIA House Report at 16, 1976 U.S.C.C.A.N. 6614-15.

The Second Circuit has not addressed the FSIA\'s commercial activity
exception in the context of employment in this country by a mission,
consulate, or other foreign government office. However, three other
Circuits have addressed the question in situations similar to the one at
issue here, and these decisions are instructive.

The issue was first considered by the Seventh Circuit in [Segni v.
Commercial Office of Spain]{.underline}, 835 F.2d 160 (7th Cir. 1987).
In [Segni]{.underline}, the Seventh Circuit considered a breach of
employment contract claim brought by an Argentine national who had been
terminated by the Commercial Office of Spain. As an initial matter, the
Seventh Circuit considered it \"too simple\" to view the employment
contract as merely a purchase of services, and hence commercial in
nature. [Id.]{.underline} at 165. In this regard, the Seventh Circuit
noted that such a definition would conflict with the legislative history
of the FSIA, which defined certain employment relationships, notably the
hiring of diplomats and civil servants, as falling within the
governmental, and not commercial sphere. [Id.]{.underline} (citing
[Broadbent v. Organization of American States]{.underline}, 628 F.2d 27
(D.C. Cir. 1980) (employees of an international organization hired as
civil servants fell outside of the definition of \"commercial activity\"
in the legislative history)).

The Seventh Circuit, also, however, refused to accept at face value the
defendant\'s characterization of Segni\'s work as \"diplomatic
activity\" merely because his work was for a government office and
ultimately had the purpose of furthering the policy interests of Spain.
[Id.]{.underline} at 164. Instead, the Seventh Circuit examined the
employment activities at issue to determine whether they were in fact
governmental, as defined by the FSIA House Report, or private.
[Id.]{.underline} at 165. This examination led the Court to conclude
that Segni\'s employment relationship with the Government of Spain was
commercial in nature, and therefore subject to jurisdiction under the
FSIA:

> An examination of the nature of his activities indicates that he
> cannot be considered either as a civil servant or a diplomatic
> officer. He had no role in the creation of the government policy or
> its administration; rather, he simply carried it out. There is no
> indication in the record that he was so supervised or monitored by the
> Commercial Office, or so privy to its political deliberations, as to
> be considered a part of the Spanish Government, as a civil servant or
> diplomat would be. In that regard, it is of little consequence that
> Segni was permitted to elect to contribute to Spanish Social Security.
> Such a subsidiary term cannot render an otherwise essentially
> commercial contract a governmental one for FSIA purposes.

[Id.]{.underline}

The Ninth Circuit was the next to address the definition of \"commercial
activity\" in the context of employment by a foreign government\'s
office in this country, in [Holden v. Canadian Consulate]{.underline},
92 F. 3d 918 (9th Cir. 1996). In [Holden]{.underline}, the Canadian
government had closed its Consulate in San Francisco, but kept open a
small satellite office, which it chose to staff with a person who was
younger and less experienced than the plaintiff. [Id.]{.underline} at
920. Plaintiff brought suit against the Canadian Consulate, claiming
wrongful termination due to age and sex discrimination.

Upon reviewing the legislative history, and the decision in
[Segni]{.underline}, the Ninth Circuit stated it too would \"adopt the
standard suggested by the legislative history, that is, employment of
diplomatic, civil service or military personnel is governmental and the
employment of other personnel is commercial.\" [Id.]{.underline} at 921.
As with [Segni]{.underline}, however, the Ninth Circuit was not content
merely to accept labels placed upon the employment by the parties, but
instead required a detailed evaluation of the nature of plaintiff\'s
work to determine whether she was in fact a civil servant or a diplomat.
(There was no allegation that plaintiff was part of Canada\'s military
service). [Id.]{.underline}

With respect to civil service status, the Court affirmed the District
Court\'s conclusion that Holden was not a civil servant, based on the
fact that she had not competed through examination prior to being hired,
was not entitled to tenure, was not provided the same benefits as
foreign service officers, and was not provided with the same protections
afforded to the Canadian civil service. [Id.]{.underline}

With respect to diplomatic status, the Court noted that Holden, unlike
Segni, had been notified as part of the Consulate\'s staff.
[Id.]{.underline} at 922. However, the Court again did not find this
dispositive, but looked to whether Holden was involved in policy making,
or was privy to governmental policy deliberations, whether she engaged
in any lobbying activity or legislative work for Canada, and whether she
could speak for the government. [Id.]{.underline} Finding that her job
did not include any of these functions, and that, as an American, Holden
was not allowed in the Consulate unless in the company of a foreign
service officer, the Court concluded that she could not be considered a
diplomat. [Id.]{.underline}

Based on all of these factors, the Ninth Circuit concluded that
Holden\'s employment relationship was analogous to that of a marketing
agent, was not uniquely governmental, and as such, was \"commercial
activity\" subject to the jurisdiction of the federal court under the
FSIA. [Id.]{.underline}

Finally, earlier this year, in [El‑Hadad v. United Arab
Emirates]{.underline}, 216 F.3d 29 (D.C. Cir. 2000), the D.C. Circuit
addressed the question of sovereign immunity under the FSIA in the
context of employment at a diplomatic mission. In
[El-Hadad]{.underline}, the plaintiff was an Egyptian national
challenging his termination as an auditor for the United Arab Emirates
(\"UAE\") Embassy in Washington, D.C. [Id.]{.underline} at 32. Prior to
his employment at the UAE Embassy, plaintiff had worked in the UAE for
the UAE Government. [Id.]{.underline}

Following the approaches of the Seventh Circuit in [Segni]{.underline}
and the Ninth Circuit in [Holden]{.underline}, and the legislative
history of the FSIA, the D.C. Circuit made clear that employment of
mission personnel is neither [per]{.underline} [se]{.underline}
commercial, nor [per]{.underline} [se]{.underline} exempt, but rather,
that a detailed factual inquiry is necessary to determine whether the
employment at issue constituted commercial activity. [Id.]{.underline}
at 33. Focusing on whether El-Hadad was a civil servant (as there was
apparently no allegation that he was a diplomat or in the military), the
D.C. Circuit set forth a number of non-exclusive factors to be
considered in the circumstances before the Court. [Id.]{.underline} at
33-34. These factors included (1) how the UAE\'s own laws defined its
civil service, and how El‑Hadad fit in that definition; (2) whether the
employment relationship was truly contractual or whether it was based
solely on the civil service laws of the UAE; (3) the relationship
between El-Hadad\'s employment in the mission to the United States, and
El-Hadad\'s previous employment in the UAE; (4) the nature of
El-Hadad\'s work; and (5) the relevance of El-Hadad\'s nationality,
which was not the nationality of the UAE, the employing country.
[Id.]{.underline} at 34.

In evaluating the relevance of El-Hadad\'s nationality, which was not
that of the employing country, the D.C. Circuit addressed an issue
raised by the legislative history that has caused some confusion, namely
whether the employment of United States citizens and third-country
nationals by a foreign sovereign in this country necessarily constitutes
\"commercial activity,\" even where the employee could also be
considered \"diplomatic, civil service or military personnel\" who
should be exempt from that definition. [See]{.underline} FSIA House
Report at 16 (appearing to contrast \"diplomatic, civil service and
military personnel\" with \"American citizens or third country
nationals\"); [El-Hadad]{.underline}, 216 F.3d at 33.

In [Broadbent]{.underline}, 628 F.2d at 35, the D.C. Circuit held that
the employment of civil servants by an international organization should
not be considered \"commercial activity,\" notwithstanding that all of
the employees were \"third-country nationals\" with respect to the
international organization, and thus would arguably fall within the
definition of \"commercial activity\" defined in the legislative
history. [Id.]{.underline} In [Broadbent]{.underline}, the D.C. Circuit
also opined, however, that third-country nationality would be
dispositive in a case involving a sovereign state, [ie.]{.underline},
that a foreign state could never be immune with respect to the hiring of
third-party nationals, even as diplomats, civil servants, or military
personnel. [Id.]{.underline} at 34.

In [El-Hadad]{.underline}, the D.C. Circuit noted that the
[Broadbent]{.underline} holding was grounded in the understanding that
an international organization does not have citizens of its own, and
therefore excepting third-country citizens from the definition of
governmental activities giving rise to immunity would swallow up the
rule that countries are immune with respect to the hiring of diplomatic,
civil service, and military personnel. [Id.]{.underline} (citing
[Broadbent]{.underline}, 628 F.2d at 34). In [El-Hadad]{.underline},
that Court then went on to conclude that the portion of the
[Broadbent]{.underline} opinion stating that the opposite would hold for
employment by foreign sovereigns was dicta, and that Congress could not
have meant to make the citizenship of an employee the determinative
factor with respect to immunity, although it could be considered in
answering the question of whether the employee at issue was, in fact, a
diplomat, civil servant, or military hire. [El-Hadad]{.underline}, 216
F.3d at 33.

The conclusion in [El-Hadad]{.underline} that a plaintiff\'s citizenship
may be considered in defining employment status, but should not be
dispositive of the existence of \"commercial activity,\" comports with
the conclusions reached by other courts considering this issue.
[See]{.underline} [Zveiter v. Brazilian National Superintendency of
Merchant Marine]{.underline}, 833 F. Supp. 1089 (S.D.N.Y. 1993) (foreign
sovereign\'s employment of American secretary is \"commercial activity\"
subjecting foreign sovereign to jurisdiction under the FSIA;
distinguishes international organization employment cases but does not
hinge decision on nationality of plaintiff), [suppl.]{.underline}
[decision]{.underline} 841 F. Supp. 111 (S.D.N.Y. 1993) (dual
citizenship of plaintiff did not change outcome); [see]{.underline}
[also]{.underline} [Segni]{.underline}, 835 F.2d at 165 n.6 (noting that
Segni was not a citizen of employing country, but declining to determine
importance of this factor beyond observing that a person hired by his
own government to work abroad should have a somewhat lesser expectation
of suing his homeland in his host nation\'s courts than a person locally
hired). [Compare]{.underline} [Elliott v. British Tourist
Authority]{.underline}, 986 F. Supp. 189, 194 (S.D.N.Y. 1997)
(employment of marketing executive by tourism agency wholly owned by
Great Britain was \"commercial activity;\" while Court assumed plaintiff
was an American citizen and that his lack of British citizenship would
place him outside of the scope of \"\'noncommercial\' employment of
civil servants,\" question of sovereign immunity did not appear to turn
on plaintiff\'s citizenship), [aff\'d]{.underline}, 172 F.3d 37 (TABLE)
(unpublished decision at 1999 WL 38836 (2d Cir. 1999)); [Alonso v. Saudi
Arabian Airlines Corp.]{.underline}, No. 98 Civ. 7781 (SAS), 1999 WL
244102, \*2 (S.D.N.Y. April 23, 1999)(assuming that employment of
American citizen by foreign state was commercial where employer was
Saudi Arabian-owned commercial airline).

> C. [Standards To Be Applied To This Action]{.underline}

The three Circuits to consider issues similar to those presented here
have all arrived at the same analytical framework, with each concluding
that the case ultimately should be decided according to whether a
plaintiff genuinely was a member of the \"diplomatic service\" or the
\"civil service\" of the foreign state.[^5] The United States agrees
that this is the appropriate approach. Moreover, the United States
agrees with the D.C. Circuit\'s conclusion in [El-Hadad]{.underline}
that the citizenship of the plaintiff, [ie.]{.underline} whether the
plaintiff is a citizen of the employing country, an American citizen, or
a third-party national, should not be dispositive of immunity, but is a
factor to be considered, to the extent it sheds light on plaintiff\'s
status as a diplomat or civil servant.

This approach harmonizes the statements made in the legislative history
of the FSIA with the purpose of the \"commercial activity\" exception,
which, under the theory of restrictive immunity, is intended to exempt
truly governmental activities from jurisdiction, while ensuring that
commercial activities of a sovereign remain subject to judicial
scrutiny. Reserving immunity for those situations in which the employee
is truly a diplomat or civil servant also makes practical sense, as
those categories of individuals are more likely to have other meaningful
avenues of redress or protection within the employing country and it
would be reasonable to expect that those categories of individuals, and
their employers, would expect employment disputes to be settled without
resort to United States courts.

With respect to this action, there is no dispute that the plaintiff was
not a diplomat, but there remains a question as to whether she was
genuinely a member of the Saudi Arabian civil service. In the United
States\' view, this question should be answered by the District Court
after applying relevant factors of the type set forth in
[Segni]{.underline}, [Holden]{.underline}, and [El-Hadad]{.underline}.
In addition to the factors set forth in those cases, the United States
would also emphasize as an additional factor the location where the
plaintiff was hired. If an employee is hired in the sending state and
sent abroad, it is more likely that the individual is in the civil
service of the foreign state, and that a United States court should not
take jurisdiction in the case. On the other hand, where the employee is
locally hired, the court may presume that this is not the usual method
used to hire members of the civil service, absent a showing otherwise by
the foreign state. If a foreign state asserts that a locally hired
non‑sending state national ([i.e.]{.underline}, an American or third
country national) is a civil servant (or a diplomat), the foreign state
should bear the burden of demonstrating this fact, and that the claim
thus falls outside the commercial activity exception.

II\. The Vienna Convention Does Not Alter

[The Applicable Standards Under The FSIA]{.underline}

The FSIA explicitly operates \"\[s\]ubject to existing international
agreements to which the United States is a party,\" 28 U.S.C. § 1609.
The diplomatic and consular immunities of foreign states recognized
under various treaties are thus unaltered by the FSIA. [767 Third Avenue
Associates v. Permanent Mission of the Republic of Zaire]{.underline},
988 F.2d 295, 297 (2d Cir. 1993).

The Saudi Mission contends that regardless of whether its employment of
plaintiff would constitute \"commercial activity\" under the FSIA, this
suit is nonetheless barred by Article 7 of the Vienna Convention, which
provides that a diplomatic mission shall have the right to \"freely
appoint\" the staff of the mission. As described below, the United
States does not agree with this position. \"Treaties are contracts
between sovereigns, and as such, should be construed to give effect to
the intent of the signatories,\" [Tabion v. Mufti]{.underline}, 73 F.3d
535, 537 (4th Cir. 1996), and the meaning attributed to treaty
provisions by the Government agencies charged with their negotiation and
enforcement is entitled to great weight.\" [Kolovrat v.
Oregon]{.underline}, 366 U.S. 187, 194 (1961). [See]{.underline}
[also]{.underline} [Sumitomo Shoji Am., Inc. v. Avagliano]{.underline},
457 U.S. 176, 184-5 (1982). Therefore, the United States\' position on
the meaning and effect of Article 7 of the Vienna Convention in this
context should govern.

The Vienna Convention, which in large measure codifies the customary
international law on diplomatic privileges and immunities, was opened
for signature in 1961, and entered into force for the United States in
December 1972. [Id.]{.underline} at 300. Article 7 of the Vienna
Convention provides:

> Subject to the provisions of Articles 5, 8, 9 and 11, the sending
> State may freely appoint the members of the staff of the mission. In
> the case of military, naval or air attaches, the receiving State may
> require their names to be submitted beforehand, for its approval.

[Id.]{.underline} Pursuant to Article 1(c) of the Vienna Convention,
\"members of the staff of the mission\" are defined as the \"members of
the diplomatic staff, of the administrative and technical staff and of
the service staff of the mission.\" [Id.]{.underline} In the case of
representatives to the United Nations, the \"receiving state\" for these
purposes is the United States. Agreement Between the United Nations and
the United States of America Regarding the Headquarters of the United
Nations, June 26-Nov. 21, 1947, 61 Stat. 3416 (the \"UN Headquarters
Agreement\"), Art. V, sec. 15. The \"sending state\" in this instance is
Saudi Arabia.

Saudi Arabia argues that authority to \"freely appoint\" mission staff
under Article 7 carries with it authority freely to discharge such
staff, and that decisions to discharge are immune from legal challenge
by virtue of this provision of the Vienna Convention. This
interpretation of Article 7 would give foreign missions complete
discretion in employment practices regarding mission staff, including
with respect to United States citizens and third-party nationals, and
all locally engaged staff.

The United States takes a different view of the meaning and purpose of
Article 7. The \"freely appoint\" language must be read in the context
of the surrounding provisions, several of which are expressly referenced
in Article 7. For example, under Article 4 of the Vienna Convention, the
sending state is obliged to obtain prior approval, or \"agrément,\" from
the receiving state of its choice for head of the mission. No such prior
approval is required for other mission staff, who by contrast may be
\"freely appointed.\" Several other provisions referenced in Article 7
place limitations on the ability of the sending state to \"freely
appoint\" mission staff. Thus, the receiving state may place
restrictions on the nationality of persons it will accept as diplomatic
agents, [see]{.underline} Article 8; it may declare members of the
mission [persona]{.underline} [non grata]{.underline}, including prior
to their arrival, [see]{.underline} Article 9; and it may restrict the
mission to a reasonable size, [see]{.underline} Article 11. It is
subject to limitations of this kind that the sending state may otherwise
\"freely appoint\" members of the mission.

The restrictions on appointment of mission staff contained in
surrounding Vienna Convention provisions thus address certain
prerogatives of the receiving state regarding the acceptability of
certain mission members. The authority granted in Article 7 to \"freely
appoint\" mission staff stands in contrast to these prerogatives, and is
to be interpreted in this light. In the United States\' view, Article 7
was intended only to make clear that the receiving state should not
impose additional restrictions on the acceptance of mission personnel,
such as requiring local staff to be hired from an \"approved\" list, and
is wholly irrelevant to the question of application of local labor and
employment laws to diplomatic missions and mission personnel. In short,
the authority granted in Article 7 to appoint mission staff freely and
without objection from the host state says nothing about immunity from
claims by such staff. That issue is governed by principles of sovereign
immunity, not by the Vienna Convention.

The United States acts consistently with the views herein in defending
cases in foreign courts involving conditions of employment or discharge
at its diplomatic and consular missions in other countries.
[See]{.underline} Declaration of Linda Jacobson, dated August 30, 2000
(\"Jacobson Decl.\"), at ¶¶ 3-5; 7. The United States generally
considers such cases commercial in nature, and does not broadly assert
sovereign immunity, nor rely on Article 7 of the Vienna Convention, to
avoid them.[^6] [Id.]{.underline} ¶¶ 4, 7. Many other governments share
the practice of defending such suits in local courts on the merits, not
on sovereign immunity. [Id.]{.underline} ¶ 5. This widespread practice
would make no sense if Article 7 were recognized to provide absolute
immunity from employment‑based claims at diplomatic missions.

Notwithstanding the above, it should be noted that the Vienna
Convention, as applied by Art. V, sec. 15 of the UN Headquarters
Agreement, as well as the Convention on Privileges and Immunities of the
United Nations, [adopted]{.underline} Feb. 13, 1946, [United States
accession]{.underline}, April 29, 1970, 21 U.S.T. 1418 (the \"General
Convention\"), may well limit the conduct of proceedings in this case.
For example, Article 24 of the Vienna Convention states that \"\[t\]he
archives and documents of the mission shall be inviolable at any time
and wherever they may be.\" [Id.]{.underline} [See]{.underline}
[also]{.underline} General Convention, Art. V, sec. 11 (detailing
privileges and immunities of representatives of member states).
Similarly, under Articles 31(2) and 37(2) of the Vienna Convention, and
Article V, sec. 11 of the General Convention, the head of a mission, and
diplomatic and administrative staff, cannot be obliged to give
testimony. Thus, absent a waiver of these immunities by Saudi Arabia,
plaintiff\'s ability in this action to obtain document and deposition
discovery, and trial testimony, may be quite limited.

The nature and the extent of the remedies available to plaintiff may
also be circumscribed by the diplomatic status of the Saudi Mission. For
instance, Article 22 of the Vienna Convention, reciting principles of
mission inviolability, and Article 25 of the Vienna Convention, stating
the obligation of the host state to accord full facilities for the
performance of mission functions, would preclude the Court from entering
injunctive relief, including reinstatement. [See]{.underline}
[generally]{.underline} [767 Third Avenue Associates]{.underline}, 988
F.2d at 297-300 (mission inviolability did not prevent action for
damages for failure to pay back rent, but precluded eviction from
premises). Such limits on specific remedies which would compel the
foreign state to hire or retain a particular person are consistent with
the position taken by the United States in foreign countries.
[See]{.underline} discussion above, at 20 & 20 n.6.

The above-discussed limitations do not, however, address the central
question of immunity from suit. Such immunity, in the circumstances
presented, is not governed by the Vienna Convention, and may only be
determined under the FSIA.

[CONCLUSION]{.underline}

For the foregoing reasons, the United States respectfully submits that
the Court should determine Saudi Arabia\'s claim of sovereign immunity
in this action in accordance with the standards set forth in Sections
1605(a)(2) and 1603(d) of the Foreign Sovereign Immunities Act, which
are not altered by Article 7 of the Vienna Convention.

Dated: New York, New York

September 1, 2000

MARY JO WHITE

United States Attorney for the

Southern District of New York

By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

WENDY H. SCHWARTZ (WS-1862)

Assistant United States Attorney

100 Church Street, 19th Floor

New York, New York 10007

Tel.: (212) 637-2744

Attorney for the United States

of America

Of counsel:

STEPHEN D. McCREARY

Attorney-Adviser

Office of Diplomatic Law and Litigation

Office of the Legal Adviser

United States Department of State

Washington, D.C. 20520

Attorney for the United States

Department of State

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

\- - - - - - - - - - - - - - - - - -x

:

RAJAA AL MUKADDAM,

> :

Plaintiff,

> : No. 99 Civ. 3354 (LAK)
>
> \- against -
>
> :

PERMANENT MISSION OF SAUDI ARABIA

TO THE UNITED NATIONS,

:

> Respondents.

\- - - - - - - - - - - - - - - - - -x

[STATEMENT OF INTEREST OF THE UNITED STATES]{.underline}

MARY JO WHITE

United States Attorney for the

Southern District of New York

100 Church Street, 19th Floor

New York, New York 10007

Tel.: (212) 637-2744

WENDY H. SCHWARTZ (WS-1862)

Assistant United States Attorney

STEPHEN D. McCREARY

Attorney-Adviser

Office of Diplomatic Law and

Litigation

Office of the Legal Adviser

United States Department of State

Washington, D.C. 20520

\- Of Counsel -

[TABLE OF CONTENTS]{.underline}

TABLE OF AUTHORITIES ii

PRELIMINARY STATEMENT 1

BACKGROUND 1

A. Factual Allegations 1

B. This Action 4

ARGUMENT 4

I. The Foreign Sovereign Immunities Act Provides The Relevant Standards
For Determining Sovereign Immunity 4

> A. The Foreign Sovereign Immunities Act 4

B. The Commercial Activity ExceptionTo Foreign Sovereign Immunity 6

> C. Standards To Be Applied To This Action 15

II\. The Vienna Convention Does Not AlterThe Applicable Standards Under
The FSIA 17

CONCLUSION 23

[TABLE OF AUTHORITIES]{.underline}

[CASES]{.underline}

[767 Third Avenue Associates v. Permanent]{.underline}

[Mission of the Republic of Zaire]{.underline},

988 F.2d 295 (2d Cir. 1993) 17, 21

[Alonso v. Saudi Arabian Airlines Corp.]{.underline},

No. 98 Civ. 7781 (SAS), 1999 WL 244102

(S.D.N.Y. April 23, 1999) 14

[Broadbent v. Organization of American States]{.underline},

628 F.2d 27 (D.C. Cir. 1980) 8, 12, 13

[El-Hadad v. United Arab Emirates]{.underline},

216 F.3d 29 (D.C. Cir. 2000) 11, 12, 13

15, 16

[Elliott v. British Tourist Authority]{.underline},

> 986 F. Supp. 189 (S.D.N.Y. 1997),
>
> [aff\'d]{.underline}, 172 F.3d 37 (TABLE),

1999 WL 38836 (2d Cir. 1999) 14

[Friedar v. Israel]{.underline},

614 F. Supp. 395 (S.D.N.Y. 1985) 15

[Holden v. Canadian Consulate]{.underline},

92 F.3d 918 (9th Cir. 1996) 9, 10, 11, 16

[Kolovrat v. Oregon]{.underline},

366 U.S. 187 (1961) 17

[Republic of Argentina v. Weltover]{.underline},

504 U.S. 607 (1992) 4, 5

7

[Saudi Arabia v. Nelson]{.underline},

507 U.S. 349 (1993) 5

[Segni v. Commercial Office of Spain]{.underline},

835 F.2d 160 (7th Cir. 1987) 8, 9, 10, 11

> 14, 16

[Sumitomo Shoji America, Inc. v. Avagliano]{.underline},

457 U.S. 176 (1982) 17

[Tabion v. Mufti]{.underline},

73 F.3d 535 (4th Cir. 1996) 17

[Verlinden B.V. v. Central Bank of Nigeria]{.underline},

461 U.S. 480 (1983) 5, 6

[Zveiter v. Brazilian National Superintendency]{.underline}

> [of Merchant Marine]{.underline}, 833 F. Supp. 1089

(S.D.N.Y. 1993), [suppl.]{.underline} [decision]{.underline}

841 F. Supp. 111 (S.D.N.Y. 1993) 14

[STATUTES, TREATIES AND RULES]{.underline}

28 U.S.C. § 517 1

28 U.S.C. §§ 1330, 1602-1611 1

28 U.S.C. § 1602 6

28 U.S.C. § 1603(d) 7

28 U.S.C. § 1605(a)(2) 7

28 U.S.C. § 1609 17

Agreement Between the United Nations

and the United States of America

Regarding the Headquarters of the

United Nations, June 26-Nov. 21, 1947,

61 Stat. 3416 18, 21

Convention on Privileges and Immunities

of the United Nations, [adopted]{.underline} Feb. 13, 1946,

[United States accession]{.underline}, April 29, 1970,

21 U.S.T. 1418 21

Vienna Convention on Diplomatic Relations,

[done]{.underline} Apr. 18, 1961, [United States accession]{.underline},

April 29, 1970, 23 U.S.T. 3227 1, 17, 18, 19,

> 20, 21, 22

Fed. R. Civ. P. 12(b)(1) 2

Fed. R. Civ. P. 12(b)(2) 2

Fed. R. Civ. P. 12(b)(6) 2

[MISCELLANEOUS]{.underline}

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

(Sept. 9, 1976), [reprinted]{.underline} [in]{.underline}

1976 U.S.C.C.A.N. 6604 6, 7, 8,

> 9, 12

[^1]:
    > Pursuant to 28 U.S.C. § 517, the United States may appear in any
    > court in the United States "to attend to the interests of the
    > United States in a suit pending in a court of the United States,
    > or in a court of a State, or to attend to any other interest of
    > the United States."

[^2]:
    > Plaintiff\'s Memorandum of Law, undated, which was filed in
    > response to this Court\'s Order to Show Cause, dated July 20, 1999
    > is referenced herein as \"Pl. Show Cause Mem.\" Defendant
    > Permanent Mission of the Kingdom of Saudi Arabia to the United
    > Nations\' Memorandum of Law in Support of Motion to Dismiss
    > Plaintiff\'s Complaint Pursuant to Federal Rules of Civil
    > Procedure 12(b)(1),(2), and (6) and to Strike Jury Demand, dated
    > February 29, 2000 is referenced herein as \"Defendant\'s Mem.\"
    > Plaintiff Rajaa Al Mukaddam\'s Memorandum of Law in Opposition to
    > Defendant Permanent Mission of Saudi Arabia to the United
    > Nations\' Motion to Dismiss Plaintiff\'s Complaint is referenced
    > herein as \"Pl. Opp. Mem.\" Defendant Permanent Mission of the
    > Kingdom of Saudi Arabia to the United Nations\' Reply Memorandum
    > of Law in Support of Motion to Dismiss, dated April 28, 2000 is
    > referenced herein as \"Def. Reply Mem.\"

[^3]:
    > If the country in which employment occurs requires no such
    > benefits, the contract provides minimal benefits upon death or
    > permanent disability. [Id.]{.underline} ¶ 14.

[^4]:
    > Prior to 1952, the United States generally granted foreign
    > sovereigns absolute immunity from suit. This practice was changed,
    > and the restrictive theory adopted, by the so-called \"Tate
    > Letter,\" a letter from Jack B. Tate, Acting Legal Adviser,
    > Department of State, to acting Attorney General Philip B. Perlman,
    > dated May 19, 1952. [Verlinden B.V. v. Central Bank of
    > Nigeria]{.underline}, 461 U.S. 480, 487 & 487 n.9 (1983).

[^5]:
    > The question of military service did not arise in those cases, and
    > is not relevant to this action. It should be noted that at least
    > one District Court has concluded that employment of an American
    > citizen in a foreign sovereign\'s military does not constitute
    > \"commercial activity.\" [Friedar v. Israel]{.underline}, 614 F.
    > Supp. 395, 398-400 (S.D.N.Y. 1985).

[^6]:
    > The United States may assert sovereign immunity in certain
    > instances. For example, if an entire diplomatic or consular
    > mission has been closed, or if the specific circumstances of the
    > case implicate governmental operations of the mission, the United
    > States may argue that such a decision is sovereign in nature.
    > [Id.]{.underline} ¶ 6. The United States may also argue that it
    > cannot be compelled to reinstate an employee, as such a remedy
    > impairs both sovereign and diplomatic immunities.
    > [Id.]{.underline}