United States Court of Appeals

Fifth Circuit



## FILED

January 31, 2005

Charles R. Fulbruge III

Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 04-20557

Summary Calendar

_______________



### P ETER 

### B ERNARD 

### J OHNSON



### ,

ON B EHALF OF H IMSELF AND A LL P ERSONS S IMILARLY S ITUATED

,



### Plaintiff-Appellant,

VERSUS



### A RAMCO 

### S ERVICES 

### C OMPANY 

### ; S AUDI 

### A RABIAN 

### O IL 

### C OMPANY



### ,

Defendants-Appellees



### .

_________________________

Appeal from the United States District Court

for the Southern District of Texas



### m 4:04-CV-642

_________________________

Before D AVIS

, S MITH , and

D ENNIS , Circuit Judges.

J ERRY E. S MITH , Circuit Judge: * Peter Johnson appeals the dismi ssal, for

want of subject matter jurisdiction, of his age

discrimination suit. Because Johnson alleges

sufficient facts, uncontroverted in the record

,

to sustain jurisdiction, we reverse and remand.

* Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published

and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.2 I.

On August 23, 2001, Jo hnson, who was

then fifty-seven years old, attended a job fair in

Houston hosted by Aramco Services Company

(“ASC”). While there he applied through ASC

for a job as a Sei smic Field Crew Supervisor

working in Saudi Arabia with Saudi Arabian

Oil Company (“SAO”).

S AO is a Saudi Arabian entity with its

principal office in Dhahran, Saudi Arabia, and

ASC, SAO’s wholly-owned subsidiary, is incorporated in Delaware . ASC states that it

provides SAO with a range of services, including assistance with recruiting.

Importantly, ASC apparently recruit s 

### S S albeit infrequently 

### SS

for entities other

than SAO. Support for this is found in the

record in the form of ASC’s letter to the Equal

Employ m ent Opportunity Commission

(“EEOC ”) in which it states, “ASC, among

others, re cruits employees for positions with

the Sa u di Arabian Oil Company (‘Saudi

Aramco’) and infrequently recruits for other

entities.” Johnson’s unrefuted affidavit asserts

that an ASC employee, Charles Ellmaker,

informed him that ASC acts as a recruiter for

additional entities including its own subsidiaries.

Accord ing to Johnson, he was later info rmed by Ellmaker that he would not be selected for the job, allegedly because of his advanced age. He filed a complaint with the

EEOC, was granted a right to sue letter, and

sued ASC and SAO alleging, inter alia

, violations of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.

ASC move d for dismissal based on a lack of

subject matter jurisdiction, pursuant to F ED

. R.

C IV

. P. 12(b)(1), or alternatively for summary judgment. The gravamen of its argument was that “the court cannot apply extra-territorially

the ADEA

. . . to a foreign corporat ion who

employs U.S. citizens to work abroad.” 2

Without hearing, the district court summarily

granted the motion to dismiss “with prejudice,

for lack of jurisdiction.” 3

II.

Because it is a pure question of law, we review de novo a dismissal for want of subject

matter j urisdiction. S ee Ramming v. United

States , 281 F.3d 158, 161 (5th Cir. 2001).

Lack of subject matter jurisdiction may be

fo und [on] any one of [the following bases]: (1) the complaint alone; (2) the complaint supplemented by undisputed facts

evidenced in the record; or (3) the complaint supplemented by undisputed facts

plus the court’s resolution of disputed

facts.

. . . In examining a Rule 12(b)(1)

motion, the district court is empowered to

consider matter s o f fact which may be in

dispute. Ultimately, a motion to dismiss for

lack of subject matter jurisdiction should be

granted o nly if it appears certain that the

plaint iff canno t pro ve any set of facts in

support of his claim that would ent itle

plaintiff to relief.

Id.

2 That this logic indis putably applies with respect to SAO, Johnson does not disagree, and he

consent ed to the dismissal of his claims against

SAO.

3 In addition to attacking the jurisdictional ruling, Johnson avers that the dismissal with prejudice

was inappropriate because a court withou t jurisdiction cannot make a ruling on the merits. Because

the district court erred in its jurisdictional analysis,

we do not reach this contention.3 III.

The ADEA provides, in part, that “[i]t shall

be unlawful for an employment agency to fail

or refuse to refer for employmen t, or otherwis e to discriminate against, any individual

because of such individual’s age, or to classify

or refer for employment any individual on the

basis of such individual’s a g e.” 29 U.S.C.

§ 623(b). Bridling this proposition is the notion that no federal statute applies extra-territori a lly unless Congress has expressly indicated its intent for such a n application. S ee

,

e.g.

, EEOC v. Arabian Am. Oil Co.

, 499 U.S.

244, 248 (1991). This canon of statutory constructi on “serves to protect against unintended

clashes between our laws an d those of other

nations which could result in international

discord.” I

d. B ecause the ADEA does not

evince any such intent, age d iscrimination

claims are not cognizable with respect to foreign corporations who employ American citizens to work aborad. 4

Based on the presumption a g ainst extra-territorial application, even Johnson concede s

that SAO is not a covered employer under the

ADEA. Nevertheless, because ASC is a U.S.

corporation, the same principle does not necessarily immunize it from suit.

Johnson asserts that ASC, functioning as an employment agency, may be liable for its own discriminatory

practices under 29 U.S.C.

§ 623(b). Johnson’s complaint avers that

ASC, through its screening and referral process that cl a ssified Johnson according to his age, violated the ADEA 

### SS independently of

SAO’s discriminatory practices.

ASC correctly notes, however, that SAO is

not a covered employer under the ADEA.

Consequently, goes the argument, recruiting

organizations such as ASC cannot be considered an employment agency for purposes of

the act if the foreign corporati on for whom the

recruiter works is not a covered employer under the ADEA. 5

Johnson responds with a twist that significantly distin guishes the cases on which ASC

relies. Under 29 C.F.R. § 1625.3, an employment agency that “ regularly procures employees for at least one covered employer [] qualifies under secti o n 11(c) of the [ADEA] as an employment agency with respect t o all of its

activities whether or not such activities are for

employe rs co vered by the act.” (Emphasis

added.) Consequently, if ASC “regularly” recruits for any covered employer or employers,

t he fact that SAO is not a covered employer

will no t immunize it from its conduct with

respect to Johnson.

The definition of “regularly procures” is not

necessarily self-evident, and although Johnson

made t his argument in the district court, that

court did not demonstrably consider it. ASC

contends that any infrequent work it does for

other employers ca nno t reach the level of

regularity. In contrast, Jo hnson in his brief

posits that “ [i]nfrequent recruitment may

include regular recruitment, such as regularly

4 See Denty v. SmithKline Beecham Corp.

, 109

F.3d 147, 150 (3 d Cir. 1991) (The ADEA “does

not apply to foreign nationals working for [U.S.]

corporations in a foreign workplace and it does not

apply to foreign compani es which are not controlled by U.S. firms.”). 5 S ee Brownlee v. Lear Siegler Mgmt. Servs.

Corp.

, 15 F.3d 976, 978 n.3 (10th Cir. 1994);

Shrock v. Altru Nurse s Registry , 810 F.2d 658,

660-61 (7th Cir. 1987); G oswami v. Aramco

Servs. Co.

, No. H-00-0929, slip op. at 12-14 (S.D.

Tex. Mar. 22, 2001).4

meeting the needs of a seasonal industry, albeit

once a year.”

The r e cord is notably underdeveloped on

the question whether ASC “regularly procures” employees for covered employers,

thereby subjecting it to liabilit y under the

ADEA. The only relevant evidence in the

record is ASC’s s ubmission to the EEOC

indicating that it “infrequently recruits for

other entities,” and t h e hearsay assertion in

Johnson’s affidavit that ASC recruits for companies in addition to SAO.

It is uncertain whether any of these other

entities is covered entities and whether ASC’s

a ctivities are performed with the requisite

regularity. Nevertheless, in the absence of a ny

evidence in the record to the contrary, it cannot be said t hat the district court correctly

concluded to a certaint y that Johnson cannot

pro ve any set of facts in support of his claim

that would entitle him to relief. S ee Ramming,

281 F.3d at 161

.

Af t er further discovery, ASC may be able

to show entitlement to summary judgment by

conclusively refuting the notion that its recruiting activities for other entities cause it to be

subjec t to suit under the ADEA. Given the

current record, however, Johnson has adequately pleaded facts sufficient to maintain

jurisdiction. The judgment of dismissal is

therefore REVERSED, and this matter is REMANDED. 6

6 ASC devotes considerable ink to the contention that Johnson, proceeding pro se , has waived

his arguments by failing to brief them adequately.

Specifically, ASC is apparently dismayed by Johnson’s alleged paucity of citations to the record in

support of factual propositions per F ED

. R. A PP

. P.

(continued...) 6 (...continued)

28(a)(7), 28(a)(9)(A), and 5 TH C IR

. R. 28.2.3. To

the contrary, we find Johnson’s submissions adequate to raise his issues on appeal.