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

_______________

PETER BERNARD JOHNSON,

ON BEHALF OF HIMSELF AND ALL PERSONS SIMILARLY SITUATED,

Plaintiff-Appellant,

VERSUS

ARAMCO SERVICES COMPANY; SAUDI ARABIAN OIL COMPANY,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

m 4:04-CV-642

_________________________

Before DAVIS, SMITH, and

DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Peter Johnson appeals the dismissal, 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 5TH CIR. R. 47.5, the court has determined that this opinion should not be published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 5TH CIR. R. 47.5.4.
2

I.

On August 23, 2001, Johnson, who was

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

Houstonhosted byAramco ServicesCompany

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

for a job as a Seismic Field Crew Supervisor

working in Saudi Arabia with Saudi Arabian

Oil Company (“SAO”).

SAO 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 ofservices, including assistance with recruiting. 

Importantly, ASC apparently recruitsSSalbeit infrequentlySSfor entities other

than SAO. Support for this is found in the

record in the form of ASC’sletter to the Equal

Employment Opportunity Commission

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

others, recruits employees for positions with

the Saudi 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.

According to Johnson, he was later informed 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 moved for dismissal based on a lack of

subject matterjurisdiction, pursuant to FED.R.

CIV. 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 corporation 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 jurisdiction. See Ramming v. United

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

Lack of subject matter jurisdiction may be

found [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 matters of fact which may be in

dispute. Ultimately, a motion to dismiss for

lack ofsubject matter jurisdiction should be

granted only if it appears certain that the

plaintiff cannot prove any set of facts in

support of his claim that would entitle

plaintiff to relief. 

Id.

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

consented to the dismissal of his claims against

SAO. 

3

 In addition to attacking the jurisdictional ruling,Johnson aversthat the dismissal with prejudice

wasinappropriatebecause a court without 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 employment, or otherwise to discriminate against, any individual

because ofsuch individual’s age, or to classify

or refer for employment any individual on the

basis of such individual’s age.” 29 U.S.C.

§ 623(b). Bridling this proposition is the notion that no federal statute applies extra-territorially unless Congress has expressly indicated its intent for such an application. See,

e.g., EEOC v. Arabian Am. Oil Co., 499 U.S.

244, 248 (1991). This canon of statutory construction “servesto protect against unintended

clashes between our laws and those of other

nations which could result in international

discord.” Id. Because the ADEA does not

evince any such intent, age discrimination

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

Based onthe presumptionagainst extra-territorial application, even Johnson concedes

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 assertsthat 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 classified Johnson according to his

age, violated the ADEASSindependently 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 ifthe foreign corporation for whom the

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

Johnson responds with a twist that significantly distinguishes 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 section 11(c) of the [ADEA] as an

employment agency with respect to all of its

activities whether or not such activities are for

employers covered by the act.” (Emphasis

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

the fact that SAO is not a covered employer

will not immunize it from its conduct with

respect to Johnson. 

The definition of “regularlyprocures” is not

necessarily self-evident, and although Johnson

made this argument in the district court, that

court did not demonstrably consider it. ASC

contends that any infrequent work it does for

other employers cannot 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 (3d 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 companies which are not controlled by U.S. firms.”).

5

See Brownlee v. Lear Siegler Mgmt. Servs.

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

Shrock v. Altru Nurses Registry, 810 F.2d 658,

660-61 (7th Cir. 1987); Goswami 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 record is notably underdeveloped on

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

thereby subjecting it to liability under the

ADEA. The only relevant evidence in the

record is ASC’s submission to the EEOC

indicating that it “infrequently recruits for

other entities,” and the hearsay assertion in

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

It is uncertain whether any of these other

entities is covered entities and whether ASC’s

activities are performed with the requisite

regularity. Nevertheless, in the absence of any

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

concluded to a certainty that Johnson cannot

prove any set of facts in support of his claim

that would entitle himto relief. See Ramming,

281 F.3d at 161. 

After further discovery, ASC may be able

to show entitlement to summary judgment by

conclusivelyrefuting the notionthat itsrecruiting activities for other entities cause it to be

subject 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 FED.R.APP. P.

(continued...)

6

(...continued)

28(a)(7), 28(a)(9)(A), and 5TH CIR.R. 28.2.3. To

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