Case of the Day: Ashraf-Hassan v. Embassy of France

The case of the day is Ashraf-Hassan v. Embassy of France (D.C. Cir. 2015). Saima Ashraf-Hassan, a Pakistani national, was employed by the French embassy. She brought a claim of workplace harassment. The embassy answered the complaint without raising sovereign immunity and participated in discovery. Just before trial, the embassy sought to dismiss the case on sovereign immunity grounds. The district court denied the motion, and the embassy appealed.

On appeal, the court held, correctly, that the commercial activity exception to FSIA applied because Ashraf-Hassan was a mere administrative employee, not a civil servant and not an employee with any decisionmaking authority. Because the claim arose in the course of Ashraf-Hassan’s employment, the embassy was not immune.

I’m working on a case that raises this issue right now, so I have a few authorities at my fingertips to expand on the point. First, the legislative history is clear. Here is a House committee report on the FSIA from the time of its enactment:

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 employment or engagement of laborers, clerical staff or public relations or marketing agents … would be among those included within the definition [of commercial activity].

Many cases have reached this conclusion. For example, in Holden v. Canadian Consulate, 92 F.3d 918 (9th Cir. 1996), the court held that a Canadian consulate’s employment of an American as a commercial officer was a commercial activity. In Segni v. Commercial Office of Spain, 835 F.2d 160 (7th Cir. 1987), the Seventh Circuit reached the same result regarding employment of a marketing agent. And in El-Hadad v. United Arab Emirates, 496 F.3d 658 (D.C. Cir. 2007), the court reached the same result where an embassy employed a national of a third country as an accountant.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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