The case of the day is Harmouche v. Consulate General of the State of Qatar (S.D. Tex. 2018). Gus Harmouche worked for the Qatari consulate in Houston as a public relations manager. He claimed that the consulate discriminated against him on account of his age and his religion, ultimately terminating his employment. The consulate moved to dismiss for lack of jurisdiction.
There was no dispute that the consulate was a foreign state for purposes of the FSIA or that the action was based upon Harmouche’s employment. The question was whether the employment was commercial, so as to bring the case within the commercial activities exception to foreign sovereign immunity.
The court correctly looked to the FSIA’s legislative history. The House Report that accompanied the bill in the 1970shad this to say:
[P]ublic 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”].
To determine the side of the line where Harmouche’s employment fell, the court correctly looked to El-Hadad v. United Arab Emirates, 496 F.3d 658 (D.C. Cir. 2007). In my view El-Hadad is the best precedent on this issue, because unlike some of the other cases it gives courts clear guidance about how to classify employees. First, ask if the employee is a civil servant. If so, then the foreign state wins. If not, then go to step two, which, when reduced to its essence, asks about the nature of the employment. The court found that Qatar’s conclusory assertion that Harmouche was a civil servant, without any reference to Qatari law, was insufficient, particularly because Harmouche denied being a civil servant and he was not a Qatari national. And the court, considering the nature of the employment (answering the telephone, driving a car, opening doors, making copies, serving coffee, and, according to Qatar, “assisting Qatari delegation in Houston, mak[ing] hotel reservations, supervis[ing] purchases, organizing events, assisting diplomats, and emergency protocol during natural disasters”), found that Harmouche fell on the commercial rather than the official side of the line. His were not governmental or policy tasks.
For these reasons, the judge denied the motion to dismiss.
I think this was an easy case in light of El-Hadad and similar cases. It seems to me that the lines between commercial and non-commercial employment are fairly clearly drawn. The next field of battle that we will see in the cases, in my view, is the “based on” requirement: if a foreign state could show that the action is not based on the plaintiff’s employment, then the commercial or non-commercial nature of the employment is no longer dispositive. For instance, suppose Qatar said that it had made a policy forbidding it to employ people over a certain age, and then claimed the case was based on its policy decision rather than the particular plaintiff’s employment? See Shih v. Taipei Econ. & Cultural Rep. Office, 693 F. Supp. 2d 805 (N.D. Ill. 2010).