[00:00:01] Speaker 03: Case number 14-7075, Zina Ashraf Hassan versus Embassy of France and the United States Appellant. [00:00:09] Speaker 03: Mr. Chaunier for the Appellant, Mr. Deva for the Appellate. [00:00:43] Speaker 00: May it please the court. [00:00:45] Speaker 00: My name is Pierre Chaunet. [00:00:47] Speaker 00: I'm representing the Embassy of France, and I will reserve three minutes of my time. [00:00:53] Speaker 00: This is a hostile war environment case. [00:00:57] Speaker 00: I will not go into the details of the allegations. [00:01:00] Speaker 00: I think it's suffice to say that they are very grave and that they would constitute a hostile war environment if true. [00:01:07] Speaker 00: The question before the court today is whether [00:01:12] Speaker 00: this case should be – whether the French embassy should be immune from jurisdiction under the Foreign Sovereign Immunities Act. [00:01:22] Speaker 00: We believe that although at the time, at the beginning of this case, it appeared that the embassy was not immune, we do believe that a lot of things occurred since then that makes the case that the embassy is immune. [00:01:43] Speaker 00: Initially, the plaintiff in that case filed two kinds of claims. [00:01:52] Speaker 00: One was based on the breach of contract and the other one was the type of a tort claim based on the harassment. [00:02:01] Speaker 00: Initially, we conceded right away that Mrs. Ashraf, the plaintiff in this case, is not a governmental employee. [00:02:09] Speaker 00: Therefore, the first kind of claim was clearly based on the contract, and therefore the immunity of the embassy didn't apply. [00:02:17] Speaker 00: Likewise, in regard to the tort claims, Mrs. Ashraf alleged that [00:02:24] Speaker 00: One kind of damages out of that tort claim was the loss of employment. [00:02:30] Speaker 00: So therefore, here again, there was a clear link between the tort claim and the commercial activity of the embassy. [00:02:43] Speaker 00: However, since then, three major developments occurred. [00:02:47] Speaker 00: The first one is the fact that the lower court dismissed the breach of contract claim. [00:02:54] Speaker 00: So the important consequence of that dismissal is the fact that now in regard to the tort claim, Mrs. Ashraf cannot any longer rely on the lust of her employment. [00:03:06] Speaker 00: She has to rely on the torturous action of her co-workers. [00:03:10] Speaker 00: And in turn, she has to make the French embassy vicariously liable for that torturous action in order to, again, connect it to the commercial activity. [00:03:24] Speaker 00: And this is where the second development takes all its importance. [00:03:29] Speaker 00: The second development is a recent decision of the Supreme Court in the Vance case, a decision that occurred in June of 2013. [00:03:39] Speaker 00: And that decision is very important because it changed the definition of [00:03:46] Speaker 00: supervisors in order to create vicarious liability on the part of the embassy. [00:03:53] Speaker 00: Prior to Vance, it was sufficient that the adage harasser had some kind of supervisory authority. [00:04:01] Speaker 00: It was enough if that supervisor was supervising the work of that plaintiff. [00:04:08] Speaker 00: With Vance, it's no longer the case. [00:04:09] Speaker 00: The Supreme Court made it clear that [00:04:13] Speaker 00: You need to show some evidence that the alleged arrester had some tangible authority over the plaintiff, and the Supreme Court was very specific. [00:04:25] Speaker 00: That includes only hiring, firing, or demoting. [00:04:30] Speaker 00: In this case, there are none. [00:04:32] Speaker 00: But now I come to the third development, which is probably even more consequential than the two others. [00:04:39] Speaker 00: It's the fact that at the end of discovery, we have a lot of contradictory statements from the plaintiff on key issues that touch either both the immunity claim of the embassy as well as its motion for summary judgment. [00:04:58] Speaker 01: But that's the third. [00:05:01] Speaker 01: aspect is why you think you should prevail on summary judgment. [00:05:05] Speaker 01: I'm not sure that goes to the commercial activity exception here, because it does seem that the plaintiff here was in a purely administrative position, was not a civil servant, was not involved with governmental decisions. [00:05:20] Speaker 01: I think you agree with all that. [00:05:21] Speaker 01: And once you agree with all that, [00:05:25] Speaker 01: It seems like the commercial activity exception applies. [00:05:27] Speaker 01: You may prevail, think you should prevail in summary judgment or prevail at trial, but I'm not sure how we could get out of saying the commercial activity exception applies under our precedence given the status of the employee. [00:05:42] Speaker 01: That's what I'm not understanding. [00:05:43] Speaker 00: Well, Your Honor, the fact that she's a government employee is not enough. [00:05:49] Speaker 00: She has to show also that her claim is based on the contract. [00:05:55] Speaker 00: on the commercial activity of the embassy. [00:05:58] Speaker 01: But the claim depends on her employment with the embassy. [00:06:03] Speaker 00: The claim depends on her employment with the embassy, Your Honor. [00:06:07] Speaker 00: I agree. [00:06:07] Speaker 00: But now there is only one claim that is remaining. [00:06:09] Speaker 00: It's the harassment claim. [00:06:11] Speaker 00: And for that claim to be related to the commercial activity of the embassy, she is not alleging that it's the embassy that is harassing her. [00:06:19] Speaker 00: She's alleging it's the co-workers who harassed her. [00:06:23] Speaker 00: I understand. [00:06:24] Speaker 00: And if I may continue, for that harassment of her co-workers, to be included to the embassy, she has to show Vicarious liability. [00:06:33] Speaker 00: And for that purpose, she has to show that these alleged harassers were supervisors. [00:06:39] Speaker 00: And that's where the contradictions come into play, because among several of these contradictions, she's giving us a statement, statements that these alleged harassers didn't have the authority to take these tangible actions on the events and therefore are not [00:06:57] Speaker 00: supervisors, but she's also a gene based on the prior test that they were. [00:07:02] Speaker 00: So that's where these contradictions are very important, likewise. [00:07:06] Speaker 04: But the commercial exception applies to actions that are based on the commercial activity, correct? [00:07:16] Speaker 04: So her claims here flow out of being employed by the embassy. [00:07:24] Speaker 04: And that fact doesn't change, even if some of the actions are dismissed. [00:07:35] Speaker 00: Well, Your Honor, I would agree that, again, in regard to the breach of contract claim, it is clearly based on the commercial activity of the embassy. [00:07:46] Speaker 00: But again, we are talking about harassment claim. [00:07:49] Speaker 04: I'd like to make a connection with the... But even as to the harassment claim, [00:07:54] Speaker 04: you know, doesn't that flow from her having been employed by the embassy? [00:07:59] Speaker 04: And that's what invokes the commercial exception. [00:08:04] Speaker 00: Yes, but it is a little bit similar as the decision of this Court in El Adat. [00:08:12] Speaker 00: In El Adat, there was a breach of contract claim, but there was also a defamation claim. [00:08:17] Speaker 00: And the court, without any analysis or explanation, took jurisdiction over the defamation claim, because allegedly, the defamation caused the termination of the contract. [00:08:32] Speaker 00: But here now, we are in a different situation. [00:08:34] Speaker 00: And I will submit that in El Alda, if the contract, for example, if the plaintiff had come up with only [00:08:42] Speaker 00: a defamation claim that is the plaintiff still being employed by that foreign government. [00:08:48] Speaker 00: I would submit that the court would have said, well, the defamation claim, the embassy has to be immune from the defamation claim because it's no longer related to the contract. [00:08:59] Speaker 00: And it's even more important because when you look at the FISA, the Foreign Sovereign Immunities Act, it's clear that jurisdiction over [00:09:11] Speaker 00: The personal injury case is very limited. [00:09:14] Speaker 00: In fact, when you look at the, I think it's section five that deals with personal injury, it's very limited only basically to personal injury in case of an accident. [00:09:26] Speaker 00: So likewise, when you look at the decision of worldwide minerals of this court, [00:09:37] Speaker 00: Court didn't extend the waiver to anything else than the contract. [00:09:45] Speaker 00: I mean, in worldwide minerals, there were actually a lot of torts. [00:09:49] Speaker 00: And the court there, it went even farther than in El Arda. [00:09:52] Speaker 00: It basically said, no, it cannot include claims for torts. [00:09:57] Speaker 00: Nobody anticipated them. [00:10:00] Speaker 00: And therefore, same thing when you look at the commercial exception. [00:10:04] Speaker 00: The commercial exception. [00:10:06] Speaker 00: is clearly set up to cover only something that is directly related to a contract, a commercial activity. [00:10:20] Speaker 00: Now, the reason why we are here, it's not because Mrs. Ashraf is telling us that she didn't make all these contradictions, and I'm talking contradictory statements. [00:10:31] Speaker 00: She is not generally disputing that she made them. [00:10:36] Speaker 00: We are here simply because she's arguing that it doesn't make any difference. [00:10:41] Speaker 00: that she made these contradictions because the lower court doesn't have the authority to consider them. [00:10:48] Speaker 00: And the lower court agreed with her. [00:10:50] Speaker 00: The lower court relied on the decision in the liberty lobby. [00:10:55] Speaker 00: But Your Honor, it's clearly liberty lobby doesn't give us any guidance, because in liberty lobby, we were in a typical case where the plaintiff is saying A and the defendant is saying B. And as long as A [00:11:10] Speaker 00: is reasonable, the case has to go before a jury. [00:11:14] Speaker 00: But we are not in that type of case, Your Honor. [00:11:17] Speaker 00: We are in a type of case where the plaintiff is saying A and B. So therefore, Liberty Lobby didn't give any guidance as to what to do, what the lower court should do. [00:11:27] Speaker 00: Should the lower court believe A or B? [00:11:30] Speaker 00: For this, we have to look at two other cases. [00:11:33] Speaker 00: One, [00:11:34] Speaker 00: is a decision from the Supreme Court in Scott v. Harris that set the standard of review for the purpose of a summary motion judgment. [00:11:47] Speaker 00: And then we also need to look at the decision of this court in Phoenix that set the same standard of review, but for the purpose of the motion on the immunity. [00:12:00] Speaker 00: The two standards are the same. [00:12:02] Speaker 00: Both of them would require a weighing of the evidence, and it's obvious why. [00:12:08] Speaker 00: If you look at the case of Scott versus Harris, like in our case, the plaintiff was showing two different stories. [00:12:16] Speaker 00: The case, the issue was whether the police used excessive force, and the plaintiff was showing [00:12:23] Speaker 00: Obviously the police used excessive force because I was driving without creating any danger to anybody. [00:12:30] Speaker 00: I was driving like if I were taking my driving test. [00:12:33] Speaker 00: And then there was another story. [00:12:36] Speaker 00: because in that case there was a video, a video showing a completely different story as Judge Scalia said. [00:12:42] Speaker 00: The video showed that it was a chase of the type of Hollywood type chase where everybody was in danger. [00:12:51] Speaker 00: So Judge Scalia and the majority opinion in [00:12:54] Speaker 00: in that Scott v. Harris held that when you are confronted with a situation like this, when the plaintiff is giving us a story that is blatantly contradicted by the record, you cannot take it as true for the purpose of summary judgment. [00:13:09] Speaker 00: You have to go behind it and weigh the evidence, weigh these contradictions. [00:13:14] Speaker 00: And likewise, this court in Phoenix, again there, not for the purpose of summary judgment, but for the purpose of ruling on the motion for immunity of the foreign government, ruled that when the foreign government has changed the factual underpinnings [00:13:31] Speaker 00: of the exception to its immunity, the court cannot rely – I think the court cannot merely rely on the allegations of the plaintiff to defeat the immunity, but the court has to go beyond that, has to do a factual investigation, and therefore weigh on the evidence. [00:13:52] Speaker 00: So, Your Honor, [00:13:55] Speaker 00: This is what we are asking just the court to apply the same standard as, again, and also that this court applied for the purpose of summary judgment motion in the case of Ben Cattle. [00:14:06] Speaker 00: That's exactly the same situation, even worse in our case in the way that we have contradictions from the plaintiff. [00:14:14] Speaker 00: In Ben-Katel, it was just the fact that the position of the plaintiff was overwhelmingly contradicted by the record. [00:14:21] Speaker 00: We can hear it even more. [00:14:22] Speaker 00: It's worse. [00:14:23] Speaker 00: It's because the plaintiff is giving us conflicting statements. [00:14:27] Speaker 00: And likewise, we will request that standard to be applied like the court did in the worldwide minerals, and we feel confident, Your Honor, with that proper application of the [00:14:38] Speaker 00: of the standard of review that the court would find that these two motions of the embassy should be granted. [00:14:46] Speaker 00: If you have any questions, I would like to resume my time. [00:14:50] Speaker 04: Thank you, Mr. Chabert. [00:14:51] Speaker 00: Thank you. [00:15:05] Speaker 02: May it please the court, Catherine Davé for appellee. [00:15:09] Speaker 02: The embassy acknowledged the district court's jurisdictions over all of Ashraf Hassan's complaints without reservation in its answer to the complaint on page 57 of the appendix. [00:15:21] Speaker 02: This admission was a waiver pursuant to 1605A1. [00:15:26] Speaker 02: Congress explained in the legislative history of the Foreign Sovereign Immunities Act at H.R. [00:15:31] Speaker 02: 94-1487 that failure to raise sovereign immunity in a responsive pleading is a waiver. [00:15:38] Speaker 02: The embassy failed to raise immunity amongst [00:15:41] Speaker 02: the defenses it listed at pages 54 and 55 of the appendix, but it went beyond merely failing to waive immunity. [00:15:49] Speaker 02: It explicitly and without reservation conceded that the district court had jurisdiction over all of Oshawa for some reason. [00:15:56] Speaker 04: You keep saying without reservation, but I seem to recall that there was a condition. [00:16:02] Speaker 02: That is a different and subsequent statement that the embassy made in its first motion to dismiss. [00:16:08] Speaker 02: I'm referring to its answer to the complaint, which was its first response of fleeting at page 57 of your appendix in which the embassy wrote, the district court has jurisdiction over this matter. [00:16:21] Speaker 02: That statement by the embassy was in response to Ashraf Hassan's statement in her complaint that the embassy was not immune because [00:16:31] Speaker 02: of the choice of law clause in the contract, which constituted a waiver of immunity, and because of the commercial activities exception. [00:16:39] Speaker 02: By failing to refute either of those allegations at that time, the embassy not only conceded that it [00:16:47] Speaker 02: was not immune. [00:16:48] Speaker 02: It also provided evidence of its intent at the time that it signed the contract with Ashraf Hassan, that at that time, it recognized it was subject to United States law. [00:16:59] Speaker 02: Again, at page 64 of the appendix, which is also in the answer to the complaint, the embassy again wrote that the contract – the embassy admitted that the contract was for locally recruited employees and that local jurisdiction applied. [00:17:16] Speaker 01: If I don't go on the waiver ground, what's your best argument? [00:17:22] Speaker 02: Well, that's a bit like Sophie's choice, Your Honor, but the commercial activity exception. [00:17:28] Speaker 02: undoubtedly applies here as the district court held and conveniently Judge Brown wrote in her first footnote to Al-Haddad that separating the kinds of claims in the commercial activities exception would defy logic. [00:17:47] Speaker 02: The question for the court, when determining whether the commercial activities exception applies, is what were the employee's job duties. [00:17:56] Speaker 02: First, was she a civil servant, which the embassy has conceded repeatedly that she was not? [00:18:00] Speaker 02: And second, what was the nature of her duties? [00:18:03] Speaker 02: Again, the embassy repeatedly emphasized that her position was entirely administrative. [00:18:10] Speaker 02: In addition, the embassy makes an error. [00:18:13] Speaker 02: Her claims were not different. [00:18:15] Speaker 02: The claims that were dismissed by the district court were not breach of contract claims. [00:18:20] Speaker 02: They were Title VII claims as well. [00:18:22] Speaker 02: All of the claims were up for the district court for Title VII. [00:18:24] Speaker 01: So if we agree with you on that, we don't need to wade into the waiver? [00:18:27] Speaker 02: Correct. [00:18:31] Speaker 02: In addition, the embassy would have you take appellate jurisdiction over the lower court's decision on motion for summary judgment and the request for reconsideration of the same. [00:18:44] Speaker 02: The courts only exercise pendant jurisdiction where substantial considerations of fairness or efficiency demanded, such as where the orders are inextricably intertwined or where review of the pendant issue is necessary to ensure meaningful review of the properly appealable issue. [00:19:01] Speaker 02: The embassy never raised immunity in any of its pleadings on the motion for summary judgment, the request for reconsideration of the same, or in response to the discovery orders. [00:19:15] Speaker 02: It is in no way related to the issues properly before the court today. [00:19:20] Speaker 02: In addition, as the court established in Cohen, [00:19:25] Speaker 02: The appellate court should not take jurisdiction over orders that are reviewable on appeal from final judgment. [00:19:30] Speaker 02: And discovery orders, as well as decisions on summary judgment, are reviewable after final judgment. [00:19:37] Speaker 02: So the court does not have authority to take jurisdiction over the discovery orders and the decision on summary judgment today. [00:19:46] Speaker 02: The court has no further questions. [00:19:49] Speaker 04: Nope. [00:19:49] Speaker 04: It appears there are none. [00:19:50] Speaker 04: Thank you. [00:19:51] Speaker 04: Thank you. [00:19:56] Speaker 04: Mr. Turner, you have one minute. [00:19:58] Speaker 00: Thank you, Your Honor. [00:20:04] Speaker 00: contention that we didn't raise the immunity in the answer. [00:20:07] Speaker 00: It's true that we didn't raise it in the answer, but it's undeniable that that answer was filed at the same time and together with our motion to dismiss. [00:20:20] Speaker 00: And it's clear, the first page of the motion to dismiss, that's where we included the waiver, the qualification, and the condition for it. [00:20:28] Speaker 00: So I think it's a little bit a stretch for the [00:20:31] Speaker 00: the plaintiff to argue that we should draw some consequences from the fact that we didn't repeat it in the answer. [00:20:40] Speaker 00: But this, assuming that the court would find that we waived it, I think that would not be the end of the issue, because we are not talking about only the personal jurisdiction [00:20:59] Speaker 00: of the court over the French embassy. [00:21:02] Speaker 00: We are also talking about subject matter jurisdiction. [00:21:05] Speaker 00: And it's clear that subject matter jurisdiction cannot be waived, that the conduct of a party cannot have any impact on subject matter jurisdiction. [00:21:18] Speaker 00: I think the decisions of the Supreme Court on that point is a group as well as covering that, again, whether or not the embassy waives [00:21:29] Speaker 00: its immunity you still have to look at whether the court has subject matter jurisdiction and for that you have to look at whether the claim is based on the commercial activity and likewise I think in conflict the court said that subject matter jurisdiction can be raised at any time. [00:21:46] Speaker 00: Now there is also [00:21:53] Speaker 00: I'd like to go back just a minute above the claim that everything is based on the commercial activity. [00:22:03] Speaker 00: Again, at this time, the only thing that remains before the court is the harassment by co-workers. [00:22:12] Speaker 00: that activity of these co-workers can be connected to the commercial activity of the embassy only if the embassy would be responsible for it. [00:22:22] Speaker 00: And in turn, the embassy can be responsible for it only if Ms. [00:22:28] Speaker 00: Ashraf can show that these alleged harassers were supervisors. [00:22:32] Speaker 00: Thank you, counsel. [00:22:34] Speaker 00: We understand your argument. [00:22:38] Speaker 04: The case will be submitted.