United States District Court, E.D. Virginia, Alexandria Division
ISLAM E. SALMAN, Plaintiff,
SAUDI ARABIAN CULTURAL MISSION, Defendant.
C. CACHERIS JUDGE
matter is before the Court on Defendant Saudi Arabian
Cultural Mission (SACM)'s Motion to Dismiss [Dkt. 18].
Defendant claims that this Court lacks jurisdiction over
Plaintiff Islam E. Salman's claims under the Foreign
Sovereign Immunities Act (“FSIA”), 28 U.S.C.
§ 1602, et seq. The Court agrees. Accordingly,
the Court will grant Defendant's Motion and dismiss this
is “an organization created by the Saudi government in
1951 to administer programs and policies to meet the
educational and cultural needs of Saudis studying in the
United States.” Compl. [Dkt. 1] ¶ 9. “[T]he
Cultural Mission's primary function is to provide an
educational experience to Saudi Arabian citizen-students
studying in the United States that mirrors those services
provided by the Kingdom of Saudi Arabia to its citizens
enrolled in universities within the Kingdom, including paying
tuition, room/board, and health insurance and offering
guidance and counseling in course selection.” Mem. in
Supp. of Mot. to Dismiss [Dkt. 22] at 6.
of 2013, Defendant hired Plaintiff, a U.S. citizen, to serve
as an academic advisor. Both the offer of employment
Plaintiff received and the Personnel Guidelines provided with
that letter made numerous references to United States
employment laws. Plaintiff's duties included disbursing
financial aid to Saudi Arabian students in the United States,
evaluating students' continued eligibility for funding,
and visiting colleges and universities to “improv[e]
business processes and confirm[ ] rules regarding scholarship
eligibility.” Pl. Decl. [Dkt. 21-1] ¶ 8. Plaintiff
also “assess[ed] students' needs, goals, interests,
and prior academic experiences in order to guide students in
the design and implementation of a successful academic
plan.” Compl. [Dkt. 1] ¶ 12.
alleges that at some point during his employment, his
coworker - Ms. Luma Hawamdah - began sexually harassing him.
She allegedly made unwelcome advances, touching Plaintiff
inappropriately and requesting sexual favors. When Plaintiff
rejected her overtures, Ms. Hawamdah became hostile and
verbally abusive. Plaintiff moved to a different office in an
effort to avoid her, but the harassment continued.
15, 2015, Plaintiff sent a letter to his superior, Dr.
Mohammed Saleh Amaifi, detailing the alleged harassment in
accordance with Section 1.5 of SACM's Personnel
Guidelines. This led to a meeting on May 29, 2015, at which
Plaintiff presented his grievance to SACM's
administration. Rather than addressing the harassment,
however, SACM allegedly informed Plaintiff that he would be
required to sign a letter stating that the matter had been
resolved. SACM further threatened Plaintiff with termination
should he pursue the matter further. Under duress, Plaintiff
provided SACM with a letter stating that his personal issues
with Ms. Hawamdah had been resolved.
4, 2015, Plaintiff received a letter from a superior
chastising him for wasting SACM's time with his complaint
and stating that Plaintiff would face consequences if he
raised the issue again. Four days later, Plaintiff replied
with his own letter reiterating his claims of harassment and
asking the reopen the matter. Within hours, security arrived
at Plaintiff's office, instructed him to clear out his
work space, and proceeded to escort Plaintiff out of the
building. The following week, Plaintiff had a meeting with
SACM at which he received a final warning to drop the matter.
Plaintiff chose instead to retain counsel and pursue his
harassment claim. Defendant terminated his employment on June
16, 2015, refusing to provide Plaintiff with materials that
would have enabled him to obtain unemployment benefits.
November 3, 2015, Plaintiff filed a claim of discrimination
with the EEOC. The agency issued Plaintiff a Notice of Right
to Sue Letter on May 17, 2016, and Plaintiff filed the
instant action on August 12, 2016. On December 2, 2016,
Defendant moved to dismiss Plaintiff's Complaint,
claiming that the Court lacks subject matter jurisdiction
under the FSIA.
motion filed pursuant to Rule 12(b)(1) challenges the
Court's subject matter jurisdiction over the pending
action. The burden of proving subject matter jurisdiction
falls on the plaintiff. McNutt v. General Motors
Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Where, as
here, “a Rule 12(b)(1) motion challenge is raised to
the factual basis for subject matter jurisdiction . . . the
district court is to regard the pleadings' allegations as
mere evidence on the issue, and may consider evidence outside
the pleadings without converting the proceeding to one for
summary judgment.” Richmond, Fredericksburg &
Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th
Cir. 1991). If “‘the motion to dismiss is based
on a claim of foreign sovereign immunity, which provides
protection from suit and not merely a defense to liability, .
. . the court must engage in sufficient pretrial factual and
legal determinations to satisfy itself of its authority to
hear the case before trial.'” Velasco v.
Gov't Of Indonesia, 370 F.3d 392, 398 (4th Cir.
2004) (quoting Jungquist v. Sheikh Sultan Bin Khalifa Al
Nahyan, 115 F.3d 1020, 1027-28 (D.C. Cir.1997)).
FSIA provides the sole source of subject matter jurisdiction
in suits against a foreign state.” Velasco v.
Gov't of Indonesia, 370 F.3d 392, 397 (4th Cir.
2004). It holds that “a foreign state shall be immune
from the jurisdiction of the courts of the United States and
of the States” subject to certain enumerated
exceptions. 28 U.S.C. § 1604; see also Saudi Arabia
v. Nelson, 507 U.S. 349, 355 (1993) (“Under the
[FSIA], a foreign state is presumptively immune from the
jurisdiction of United States courts; unless a specified
exception applies, a federal court lacks subject-matter
jurisdiction over a claim against a foreign state.”).
concedes that, as a diplomatic and cultural mission of Saudi
Arabia recognized by the U.S. Department of State, Defendant
qualifies as a “foreign state” for purposes of
the FSIA. He argues, however, that two ...