Johnson v. Aramco Services Co, et al

United States Court of Appeals
Fifth Circuit
F I L E D
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 de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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2
I.
On August 23, 2001, Johnson, who was
then fifty-seven years old, attended a job fair in
Houston hosted by Aramco Services Company
(“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 in-
corporated in Delaware. ASC states that it
provides SAO with a range of services, includ-
ing assistance with recruiting.
Importantly, ASC apparently re-
cruitsSSalbeit infrequentlySSfor entities other
than SAO. Support for this is found in the
record in the form of ASC’s letter 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 subsidiar-
ies.
According to Johnson, he was later in-
formed by Ellmaker that he would not be se-
lected for the job, allegedly because of his ad-
vanced age. He filed a complaint with the
EEOC, was granted a right to sue letter, and
sued ASC and SAO alleging, inter alia, vio-
lations of the Age Discrimination in Employ-
ment Act (“ADEA”), 29 U.S.C. § 621 et seq.
ASC moved for dismissal based on a lack of
subject matter jurisdiction, 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 re-
view 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 bas-
es]: (1) the complaint alone; (2) the com-
plaint supplemented by undisputed facts
evidenced in the record; or (3) the com-
plaint 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 of subject matter jurisdiction should be
granted only if it appears certain that the
plaintiff cannot pro ve any set of facts in
support of his claim that would entitle
plaintiff to relief.
Id.
2 That this logic indisputably applies with re-
spect to SAO, Johnson does not disagree, and he
consented to the dismissal of his claims against
SAO.
3 In addition to attacking the jurisdictional rul-
ing, Johnson avers that the dismissal with prejudice
was inappropriate because a court without jurisdic-
tion cannot make a ruling on the merits. Because
the district court erred in its jurisdictional analysis,
we do not reach this contention.

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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 other-
wise to discriminate against, any individual
because of such 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 no-
tion that no federal statute applies extra-terri-
torially unless Congress has expressly indi-
cated 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 con-
struction “serves to 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 for-
eign corporations who employ American citi-
zens to work aborad.4
Based on the presumption against extra-ter-
ritorial 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 nec-
essarily immunize it from suit.
Johnson asserts that 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 pro-
cess 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 consid-
ered an employment agency for purposes of
the act if the foreign corporation for whom the
recruiter works is not a covered employer un-
der the ADEA.5
Johnson responds with a twist that signifi-
cantly distinguishes the cases on which ASC
relies. Under 29 C.F.R. § 1625.3, an employ-
ment agency that “regularly procures employ-
ees for at least one covered employer [] quali-
fies 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 co vered by the act.” (Emphasis
added.) Consequently, if ASC “regularly” re-
cruits 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 “regularly procures” 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 con-
trolled 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).

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4
meeting the needs of a seasonal industry, albeit
once a year.”
The record is notably underdeveloped on
the question whether ASC “regularly pro-
cures” 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 recruits for com-
panies 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 can-
not 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 him to relief. See Ramming,
281 F.3d at 161.
After further discovery, ASC may be able
to show entitlement to summary judgment by
conclusively refuting the notion that its recruit-
ing activities for other entities cause it to be
subject to suit under the ADEA. Given the
current record, however, Johnson has ade-
quately pleaded facts sufficient to maintain
jurisdiction. The judgment of dismissal is
therefore REVERSED, and this matter is RE-
MANDED.6
6 ASC devotes considerable ink to the conten-
tion that Johnson, proceeding pro se, has waived
his arguments by failing to brief them adequately.
Specifically, ASC is apparently dismayed by John-
son’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 ade-
quate to raise his issues on appeal.

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