Mission Employee: Status for Immunity Purposes
On December 22, 2010, the United States Court of Appeals for the Second Circuit in New York City affirmed the ruling of the District Court for the Southern District of New York to dismiss the case of Hijazi v. Permanent Mission of Saudi Arabia to the United Nations, docket number 10-0904, due to a lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA).
Plaintiff had been employed as an Advisor to the Permanent Mission of Saudi Arabia to the United Nations, and had filed suit, claiming she had been subjected to sexual harassment, discrimination by reason of her gender and national origin, and unlawful retaliation. Plaintiff asserted that the work she did for the mission was generally clerical, and consequently private or commercial in character. Therefore, plaintiff argued that under the Foreign Sovereign Immunities Act, the Mission of Saudi Arabia should not enjoy immunity according to the commercial activity exception to the FSIA.
The mission contended that the question of immunity was dependent upon its activities and functions rather than an individual employee. The court noted that
It is undisputed that Plaintiff attended and took notes at diplomatic meetings, conducted research, wrote memoranda, and, on one occasion, spoke on behalf of the Mission. Her duties were thus in service of the Mission's governmental function.As a result, the court determined that the matter did not meet the commercial activity exception to the FSIA, and rejected plaintiff's complaint for lack of subject matter jurisdiction. -- Sara Harr, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Sat, / Embassy Law Link
Attached Diplomatic Premises Released
At the request of the U.S. government, Iran's diplomatic properties in the United States were released from attachment by the United States Court of Appeals for the District of Columbia Circuit. Section 201 of the Terrorism Risk Insurance Act precluded the attachments, the court determined in December 3, 2010 with a detailed opinion and concurring opinion.
The post-judgment attachment was intended to satisfy an award under terrorism legislation which removes some of the jurisdictional protections afforded by the Foreign Sovereign Immunities Act. In Bennett v. Iran, docket no. 09-5147, the court noted:
The United States has held Iran's diplomatic and consular properties for the past thirty years pursuant to Article 45 of the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95, which requires signatory states to "respect and protect" the premises and property of a mission if diplomatic relations are severed or a mission is recalled, and the Foreign Missions Act, 22 U.S.C. § 4305(c)(1) (2006), which authorizes the Secretary of State to "protect and preserve" the property of a foreign mission that has ceased conducting diplomatic activities in the United States.The judgment creditor believed that the rental of the properties by their custodian, the United States, should remove them from the protection under the Vienna Convention. The court rejected that notion. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Mon, / Embassy Law Link