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FERDMAN v. CONSULATE GEN. OF ISRAEL
March 16, 1998
LISA FERDMAN, Plaintiff,
CONSULATE GENERAL OF ISRAEL, Defendant.
The opinion of the court was delivered by: SHADUR
MEMORANDUM OPINION AND ORDER
Lisa Ferdman ("Ferdman") has sued the Consulate General of Israel ("Consulate"), asserting that she was the victim of sex discrimination when she was fired on August 19, 1997 (just three weeks after she had been hired) because she was pregnant. Based on its initial scrutiny of Ferdman's Complaint,
this Court sua sponte dismisses both the Complaint and this action for lack of subject matter jurisdiction.
It is of course true that the concept of actionable sex discrimination under Title VII of the Civil Rights Act of 1964 (which Ferdman claims as the predicate for her lawsuit) includes discrimination in employment (42 U.S.C. § 2000e-2(a)(1)
) "because of or on the basis of pregnancy" (Section 2000e(k)). If then the Consulate were suable for such a claimed violation of Title VII, Ferdman's Complaint would state a viable claim. But the problem here is that as a matter of law Title VII does not extend to cover the Consulate in the manner claimed by Ferdman.
To begin with, Section 2000e(b) defines "employer" as "a person engaged in an industry affecting commerce." That language of itself would have to be strained a good deal to encompass the ordinary operations of a consulate of a foreign government (Ferdman's short-term job was as a public affairs officer with the Consulate (Complaint P9)).
But even more fundamentally, even if that hurdle could be overcome it cannot be disputed that the Consulate is a "foreign state" as defined in 28 U.S.C. § 1603(a), which is part of the Foreign Sovereign Immunities Act ("Act"
)(see, e.g., Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1517 (9th Cir. 1987)). And Saudi Arabia v. Nelson, 507 U.S. 349, 123 L. Ed. 2d 47, 113 S. Ct. 1471 (1993) has definitively confirmed that:
1. Any plaintiff must look to the Act as "providing the sole basis for obtaining jurisdiction over a foreign state in the courts of this country" ( id. at 355, quoting Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443, 102 L. Ed. 2d 818, 109 S. Ct. 683 (1989)).
2. In the absence of a specified exception in the Act, federal courts lack subject matter jurisdiction over any claim against a foreign state (Saudi Arabia, id.).
3. Under Act § 1605(a)(2), such immunity does not extend to any action "based upon a commercial activity carried on in the United States by the foreign state" (507 U.S. at 356).
4. Act § 1603(d) "provides that a commercial activity may be 'either a regular course of commercial conduct or a particular commercial transaction or act,' the 'commercial character of [which] shall be determined by reference to' its 'nature,' rather than its 'purpose'" (id.).
As Saudi Arabia, 507 U.S. at 359-60 then went on to establish, the Act codifies the so-called "restrictive" theory of foreign sovereign immunity, which confers such immunity as to the state's "sovereign or public acts (jure imperii), but not as to those that are private or commercial in character (jure gestionis)." Consulate activities are of course the epitome of "sovereign or public acts"--by definition they cannot be undertaken by private individuals.
Accordingly, as stated at the outset of this opinion, this federal court has no more power to adjudicate liability for the exercise of the internal affairs of the Consulate than it would be in a position to control any other sovereign activities of the State of Israel. Hence Ferdman's Complaint and this action are indeed dismissed for lack of subject matter jurisdiction.
Senior United States District Judge
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