The opinion of the court was delivered by: Stanley S. Harris, District Judge.
Plaintiff brings this breach of contract and defamation action
against the United Arab Emirates ("U.A.E."), the Embassy of the
United Arab Emirates ("the Embassy"), and three individuals
acting in their official capacities on behalf of the U.A.E.
— Saif Rashid Al-Suwaidi ("Al-Suwaidi"), Magid Al-Khazragi
("Al-Khazragi"), and Nahyan bin Mubark AL-Nahyan ("Al-Nahyan").
Before the Court are defendants' motion to dismiss the amended
complaint and related pleadings.*fn1 The Court treats this
motion to dismiss as being made on behalf of all five
defendants.*fn2 Upon consideration of the sufficiency of
the complaint, the Court grants defendants' motion to dismiss for
lack of personal jurisdiction as to Al-Suwaidi, Al-Khazragi, and
Al-Nahyan, but denies the remainder of the motion. "Findings of
fact and conclusions of law are unnecessary on decisions of
motions under Rule 12 or 56." Fed.R.Civ.P. 52(a); Summers v.
Department of Justice, 140 F.3d 1077, 1079-80 (D.C.Cir. 1998).
Nonetheless, the Court sets forth its reasoning.
Plaintiff is an Egyptian citizen and a domiciliary of Virginia.
For thirteen years, he was employed as an auditor of accounts in
the U.A.E. From January 1993 to February 1996, plaintiff was
employed as an auditor in the Cultural Division of the Embassy in
Washington, D.C. He claims that he was dismissed from his
position without apparent cause or notice, and that his discharge
was influenced by his discovery of damaging information about
some of his superiors at the Embassy. In June 1996, the Embassy
rehired plaintiff in the military attache's office. Plaintiff
claims that this employment was on an ad hoc basis and was
intended to dissuade him from seeking a legal remedy for his
previous dismissal. Plaintiff claims that he was summarily
dismissed in August 1996, when he refused to discontinue his
efforts to file a lawsuit. On August 22, 1996, plaintiff filed
his original complaint against the UAE., the Embassy, Al-Suwaidi
as Director of Financial and Administrative Affairs, and
Al-Khazragi as Director of the State Audit Institution, alleging
breach of contract and defamation. In October 1996, plaintiff
amended his complaint to add Al-Nahyan, Minister of Higher
Education and Scientific Research furthermore, plaintiff alleged
that defendants attempted to compel him to withdraw his original
complaint, and when he refused, plaintiff's wife was dismissed
from her position at the Embassy. Defendants U.A.E., the Embassy,
and Al-Suwaidi, through their attorney, stipulated to service of
the original complaint on October 10, 1996. On February 19, 1997,
defendants Al-Khazragi and Al-Nahyan also stipulated to service
After the amended complaint was filed, but before defendants
Al-Khazragi and Al-Nahyan stipulated to service, the U.A.E., its
Embassy, and defendant Al-Suwaidi filed a motion to dismiss to
the original complaint. An opposition and a reply followed.
Thereafter, all five defendants filed a motion to dismiss the
amended complaint, seeking essentially the same relief as
requested in the previously filed motion.
Defendants assert six bases for dismissing some or all of
plaintiff's claims: (1) lack of subject matter jurisdiction as to
all the claims under the Foreign Sovereign Immunities Act
("FSIA"); (2) lack of personal jurisdiction over all the
defendants; (3) lack of subject matter jurisdiction as to
plaintiff's defamation claim under the FSIA; (4) preclusion of
judicial review under the Act of State doctrine; (5) lack of
jurisdiction because the acts occurred within a foreign mission;
and (6) immunity for defendants Al-Suwaidi, Al-Khazragi, and
Al-Nahyan under the doctrine of Head of State immunity. The Court
finds no merit in defendants' six defenses, except the lack of
personal jurisdiction as to the three individual defendants.*fn3
I. Subject Matter Jurisdiction
The FSIA, codified at 28 U.S.C. § 1330, 1391, 1441, 1602-1611
(1994), is the "sole basis for obtaining jurisdiction over a
foreign state in our courts," Argentine Republic v. Amerada Hess
Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818
(1989). It therefore must be applied in every action involving a
foreign state defendant. Verlinden B.V. v. Central Bank of
Nigeria, 461 U.S. 480, 489, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983).
Under the FSIA, a foreign state is immune from the jurisdiction
of U.S. courts unless the challenged conduct falls within certain
limited statutory exceptions, as set forth in 28 U.S.C. § 1604.
Argentine Republic, 488 U.S. at 434, 109 S.Ct. 683. The
scope of sovereign immunity for a foreign state extends to any
political subdivisions, instrumentalities, and agencies of that
state, McKesson Co . v. Islamic Republic of Iran, 52 F.3d 346,
351 (D.C.Cir. 1995); individuals committing acts within their
official capacities are considered agencies or instrumentalities
of a foreign state. Jungquist V. Sheikh Sultan Bin Khalifa Al
Nahyan, 115 F.3d 1020, 1027 (D.C.Cir. 1997); El-Fadl v. Central
Bank of Jordan, 75 F, 3d 668, 671 (D.C.Cir. 1996); see Underwood
v. The United Republic of Tanzania, 1995 WL 46383, at *2 (D.D.C.
Jan.27, 1995) (an embassy of a sovereign nation is a foreign
state); TIFA, Ltd. v. Republic of Ghana, 1991 WL 179098, at *7
(D.D.C. Aug.27, 1991) (embassy of Ghana is an instrumentality of
The Court concludes, and defendants do not dispute, that all
five defendants fall within the definition of "a foreign state"
for purposes of the FSIA, and that the FSIA therefore applies to
this action as to all five defendants. The Court thus must
determine whether subject matter jurisdiction exists under the
A. "Commercial activity" exception
Under the FSIA, the plaintiff first must produce evidence that
shows an exception to the FSIA applies; the foreign state then
has the ultimate burden of persuasion that the exception does not
apply. Princz v. Federal Republic of Germany, 26 F.3d 1166, 1171
(D.C.Cir. 1994). The activity upon which this action is based is
the U.A.E.'s employment and termination of plaintiff. Plaintiff
contends that defendants' conduct with respect to his employment
falls within the "commercial activity" exception of the FSIA,
codified at 28 U.S.C. § 1605(a)(2). That section provides:
(a) A foreign state shall not be immune from the
jurisdiction of courts of the United States or of
the States in any case —
(2) in which the action is based upon a commercial
activity carried on in the United States by the
foreign state; or upon an act performed in the United
States in connection with a commercial activity of
the foreign state elsewhere; or upon an act outside
the territory of the United States in connection with
a commercial activity of the foreign state elsewhere
and that act causes a direct effect in the United
The Court must therefore determine whether defendants' actions
with respect to plaintiff's employment are ...