                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                   F I L E D
                            In the                                  May 31, 2005
       United States Court of Appeals                         Charles R. Fulbruge III
                  for the Fifth Circuit                               Clerk
                      _______________

                        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
               _________________________
       ON PETITION FOR REHEARING                          tunity Commission (“EEOC”) in which it
                                                          states, “ASC, among others, recruits employ-
Before DAVIS, SMITH, and DENNIS,                          ees for positions with the Saudi Arabian Oil
  Circuit Judges.                                         Company (‘Saudi Aramco’) and infrequently
                                                          recruits for other entities.” Johnson’s unre-
JERRY E. SMITH, Circuit Judge:*                           futed affidavit asserts that an ASC employee
                                                          informed him that ASC acts as a recruiter for
   The petition for rehearing is GRANTED.                 additional entities including its own subsidiar-
The opinion, 120 Fed. Appx. 547 (5th Cir.                 ies.
2005), is WITHDRAWN, and the following
opinion is substituted:                                       According to Johnson, he was later in-
                                                          formed that he would not be selected for the
                     * * *                                job, allegedly because of his advanced age. He
                                                          filed a complaint with the EEOC, was granted
    Peter Johnson appeals the dismissal, for              a right to sue letter, and sued ASC and SAO
want of subject matter jurisdiction, of his age           alleging, inter alia, violations of the Age
discrimination suit. Because Johnson cannot               Discrimination in Employment Act (“ADEA”),
allege facts sufficient to sustain a cause of ac-         29 U.S.C. § 621 et seq. ASC moved for
tion against this defendant, we affirm.                   dismissal based on a lack of subject matter
                                                          jurisdiction, pursuant to FED. R. CIV. P. 12-
                       I.                                 (b)(1), or alternatively for summary judgment,
   Johnson, while fifty-seven years old, at-              arguing “the court cannot apply extra-territori-
tended a job fair in Houston hosted by Aramco             ally the ADEA . . . to a foreign corporation
Services Company (“ASC”) and applied                      who employs U.S. citizens to work abroad.”1
through ASC for a job as a Seismic Field Crew             The district court summarily granted the mo-
Supervisor working in Saudi Arabia with                   tion to dismiss “with prejudice, for lack of
Saudi Arabian Oil Company (“SAO”). SAO is                 jurisdiction.”
a Saudi Arabian entity with its principal office
in Dhahran, Saudi Arabia, and ASC, SAO’s                                        II.
wholly-owned subsidiary, is incorporated in                  We review de novo a dismissal for want of
Delaware. ASC states that it provides SAO                 subject matter jurisdiction. See Ramming v.
with a range of services, including assistance            United States, 281 F.3d 158, 161 (5th Cir.
with recruiting.                                          2001).

   ASC apparently recruitsSSalbeit infrequent-               Lack of subject matter jurisdiction may be
lySSfor entities other than SAO. Support for                 found [on] any one of [the following bas-
this is found in the record in the form of                   es]: (1) the complaint alone; (2) the com-
ASC’s letter to the Equal Employment Oppor-                  plaint supplemented by undisputed facts


   *                                                         1
    Pursuant to 5TH CIR. R. 47.5, the court has de-            That this logic indisputably applies with re-
termined that this opinion should not be published        spect to SAO, Johnson does not disagree, and he
and is not precedent except under the limited cir-        consented to the dismissal of his claims against
cumstances set forth in 5TH CIR. R. 47.5.4.               SAO.

                                                      2
      evidenced in the record; or (3) the com-                Based on the presumption against extra-ter-
      plaint supplemented by undisputed facts             ritorial application, even Johnson concedes
      plus the court’s resolution of disputed             that SAO is not a covered employer under the
      facts. . . . In examining a Rule 12(b)(1)           ADEA. Nevertheless, because ASC is a U.S.
      motion, the district court is empowered to          corporation, the same principle does not nec-
      consider matters of fact which may be in            essarily immunize it from suit.
      dispute. Ultimately, a motion to dismiss for
      lack of subject matter jurisdiction should be          Johnson asserts that ASC, functioning as an
      granted only if it appears certain that the         employment agency, may be liable for its own
      plaintiff cannot prove any set of facts in          discriminatory practices under 29 U.S.C.
      support of his claim that would entitle             § 623(b). Johnson’s complaint avers that
      plaintiff to relief.                                ASC, through its screening and referral pro-
                                                          cess that classified him according to his age,
Id.                                                       violated the ADEASSindependently of SAO’s
                                                          discriminatory practices.
                       III.
   The ADEA provides, in part, that “[i]t shall              ASC correctly notes, however, that SAO is
be unlawful for an employment agency to fail              not a covered employer under the ADEA.
or refuse to refer for employment, or other-              Consequently, goes the argument, recruiting
wise to discriminate against, any individual              organizations such as ASC cannot be consid-
because of such individual’s age, or to classify          ered an employment agency for purposes of
or refer for employment any individual on the             the act if the foreign corporation for whom the
basis of such individual’s age.” 29 U.S.C.                recruiter works is not a covered employer un-
§ 623(b). Bridling this proposition is the no-            der the ADEA.3
tion that no federal statute applies extra-terri-
torially unless Congress has expressly indi-                  Johnson responds by citing 29 C.F.R.
cated its intent for such an application. See,            § 1625.3, which states that an employment
e.g., EEOC v. Arabian Am. Oil Co., 499 U.S.               agency that “regularly procures employees for
244, 248 (1991). This canon of statutory con-             at least one covered employer [] qualifies un-
struction “serves to protect against unintended           der section 11(c) of the [ADEA] as an em-
clashes between our laws and those of other               ployment agency with respect to all of its
nations which could result in international
discord.” Id. The ADEA does not evince any
                                                             2
such intent; to the contrary, the plain language               (...continued)
of § 623(h)(2) generally prohibits such appli-            not apply to foreign nationals working for [U.S.]
cations. Age discrimination claims, conse-                corporations in a foreign workplace and it does not
quently, are not cognizable with respect to for-          apply to foreign companies which are not con-
                                                          trolled by U.S. firms.”).
eign corporations who employ American citi-
zens to work aborad.2                                        3
                                                              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,
      2
    See Denty v. SmithKline Beecham Corp., 109            660-61 (7th Cir. 1987); Goswami v. Aramco
F.3d 147, 150 (3d Cir. 1991) (The ADEA “does              Servs. Co., No. H-00-0929, slip op. at 12-14 (S.D.
                                  (continued...)          Tex. Mar. 22, 2001).

                                                      3
activities whether or not such activities are for             The regulation on which Johnson relies at-
employers covered by the act.” (Emphasis                   tempts to impose liability in the very sort of
added.) Consequently, if ASC “regularly” re-               manner that § 623(h)(2) prohibits. If we were
cruits for any covered employer or employers,              to accept Johnson’s position, the general anti-
the fact that SAO is not a covered employer                age discrimination prohibitions of § 623 would
will not immunize it from its conduct with                 apply even though the employer is admittedly
respect to Johnson.                                        foreign and not controlled by an American
                                                           employer. Because such a conclusion would
    If we were to apply the regulation, we                 be contrary to the plain text of § 623(h)(2), §
would need to determine precisely what is                  623(b)’s limitations on the activities of em-
meant by the phrase “regularly procure.” We                ployment agencies cannot apply to ASC.
need not do so in this case, however, because
when read in light of Congress’s unequivocal                   The EEOC interpretation in question was
admonition against extra-territorial application           first adopted in 1972 by the Department of
of the ADEA,4 the regulation cannot impose                 Labor and was subsequently adopted by the
liability on ASC. Where “Congress has ex-                  EEOC, after notice and comment, as its own
plicitly left a gap for the agency to fill, there is       in 1981.5 Section 623(h)(2), limiting the ex-
an express delegation of authority to the agen-            tra-territorial application of the ADEA, on the
cy to elucidate a specific provision of the stat-          other hand, was not enacted until 1984. Nei-
ute by regulation.” Chevron USA, Inc. v. Nat.              ther the Department of Labor nor the EEOC,
Res. Def. Council, Inc., 467 U.S. 837, 843                 therefore, had the opportunity to consider
(1984). Where no such gap exists, however,                 Congress’s admonition against extraterritorial
or where the questioned agency regulation is               application of the EEOC when adopting the
“manifestly contrary to the statute,” the agency           questioned regulation. In this case, the plain
regulation will not trump the plain language of            language of the statute must be applied irre-
the statute. Id.                                           spective of the regulation.

   In this case, 29 C.F.R. § 1625.3, upon                     In light of the foregoing, Johnson has failed
which Johnson relies, is in obvious tension                to allege facts sufficient to sustain an ADEA
with the ADEA’s own general prohibition                    cause of action against ASC. The judgment of
against its extra-territorial application. See 29          dismissal is therefore AFFIRMED.
U.S.C. § 623(h)(2). As we noted above, ab-
sent an express indication of Congressional
intent to apply a statute extra-territorially, such
an intent will not be inferred. See Arabian
Am. Oil Co., 499 U.S. at 248. In the case of
the ADEA, this presumption is made con-
clusive by § 623(h)(2)’s express prohibition of
the application of the ADEA “where the em-
ployer is a foreign person not controlled by an
American employer.”
                                                              5
                                                               See 37 Fed. Reg. 13345 (1972), codified at 29
                                                           C.F.R. § 860.36(c) (1973); 46 Fed. Reg. 47726
   4
       See 29 U.S.C. § 623(h)(2).                          (1981).

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