PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RASHID M. CHAUDHRY,
Plaintiff-Appellant,

v.

MOBIL OIL CORPORATION; MOBIL
                                                                   No. 98-1663
OVERSEAS SERVICES, INCORPORATED;
MOBIL OIL QATAR, INCORPORATED;
MOBIL NORTH SEA LIMITED,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-97-2034-A)

Argued: March 3, 1999

Decided: July 20, 1999

Before ERVIN, HAMILTON, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Ervin wrote the opinion, in
which Judge Hamilton and Judge Luttig joined.

_________________________________________________________________

COUNSEL

ARGUED: Jodi Therese Tuer, MCDONALD & KARL, Washington,
D.C., for Appellant. Neal David Mollen, PAUL, HASTINGS,
JANOFSKY & WALKER, L.L.P., Washington, D.C., for Appellees.
ON BRIEF: John F. Karl, MCDONALD & KARL, Washington,
D.C., for Appellant. Barbara B. Brown, Ellen C. Rice, PAUL, HAS-
TINGS, JANOFSKY & WALKER, L.L.P., Washington, D.C., for
Appellees.

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

This employment discrimination action concerns the application of
Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.A.
§§ 2000e-2000e-17 (West 1994 & Supp. 1999), and the Age Discrim-
ination in Employment Act ("ADEA"), 29 U.S.C.A. §§ 621-634
(West 1999), to a foreign national. Rashid M. Chaudhry
("Chaudhry"), a Canadian citizen, was employed by the Mobil Oil
Corporation ("Mobil") overseas. Chaudhry claimed that Mobil vio-
lated Title VII and the ADEA when it failed to transfer him to the
United States in retaliation for his discrimination complaints. Mobil
filed two pretrial motions in this case. First, Mobil moved for the
grant of a protective order staying discovery. Second, Mobil moved
to dismiss Chaudhry's case for failing to state a claim pursuant to
Fed. R. Civ. P. 12(b)(6). The district court granted both motions and
Chaudhry appealed. Finding that the stay of discovery was not an
abuse of discretion, and that Chaudhry's complaint failed to state a
claim upon which relief can be granted, we affirm.

I.

Chaudhry worked for Mobil overseas in London, England and
Doha, Qatar for 18 years, from July 1979 to his termination on April
30, 1997. He is a Canadian national of Pakistani origin and Muslim
faith. He was 53 years old when he was terminated by Mobil.

Chaudhry brought the current lawsuit under Title VII, the ADEA,
and Virginia law on December 19, 1997. Chaudhry amended his com-
plaint on January 29, 1998. Mobil moved for a protective order and
stay of discovery pending the filing of its motion to dismiss. A magis-
trate judge granted the protective order and stay of discovery on Feb-
ruary 27, 1998, pending resolution of Mobil's motion to dismiss.

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Chaudhry moved the district court to reconsider the motion for a pro-
tective order. The district court referred Chaudhry's motion back to
the magistrate judge who denied the motion to reconsider.

Mobil filed a motion to dismiss for failure to state a claim pursuant
to Fed. R. Civ. P. 12(b)(6) on March 9, 1998. The district court
waived a hearing and granted the motion to dismiss on April 6, 1998.
Chaudhry appealed his federal claims.

II.

When reviewing a district court's denial of discovery, we review
findings of fact for clear error and decisions of law for an abuse of
discretion. See Fed. R. Civ. P. 26; Watson v. Lowcountry Red Cross,
974 F.2d 482, 485 (4th Cir. 1992). We review a motion to dismiss de
novo. We accept all the properly pled allegations of the complaint as
true and construe all facts in the light most favorable to the plaintiff.
See Fed. R. Civ. P. 12(b)(6); Flood v. New Hanover County, 125 F.3d
249, 251 (4th Cir. 1997). There is a strong presumption against the
extraterritorial application of federal law. See EEOC v. Arabian Am.
Oil Co., 499 U.S. 244, 248 (1991). The district court had federal ques-
tion jurisdiction pursuant to 28 U.S.C.A. §§ 1343(a)(3), (a)(4) (West
1993). Because this case is an appeal of a final decision of a district
court, this Court has appellate jurisdiction pursuant to 28 U.S.C.A. §
1291 (West 1999).

III.

Chaudhry argued that the district court incorrectly (1) dismissed
this case and (2) granted Mobil a protective order and stay of discov-
ery. After review, we find no error.

A.

Chaudhry argued that the district court should not have dismissed
his complaint. We hold that the district court correctly dismissed
Chaudhry's complaint because it failed to establish that he was quali-
fied for employment.

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To be eligible for Title VII protection, a plaintiff must show that
he was qualified for employment. See Egbuna v. Time-Life Libraries,
Inc., 153 F.3d 184, 187 (4th Cir. 1998). This Court recently held in
Egbuna that a foreign national who applies for a job in the United
States is entitled to Title VII protection "only upon a successful show-
ing that the applicant was qualified for employment." 153 F.3d at 187.
A foreign national is qualified for employment if"the applicant was
an alien authorized for employment in the United States at the time
in question." Id. The Immigration Reform and Control Act of 1986
requires that an alien obtain specific documentation to become autho-
rized for employment in the United States. See 8 U.S.C.A. § 1324a(b)
(West 1999). During oral argument, Chaudhry conceded that he did
not have the specific documentation required to become authorized
for employment in the United States at the time when he alleged
Mobil discriminated against him. Chaudhry, therefore, was not quali-
fied for employment and is ineligible for Title VII protection. Since
the ADEA also requires that a plaintiff be qualified for employment,
Chaudhry is also ineligible for ADEA protection. See Henson v. Lig-
gett Group, Inc., 61 F.3d 270, 274 (4th Cir. 1995) (requiring that an
applicant prove "she was qualified for a job" as part of the ADEA
prima facie case).

B.

In the alternative, Chaudhry argued that if the motion to dismiss
was properly granted, he was nevertheless entitled to discovery and
an evidentiary hearing to insure that the underlying jurisdictional facts
were based upon an adequately developed trial record. See Eaton v.
Dorchester Dev., Inc., 692 F.2d 727, 729 (11th Cir. 1982).

Chaudhry incorrectly characterized the motion to dismiss below as
a motion to dismiss for lack of subject-matter jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(1). See Brief for Appellant at 10-14. The record
clearly indicates that the motion to dismiss was pursuant to Fed. R.
Civ. P. 12(b)(6). Mobil's counsel explained during the motion hear-
ing, "Our motion is not a 12(b)(1) motion. It is a 12(b)(6) motion. Our
motion is based on the fact that if you accept the truth of the allega-
tions that the plaintiff has made in the complaint, he has got no Title
VII claim and no ADEA claim." J.A. at 339-40.

                    4
The only way Chaudhry could possibly have been entitled to dis-
covery was if Mobil had attacked the factual basis for jurisdiction. See
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (A factual attack
alleges "that the jurisdictional allegations of the complaint were not
true."). Such was not the case. Even accepting all of the factual alle-
gations in the complaint as true, Chaudhry still failed to state a claim.
Chaudhry attempted to establish jurisdiction by alleging that both the
Mobil officials who discriminated against him and the jobs they
promised him were located in the United States. Even assuming that
these allegations were true, it is undisputed that Chaudhry still was
not qualified for employment in the United States. The district court
did not abuse its discretion by staying discovery and refusing to grant
Chaudhry an evidentiary hearing.

IV.

For the foregoing reasons, we affirm the district court's stay of dis-
covery and dismissal of this case.

AFFIRMED

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