                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                                                  In the                                January 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
                                  _________________________



Before DAVIS, SMITH, and                                  Peter Johnson appeals the dismissal, for
  DENNIS, Circuit Judges.                              want of subject matter jurisdiction, of his age
                                                       discrimination suit. Because Johnson alleges
JERRY E. SMITH, Circuit Judge:*                        sufficient facts, uncontroverted in the record,
                                                       to sustain jurisdiction, we reverse and remand.


   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
                       I.                                that “the court cannot apply extra-territorially
   On August 23, 2001, Johnson, who was                  the ADEA . . . to a foreign corporation who
then fifty-seven years old, attended a job fair in       employs U.S. citizens to work abroad.”2
Houston hosted by Aramco Services Company                Without hearing, the district court summarily
(“ASC”). While there he applied through ASC              granted the motion to dismiss “with prejudice,
for a job as a Seismic Field Crew Supervisor             for lack of jurisdiction.”3
working in Saudi Arabia with Saudi Arabian
Oil Company (“SAO”).                                                           II.
                                                            Because it is a pure question of law, we re-
   SAO is a Saudi Arabian entity with its                view de novo a dismissal for want of subject
principal office in Dhahran, Saudi Arabia, and           matter jurisdiction. See Ramming v. United
ASC, SAO’s wholly-owned subsidiary, is in-               States, 281 F.3d 158, 161 (5th Cir. 2001).
corporated in Delaware. ASC states that it
provides SAO with a range of services, includ-                 Lack of subject matter jurisdiction may be
ing assistance with recruiting.                                found [on] any one of [the following bas-
                                                               es]: (1) the complaint alone; (2) the com-
    Importantly, ASC apparently re-                            plaint supplemented by undisputed facts
cruitsSSalbeit infrequentlySSfor entities other                evidenced in the record; or (3) the com-
than SAO. Support for this is found in the                     plaint supplemented by undisputed facts
record in the form of ASC’s letter to the Equal                plus the court’s resolution of disputed
Employment Opportunity Commission                              facts. . . . In examining a Rule 12(b)(1)
(“EEOC”) in which it states, “ASC, among                       motion, the district court is empowered to
others, recruits employees for positions with                  consider matters of fact which may be in
the Saudi Arabian Oil Company (‘Saudi                          dispute. Ultimately, a motion to dismiss for
Aramco’) and infrequently recruits for other                   lack of subject matter jurisdiction should be
entities.” Johnson’s unrefuted affidavit asserts               granted only if it appears certain that the
that an ASC employee, Charles Ellmaker,                        plaintiff cannot pro ve any set of facts in
informed him that ASC acts as a recruiter for                  support of his claim that would entitle
additional entities including its own subsidiar-               plaintiff to relief.
ies.
                                                         Id.
    According to Johnson, he was later in-
formed by Ellmaker that he would not be se-
lected for the job, allegedly because of his ad-
                                                               2
vanced age. He filed a complaint with the                     That this logic indisputably applies with re-
EEOC, was granted a right to sue letter, and             spect to SAO, Johnson does not disagree, and he
sued ASC and SAO alleging, inter alia, vio-              consented to the dismissal of his claims against
                                                         SAO.
lations of the Age Discrimination in Employ-
ment Act (“ADEA”), 29 U.S.C. § 621 et seq.                     3
                                                               In addition to attacking the jurisdictional rul-
ASC moved for dismissal based on a lack of               ing, Johnson avers that the dismissal with prejudice
subject matter jurisdiction, pursuant to FED. R.         was inappropriate because a court without jurisdic-
CIV. P. 12(b)(1), or alternatively for summary           tion cannot make a ruling on the merits. Because
judgment. The gravamen of its argument was               the district court erred in its jurisdictional analysis,
                                                         we do not reach this contention.

                                                     2
                       III.                               age, violated the ADEASSindependently of
   The ADEA provides, in part, that “[i]t shall           SAO’s discriminatory practices.
be unlawful for an employment agency to fail
or refuse to refer for employment, or other-                 ASC correctly notes, however, that SAO is
wise to discriminate against, any individual              not a covered employer under the ADEA.
because of such individual’s age, or to classify          Consequently, goes the argument, recruiting
or refer for employment any individual on the             organizations such as ASC cannot be consid-
basis of such individual’s age.” 29 U.S.C.                ered an employment agency for purposes of
§ 623(b). Bridling this proposition is the no-            the act if the foreign corporation for whom the
tion that no federal statute applies extra-terri-         recruiter works is not a covered employer un-
torially unless Congress has expressly indi-              der the ADEA.5
cated its intent for such an application. See,
e.g., EEOC v. Arabian Am. Oil Co., 499 U.S.                   Johnson responds with a twist that signifi-
244, 248 (1991). This canon of statutory con-             cantly distinguishes the cases on which ASC
struction “serves to protect against unintended           relies. Under 29 C.F.R. § 1625.3, an employ-
clashes between our laws and those of other               ment agency that “regularly procures employ-
nations which could result in international               ees for at least one covered employer [] quali-
discord.” Id. Because the ADEA does not                   fies under section 11(c) of the [ADEA] as an
evince any such intent, age discrimination                employment agency with respect to all of its
claims are not cognizable with respect to for-            activities whether or not such activities are for
eign corporations who employ American citi-               employers co vered by the act.” (Emphasis
zens to work aborad.4                                     added.) Consequently, if ASC “regularly” re-
                                                          cruits for any covered employer or employers,
    Based on the presumption against extra-ter-           the fact that SAO is not a covered employer
ritorial application, even Johnson concedes               will not immunize it from its conduct with
that SAO is not a covered employer under the              respect to Johnson.
ADEA. Nevertheless, because ASC is a U.S.
corporation, the same principle does not nec-                The definition of “regularly procures” is not
essarily immunize it from suit.                           necessarily self-evident, and although Johnson
                                                          made this argument in the district court, that
   Johnson asserts that ASC, functioning as an            court did not demonstrably consider it. ASC
employment agency, may be liable for its own              contends that any infrequent work it does for
discriminatory practices under 29 U.S.C.                  other employers cannot reach the level of
§ 623(b). Johnson’s complaint avers that                  regularity. In contrast, Jo hnson in his brief
ASC, through its screening and referral pro-              posits that “[i]nfrequent recruitment may
cess that classified Johnson according to his             include regular recruitment, such as regularly


   4                                                         5
     See Denty v. SmithKline Beecham Corp., 109               See Brownlee v. Lear Siegler Mgmt. Servs.
F.3d 147, 150 (3d Cir. 1991) (The ADEA “does              Corp., 15 F.3d 976, 978 n.3 (10th Cir. 1994);
not apply to foreign nationals working for [U.S.]         Shrock v. Altru Nurses Registry, 810 F.2d 658,
corporations in a foreign workplace and it does not       660-61 (7th Cir. 1987); Goswami v. Aramco
apply to foreign companies which are not con-             Servs. Co., No. H-00-0929, slip op. at 12-14 (S.D.
trolled by U.S. firms.”).                                 Tex. Mar. 22, 2001).

                                                      3
meeting the needs of a seasonal industry, albeit
once a year.”

   The record is notably underdeveloped on
the question whether ASC “regularly pro-
cures” employees for covered employers,
thereby subjecting it to liability under the
ADEA. The only relevant evidence in the
record is ASC’s submission to the EEOC
indicating that it “infrequently recruits for
other entities,” and the hearsay assertion in
Johnson’s affidavit that ASC recruits for com-
panies in addition to SAO.

   It is uncertain whether any of these other
entities is covered entities and whether ASC’s
activities are performed with the requisite
regularity. Nevertheless, in the absence of any
evidence in the record to the contrary, it can-
not be said that the district court correctly
concluded to a certainty that Johnson cannot
prove any set of facts in support of his claim
that would entitle him to relief. See Ramming,
281 F.3d at 161.

   After further discovery, ASC may be able
to show entitlement to summary judgment by
conclusively refuting the notion that its recruit-
ing activities for other entities cause it to be
subject to suit under the ADEA. Given the
current record, however, Johnson has ade-
quately pleaded facts sufficient to maintain
jurisdiction. The judgment of dismissal is
therefore REVERSED, and this matter is RE-
MANDED.6


   6
     ASC devotes considerable ink to the conten-
tion that Johnson, proceeding pro se, has waived
his arguments by failing to brief them adequately.
                                                             6
Specifically, ASC is apparently dismayed by John-             (...continued)
son’s alleged paucity of citations to the record in       28(a)(7), 28(a)(9)(A), and 5TH CIR. R. 28.2.3. To
support of factual propositions per FED. R. APP. P.       the contrary, we find Johnson’s submissions ade-
                                     (continued...)       quate to raise his issues on appeal.

                                                      4
