                                             Filed:   June 15, 2001

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                              No. 00-1963
                             (CA-00-93-1)



Luis Reyes-Gaona,

                                                Plaintiff - Appellant,

          versus


North Carolina Growers Association, etc., et
al.,

                                               Defendants - Appellees.



                              O R D E R



     The court amends its opinion filed May 22, 2001, as follows:

     On page 2, section 1, line 6 -- Ms. Anderson’s name is deleted

from section 1, line 11, and added to counsel arguing for appellees

as “Margaret Ann Anderson, Pilot Mountain, North Carolina.”

                                          For the Court - By Direction




                                          /s/ Patricia S. Connor
                                                   Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LUIS REYES-GAONA,
Plaintiff-Appellant,

v.

NORTH CAROLINA GROWERS
ASSOCIATION, INCORPORATED; DEL-AL
                                                               No. 00-1963
ASSOCIATES, INCORPORATED,
Defendants-Appellees.

FARM LABOR ORGANIZING COMMITTEE,
AFL-CIO; EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Amici Curiae.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CA-00-93-1)

Argued: April 5, 2001

Decided: May 22, 2001

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge, and
Patrick M. DUFFY, United States District Judge for the
District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Duffy joined. Judge Motz wrote an opinion
concurring in the judgment.

_________________________________________________________________
COUNSEL

ARGUED: Laurie Ann McCann, AARP FOUNDATION LITIGA-
TION, Washington, D.C., for Appellant. Robert John Gregory, Senior
Attorney, EQUAL EMPLOYMENT OPPORTUNITY COMMIS-
SION, Washington, D.C., for Amicus Curiae Commission. Virginia
A. Piekarski, CONSTANGY, BROOKS & SMITH, L.L.C., Winston-
Salem, North Carolina; Margaret Ann Anderson, Pilot Mountain,
North Carolina, for Appellees. ON BRIEF: Pamela DiSte-
fano, DISTEFANO & ERCA, Durham, North Carolina; Bruce Gold-
stein, Shelley Davis, FARMWORKER JUSTICE FUND, INC.,
Washington, D.C., for Appellant. W. R. Loftis, Jr., CONSTANGY,
BROOKS & SMITH, L.L.C., Winston-Salem, North Carolina, for
Appellee Growers Association. C. Gregory Stewart,
General Counsel, Philip B. Sklover, Associate General Counsel, Lor-
raine C. Davis, Assistant General Counsel, EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Amicus
Curiae Commission. Herman Schwartz, WASHINGTON COLLEGE
OF LAW AMERICAN UNIVERSITY, Washington, D.C., for
Amicus Curiae Committee.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

This case requires us to decide whether the Age Discrimination in
Employment Act (ADEA) covers foreign nationals who apply in for-
eign countries for jobs in the United States. We hold that the Act does
not cover such persons. We thereby affirm the judgment of the district
court, albeit on different grounds.

I.

Plaintiff Luis Reyes-Gaona is a Mexican national over the age of
40. Defendant North Carolina Growers Association (NCGA) is an
American corporation that assists agricultural businesses in North
Carolina in securing farm labor through the federal H-2A agricultural
worker program.1 1 Defendant Del-Al is an agent of NCGA that recruits
_________________________________________________________________

1 Agricultural employers who anticipate a labor shortage for temporary
or seasonal jobs may petition the government for permission to employ

                  2
H-2A workers for NCGA and its members. In May 1998, Reyes-
Gaona went to a Del-Al office in Mexico and asked to be placed on
a list of workers seeking employment in North Carolina via the H-2A
program. Del-Al told Reyes-Gaona that NCGA would not accept
workers over forty years old unless that person had worked for
NCGA before. Reyes-Gaona filed suit against NCGA and Del-Al,
alleging age discrimination in violation of the ADEA.

As the district court noted, an ADEA plaintiff must prove, inter
alia, that he was qualified for the job he sought. Under Fourth Circuit
precedent, for a foreign national to be "qualified" for a position, he
must be authorized for employment in the United States at the time
in question. See Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184,
187 (4th Cir. 1998) (en banc) (per curiam). The district court granted
defendants' Rule 12(b)(6) motion to dismiss because it was undis-
puted that Reyes-Gaona was not authorized to work in the United
States at the time he sought employment with NCGA. In reaching this
decision, the district court declined to address the threshold argument
that the presumption against extraterritoriality barred the application
of the ADEA to this case. Reyes-Gaona appeals.

II.

Plaintiff is a foreign national who applied in a foreign country for
work in the United States. Accordingly, we begin, as we must, by
acknowledging the "longstanding principle of American law `that leg-
islation of Congress, unless a contrary intent appears, is meant to
apply only within the territorial jurisdiction of the United States.'"
EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991) (quot-
ing Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949)). This
interpretive canon is an especially important one as it "serves to pro-
tect against unintended clashes between our laws and those of other
_________________________________________________________________

foreign workers on a temporary basis pursuant to the H-2A visa program.
8 U.S.C. § 1101(a)(15)(H)(ii)(a). Before the Immigration and Naturaliza-
tion Service will approve an application, the employer must certify that
there is a domestic labor shortage and that employing foreign workers
will not adversely affect the wages and working conditions of similarly
employed American workers. Id. § 1188(a)(1).

                  3
nations which could result in international discord." Id. Thus, the pre-
sumption against extraterritorial application of a federal statute can be
overcome only if there is an "affirmative intention of the Congress
clearly expressed." Id. (quoting Benz v. Compania Naviera Hidalgo,
S.A., 353 U.S. 138, 147 (1957)). Since this determination is necessar-
ily "a matter of statutory construction," Arabian, 499 U.S. at 248, we
begin with the text of the ADEA itself.

The ADEA makes it unlawful "for an employer" to "fail or refuse
to hire" or "otherwise discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment,
because of such individual's age." 29 U.S.C. § 623(a)(1). The term
"employer" means any company "engaged in an industry affecting
commerce who has twenty or more employees" and includes the
agents of such companies. Id. § 630(b). The term "employee" means
"an individual employed by any employer," and"includes any indi-
vidual who is a citizen of the United States employed by an employer
in a workplace in a foreign country." Id. § 630(f). Prior to 1984, the
ADEA did not contain the language regarding U.S. citizens employed
in foreign workplaces. To the contrary, Section 626(b) adopted lan-
guage from the Fair Labor Standards Act (FLSA) excluding from
coverage any individual "whose services during the workweek are
performed in a workplace within a foreign country." Id. § 213(f).

Based on the exclusionary language adopted from the FLSA, many
courts held that, before 1984, the ADEA had a purely domestic focus
and did not cover American citizens working for American compa-
nies in foreign countries. See, e.g., Thomas v. Brown & Root, Inc.,
745 F.2d 279, 281 (4th Cir. 1984) (per curiam). 2 The presumption
against the extraterritorial application of American laws required this
_________________________________________________________________

2 Six other circuits reached the same conclusion. And although many
of these decisions were handed down after 1984, each involved events
that preceded the enactment of the 1984 amendments. See Lopez v. Pan
Am World Services, Inc., 813 F.2d 1118 (11th Cir. 1987); S.F. DeYoreo
v. Bell Helicopter Textron, Inc., 785 F.2d 1282 (5th Cir. 1986); Ralis v.
RFE/RL, Inc., 770 F.2d 1121 (D.C. Cir. 1985); Pfeiffer v. Wm. Wrigley
Jr. Co., 755 F.2d 554 (7th Cir. 1985); Zahourek v. Arthur Young & Co.,
750 F.2d 827 (10th Cir. 1984); Cleary v. U.S. Lines, Inc., 728 F.2d 607
(3d Cir. 1984).

                   4
result because absent a clear statement from Congress, the scope of
American law is limited to "the territorial jurisdiction of the United
States." Arabian, 499 U.S. at 244. Thus the presumption prevented
the ADEA from regulating events taking place in foreign countries
even when they involved citizens of the United States. And the Act
certainly could not have reached the even more attenuated situation
of a foreign national applying in a foreign country for work in the
United States.

In 1984, Congress partially closed this gap. Congress responded to
the Thomas line of cases by amending the ADEA to give it limited
extraterritorial application. The definition of "employee" was
amended to include "any individual who is a citizen of the United
States employed by an employer in a workplace in a foreign country."
29 U.S.C. § 630(f). This new statutory language explicitly expanded
the ADEA to prohibit U.S. companies from discriminating against
U.S. citizens employed in foreign countries. Congress also included
an accompanying provision outlawing such discrimination by sub-
sidiaries of U.S. corporations. See id. § 623(h). The language was
"carefully worded to apply only to citizens of the United States" who
worked for a U.S. company or its subsidiary because Congress recog-
nized that the "well-established principle of sovereignty" prohibited
the United States from imposing "its labor standards on another coun-
try." Denty v. SmithKline Beecham Corp., 109 F.3d 147, 150 (3d Cir.
1997) (quoting S. Rep. No. 98-467, at 27 (1984), reprinted in 1984
U.S.C.C.A.N. 2974, 3000).

These amendments demonstrated that "when it desires to do so,
Congress knows how to" expand "the jurisdictional reach of a stat-
ute." Arabian, 499 U.S. at 258. According to the Arabian Court,
"after several courts had held that the ADEA did not apply overseas"
Congress enacted a set of changes whose "expressed purpose . . . was
to make `provisions of the Act apply to citizens of the United States
employed in foreign countries by U.S. corporations or their subsidia-
ries.'" Id. at 259 (quoting S. Rep. No. 98-467, at 2 (1984)). Notably
missing from the 1984 amendments, however, is any provision regu-
lating the conduct at issue here. Congress explicitly gave the ADEA
extraterritorial application with respect to certain U.S. citizens while
simultaneously declining to extend coverage to foreign nationals like
Reyes-Gaona. Nothing in the amendments regulates age discrimina-

                  5
tion by U.S. corporations against foreign nationals in foreign coun-
tries. And the doctrine of expressio unis est exclusio alterius instructs
that where a law expressly describes a particular situation to which it
shall apply, what was omitted or excluded was intended to be omitted
or excluded. Indeed, neither Reyes-Gaona nor the Equal Employment
Opportunity Commission (EEOC) cites a case, and we can find none
ourselves, where the ADEA was interpreted to reach a situation anal-
ogous to the case at bar. Thus, a faithful reading of the plain text of
the statute, especially in light of the 1984 amendments, compels the
conclusion that Reyes-Gaona's claim is not sustainable under the
ADEA.

Reyes-Gaona and the EEOC disagree. They claim that this case
does not require extraterritorial application of the ADEA because the
job Reyes-Gaona applied for was in the United States.33 The crux of
their argument is that when determining whether a suit requires extra-
territorial application of the ADEA, courts always look to the place
of employment rather than the place where the decision was made.
Because Reyes-Gaona applied for a job in the United States, they
argue, the presumption against extraterritoriality is not implicated by
this suit. In support they note that the ADEA itself contains the term
"workplace." For example, "employee" is defined to include U.S. citi-
zens employed "in a workplace in a foreign country." 29 U.S.C.
§ 630(f) (emphasis added). And the Act excepts from its reach
employees "in a workplace in a foreign country" where compliance
would conflict with the laws of the country "in which such workplace
is located." Id. § 623(f)(1) (emphasis added).

We are not persuaded. All of these statutory references come from
the 1984 amendments to the ADEA which, as previously explained,
do not cover Reyes-Gaona. Nothing in the ADEA provides that it
shall apply anytime the workplace is in the United States regardless
of the nationality of the applicant or the country in which the applica-
_________________________________________________________________

3 Reyes-Gaona separately claims that the issue of extraterritoriality is
not properly before this court because the district court did not address
the issue below. This is wrong. It is axiomatic that "we may affirm the
dismissal by the district court on the basis of any ground supported by
the record even if it is not the basis relied upon by the district court."
Ostrzenski v. Seigel, 177 F.3d 245, 253 (4th Cir. 1999).

                  6
tion was submitted. And the fact that the 1984 amendments refer to
workplace does not mean that the Act focuses on work situs to the
exclusion of the situs of the application or the nationality of the appli-
cant. Indeed, the EEOC is insisting that the presumption against extra-
territoriality has no applicability even when a foreign national submits
a job application in a foreign country.

In addition to its statutory argument, the EEOC cites various deci-
sions from the Thomas line of cases, see supra n.2, all of which
involved events that preceded the 1984 amendments. The EEOC
claims these cases prove that courts look to the employee's actual or
proposed work situs to determine whether the ADEA is being applied
in an extraterritorial manner. This is not, however, what these cases
demonstrate. As discussed above, the Thomas line of cases stands for
the rather unremarkable proposition that before 1984 the ADEA had
no extraterritorial application at all -- not even for U.S. citizens
working abroad for American companies. The fact that some suits
were barred because of the international location of the employee's
workstation says nothing about whether a foreign national can file suit
under the ADEA merely because the proposed workstation is in the
United States.

The simple submission of a resume abroad does not confer the
right to file an ADEA action. Indeed, such a broad reading of the Act
could have staggering consequences for American companies.
Expanding the ADEA to cover millions of foreign nationals who file
an overseas application for U.S. employment could exponentially
increase the number of suits filed and result in substantial litigation
costs. If such a step is to be taken, it must be taken via a clear and
unambiguous statement from Congress rather than by judicial fiat.

III.

The Supreme Court has instructed the lower courts to take seri-
ously the presumption against extraterritorial application of U.S. laws.
In keeping with these instructions, many lower courts, including this
one, held that the ADEA had no extraterritorial application prior to
1984. Congress responded by amending the Act to provide for limited
extraterritorial reach. Since these amendments do not reach the case
at bar, there remains nothing in the text of the ADEA to rebut the pre-

                  7
sumption against extending it to cover Reyes-Gaona. And the limited
nature of the 1984 amendments indicates that foreign nationals in for-
eign countries are not covered by the ADEA, regardless of whether
they are seeking employment in the United States or elsewhere.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

DIANA GRIBBON MOTZ, Circuit Judge, concurring in the judg-
ment:

I concur in the judgment because I agree that no authority compels
application of the ADEA to a situation, like that here, in which a for-
eign national applies in his home country for a job in the United
States.

In support of their contention that they are not requesting extraterri-
torial application of the ADEA, Luis Reyes-Gaona and the EEOC rely
on several cases in which courts have denied, on extraterritoriality
grounds, the ADEA claims of legal aliens who applied in the United
States for work abroad. See Hu v. Skadden, Arps, Slate, Meagher &
Flom LLP, 76 F. Supp. 2d 476, 477 (S.D.N.Y. 1999) ("Although Hu
conducted his job search in the United States, the employment he
sought was to be performed outside the country. The fact that Skad-
den conducted employment interviews in New York and may have
made hiring decisions in New York does not suffice to render the
employment within the United States for ADEA purposes."); see also
Denty v. SmithKline Beecham Corp., 109 F.3d 147, 150 n.5 (3rd Cir.
1997) (denying claim of legal alien who applied in the United States
for a position abroad on the ground that the place where the job is to
be performed constitutes the location of the work site for ADEA pur-
poses).

Reyes-Gaona and the EEOC argue that these authorities stand for
the principle that courts look to the place of employment, not the
place of the job application, in determining whether the ADEA
reaches a given claim, or whether permitting the claim would require
the extraterritorial application of the statute. In the case at hand, they

                   8
maintain that the place of employment is the United States, so the
ADEA applies to Reyes-Gaona's claim.

The authorities cited by Reyes-Gaona and the EEOC, however, do
not present the same situation as this case; indeed, they present the
reverse situation. Whereas the case at hand involves a foreign national
applying outside the country for a position in the United States, those
cases involved a foreign national applying in the United States for a
position outside the country. The fact that the ADEA did not apply
in those cases does not compel the conclusion that it does apply to
this one. For this reason, I join in the judgment.

I emphasize that the decision reached by the court in this case does
not conflict with the generally accepted principle that statutes afford-
ing protection from employment discrimination, such as Title VII and
the ADEA, apply to foreign nationals who are legally employed in the
United States. See Espinoza v. Farah Mfg. Co., 414 U.S. 86, 95
(1973) ("We agree that aliens are protected under[Title VII].");
Boureslan v. Aramco, Arabian American Oil Co., 892 F.2d 1271,
1273 (5th Cir. 1990) (holding that Congress intended to "provide Title
VII coverage to aliens employed within the United States");
O'Loughlin v. The Pritchard Corp., 972 F. Supp. 1352, 1363-64 (D.
Kan. 1997) (The ADEA "in general protects noncitizens of the United
States from unlawful discrimination."). Had Reyes-Gaona been hired
by NGCA, once he began work in this country, the ADEA would
have protected him from unlawful employment discrimination.

                  9
