                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                   F I L E D
                            In the                                January 10, 2006
       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                               this is found in the record in the form of
          REHEARING EN BANC                               ASC’s letter to the Equal Employment Op-
                                                          portunity Commission (“EEOC”) in which it
Before DAVIS, SMITH, and DENNIS,                          states, “ASC, among others, recruits employ-
  Circuit Judges.                                         ees for positions with the Saudi Arabian Oil
                                                          Company (‘Saudi Aramco’) and infrequently
JERRY E. SMITH, Circuit Judge:*                           recruits for other entities.” Johnson’s unrefut-
                                                          ed affidavit asserts that an ASC employee in-
    The second opinion, 134 Fed. Appx. 547                formed him that ASC acts as a recruiter for
(5th Cir. May 31, 2005), which replaced the               additional entities including its own subsidiar-
first opinion, 120 Fed. Appx. 547 (5th Cir.               ies.
Jan. 31, 2005), is WITHDRAWN, and the fol-
lowing 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 [o n] any one of [the following bas-


   *                                                         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
      es]: (1) the complaint alone; (2) the com-             zens to work aborad.2
      plaint supplemented by undisputed facts
      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 facts          that SAO is not a covered employer under the
      . . . . In examining a Rule 12(b)(1) motion,           ADEA. Nevertheless, because ASC is a U.S.
      the district court is empowered to consider            corporation, the same principle does not nec-
      matters of fact which may be in dispute.               essarily immunize it from suit.
      Ultimately, a motion to dismiss for lack of
      subject matter jurisdiction should be grant-              Johnson asserts that ASC, functioning as an
      ed only if it appears certain that the plaintiff       employment agency, may be liable for its own
      cannot prove any set of facts in support of            discriminatory practices under 29 U.S.C.
      his claim that would entitle plaintiff to              § 623(b). Johnson’s complaint avers that
      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 be-             organizations such as ASC cannot be consid-
cause of such individual’s age, or to classify or            ered an employment agency for purposes of
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-
struction “serves to protect against unintended
                                                                2
clashes between our laws and those of other                       See Denty v. SmithKline Beecham Corp., 109
nations which could result in international dis-             F.3d 147, 150 (3d Cir. 1991) (T he ADEA “does
cord.” Id. The ADEA does not evince any                      not apply to foreign nationals working for [U.S.]
such intent; to the contrary, the plain language             corporations in a foreign workplace and it does not
of § 623(h)(2) generally prohibits such appli-               apply to foreign companies which are not con-
                                                             trolled by U.S. firms.”).
cations. Age discrimination claims, conse-
quently, are not cognizable with respect to for-                3
                                                                 See Brownlee v. Lear Siegler Mgmt. Servs.
eign corporations who employ American citi-                  Corp., 15 F.3d 976, 978 n.3 (10th Cir. 1994);
                                                             Shrock v. Altru Nurses Registry, 810 F.2d 658,
                                                             660-61 (7th Cir. 1987); Goswami v. Aramco
                                                             Servs. Co., No. H-00-0929, slip op. at 12-14 (S.D.
                                                             Tex. Mar. 22, 2001).

                                                         3
at least one covered employer [] qualifies un-            when read in light of Congress’s unequivocal
der section 11(c) of the [ADEA] as an em-                 admonition against extra-territorial application
ployment agency with respect to all of its ac-            of the ADEA co ntained in subsection (h)(2),
tivities whether or not such activities are for           the regulation cannot impose liability on ASC
employers covered by the act.” (Emphasis                  where the plain words of the statute exempt it.
added.) Consequently, to the extent the regu-
lation applies, if ASC “regularly” recruits for              In light of the foregoing, Johnson has failed
any covered employer or employers, the fact               to allege facts sufficient to sustain an ADEA
that SAO is not a covered employer will not               cause of action against ASC. The judgment of
immunize it from its conduct with respect to              dismissal is therefore AFFIRMED.
Johnson.
                                                              Treating the petition for rehearing en banc
    We need not decide, however, whether                  as a petition for panel rehearing, the petition
ASC qualifies as an employment agency under               for panel rehearing is DENIED. No member
the statute or the regulation. Assuming, for              of the panel or judge in regular active service
our purposes, t hat ASC is an employment                  having requested that the court be polled on
agency, subsection (h)(2) absolves it of any lia-         rehearing en banc (FED. R. APP. P. 35 and 5TH
bility under this section.4 It is uncontested that        CIR. R. 35), the petition for rehearing en banc
SAO, the employer, is a foreign person not                is DENIED. No further petitions for panel re-
controlled by an American employer and that               hearing or rehearing en banc will be enter-
ASC was procuring employees for SAO to                    tained. The mandate shall issue forthwith.
work in a foreign workplace.5

   If we were to apply the regulation, we
would need to determine precisely what is
meant by the phrase “regularly procure.” We
need not do so in this case, however, because


   4
     Subsection (h)(2) provides that “the prohibi-
tions of this section shall not apply where the em-
ployer is a foreign person not controlled by an
American employer.”
   5
     See Morelli v. Cedel, 141 F.3d 39, 41-42 (2d
Cir. 1998) (“At a minimum, this provision means
that the ADEA does not apply to the foreign oper-
ations of foreign employersSSunless there is an
American employer behind the scenes.”); Denty v.
SmithKline Beecham Corp., 109 F.3d 147, 150-50
(3d Cir. 1997) (“The language of section 623(h)(2)
could not be more clearSSthe ADEA does not
apply when a foreign corporation controls an
American corporation and the employment is with
the foreign parent abroad.”).

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