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Holden v. Canadian Consulate

Holden v. Canadian Consulate

United States Court of Appeals for the Ninth Circuit

May 17, 1996, Argued, Submitted, San Francisco, California ; August 9, 1996, Filed

No. 94-17130

Opinion

 [*919]  OPINION

LEAVY, Circuit Judge:

Arlene Holden, a former commercial officer, sued the Canadian Consulate for wrongful termination alleging, among other claims, sex and age discrimination. The Consulate moved to dismiss Holden's complaint based on sovereign immunity under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602. The district court denied the motion finding that Holden's claims were based on a commercial activity, an exception to sovereign immunity under 28 U.S.C. § 1605(a)(2). The Consulate interlocutorily appeals the district court's order. We have jurisdiction under the collateral order doctrine. Schoenberg v. Exportadora de Sal, S.A. de C.V., [**2]  930 F.2d 777, 779 (9th Cir. 1991). We affirm.

 [*920]  I. Background

In February 1993, the Canadian government closed its Consulate in San Francisco. As a result, the Consulate laid off numerous employees, including appellee Holden. Holden was a "Commercial Officer" within the Trade and Investment Section of the Canadian Consulate. She held the same position throughout her thirteen year tenure with the Consulate. Her job involved responding to inquiries from Canadian companies regarding information on prospective buyers, assistance in obtaining sales representation or wholesale distributors, provision of names or appointments with trade contacts and evaluations of the sales potential of a particular product. Holden also spent a significant amount of time at trade shows, promotions and seminars. Occasionally, Holden would respond to marketing inquiries from the Canadian government. She would simply relay information to the government, without any opinion or analysis.

In place of the Consulate, Canada opened a small satellite office staffed with only one commercial officer. A competition for that position was held between Holden and another commercial officer, Mark Ritchie. Ritchie, a [**3]  man younger and less experienced than Holden, was selected for the job.

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92 F.3d 918 *; 1996 U.S. App. LEXIS 20064 **; 71 Fair Empl. Prac. Cas. (BNA) 929; 68 Empl. Prac. Dec. (CCH) P44,240; 96 Cal. Daily Op. Service 5954; 96 Daily Journal DAR 9741

ARLENE HOLDEN, Plaintiff-Appellee, v. CANADIAN CONSULATE and DOES 1-30, Defendants-Appellants.

Subsequent History:  [**1]  Certiorari Denied January 21, 1997, Reported at: 1997 U.S. LEXIS 543.

Prior History: Appeal from the United States District Court for the Northern District of California. D.C. No. CV-93-04015-SBA. Saundra Brown Armstrong, District Judge, Presiding.

Disposition: AFFIRMED

CORE TERMS

commercial activity, diplomatic, sovereign immunity, marketing, foreign state, personnel, civil servant, promoted, hired

Civil Procedure, Appeals, Standards of Review, De Novo Review, International Law, Sovereign Immunity, Foreign Sovereign Immunities Act, Appellate Review of Decisions, Subject Matter Jurisdiction, Federal Questions, General Overview, Jurisdiction Over Actions, Foreign & International Immunity, Jurisdiction, Subject Matter Jurisdiction, Construction & Interpretation, Exceptions, Commercial Activities