Ninth Circuit Egypt Sovereign Immunity Opening Brief Lasheen

Case: 10-17034 01/24/2011 Page: 1 of 39
ID: 7621490 DktEntry: 7
Docket No. 10-17034

In the
United States Court of Appeals

For the
Ninth Circuit
EMBASSY OF THE ARAB REPUBLIC OF EGYPT,
ARAB REPUBLIC OF EGYPT, and THE EMBASSY OF
EGYPT CULTURAL AND EDUCATION BUREAU,
Defendants-Appellants,
v.
MOHAMED E. LASHEEN and THE LOOMIS COMPANY,

Plaintiffs-Appellees.
_________________________________
Appeal from a decision of the United States District Court for the Eastern District of
California,
No. S-01-00227 LKK-JFM Honorable Lawrence K. Karlton
BRIEF OF APPELLANTS
JOHN HERMINA, ESQ.
GEORGE HERMINA, ESQ.
HERMINA LAW GROUP
8327 Cherry Lane
Laurel, Maryland 20707
(301) 206-3166 Telephone
(301) 490-7913 Facsimile
law@herminalaw.com Email
Attorneys for Appellants Embassy of the Arab Republic of Egypt, Arab Republic of Egypt,
and the Embassy of Egypt Cultural and Education Bureau
HERMINALAW GROUP
(301) 206-3166 PRINTED ON RECYCLED PAPER
Case: 10-17034 01/24/2011 Page: 2 of 39
TABLE OF CONTENTS
TABLE OF AUTHORITIES................................................................................ iii

I. STATEMENT OF JURISDICTION................................................................1
A. The District Courts Jurisdiction .................................................................1
B. The Court of Appeals Jurisdiction..............................................................3
C. Filing Dates Establishing Timeliness of Appeal.........................................3
II. STATEMENT OF ISSUES .............................................................................3
III. STATEMENT OF THE CASE .....................................................................4
A. Nature of the Case.........................................................................................4
B. Course of Proceedings ..................................................................................5
IV. STATEMENT OF FACTS.............................................................................7
A. The Health Care Benefits Plan ....................................................................7
B. Appellants Prior Appeal .............................................................................9
C. THE DISTRICT COURTS FINDINGS .....................................................9
1. The Waiver Exception As to Lasheen ..........................................................9
2. The Commercial Activity Exception ..........................................................11
V. SUMMARY OF ARGUMENT ......................................................................12
Case: 10-17034 01/24/2011 Page: 3 of 39
VI. ARGUMENT..................................................................................................14
A. Statement of Standard of Review ...............................................................14
B. The District Court Erred in its Determination That The FSIA Does Not
Apply to Lasheens Claim. ................................................................................17
1. Immunity is presumed under the FSIA.......................................................17
2. The "waiver" exception to the FSIA does not apply to Lasheens claim
against the Appellants.......................................................................................19
3. The commercial activity exception does not apply to Lasheen's claims
against the Egypt Defendants. ..........................................................................23
a. Lasheen was a civil servant .....................................................................24
4. The acts of which Lasheen complains were discretionary functions and
therefore cannot form a basis for jurisdiction under the FSIA. ........................32
VII. CONCLUSION ............................................................................................34
CERTIFICATE OF COMPLIANCE ..................................................................35
STATEMENT OF RELATED CASES ...............................................................36
PROOF OF SERVICE..........................................................................................37
ii
Case: 10-17034 01/24/2011 Page: 4 of 39
TABLE OF AUTHORITIES
CASES
Adler v. Federal Republic of Nigeria, 219 F.3d 869 (9th Cir. 2000) ......................13
Amorrortu v. Republic of Peru, 2008 WL 3338029...........................................18,26
Anglo-Iberia Underwriting Management Company v. Lodderhose, 2008 WL
190364 (S.D.N.Y. Jan. 22, 2008).........................................................................22
Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517

(C.A.D.C. 1984), cert. denied, 470 U.S. 1051 (1985).............................................28
Blaxland v. Commonwealth Dir. of Public Prosecutions, 323 F.3d 1198

(9th Cir. 2003) .........................................................................................................13
Cargill Intl, S .A. v. M/T Pavel Dybenko, 991 F.2d 1012 ..................................16,19
Chevron USA Inc. v. Bronster, 363 F.3d 846. 855 (9th Cir. 2004) .........................14
Compania Mexicana De Aviacion, S.A. v. U.S. Dist. Ct., 859 F.2d 1354
(9th Cir. 1988)...........................................................................................................2
Concrete Pipe ,Prods. v. Construction Laborers Pension Trust, 508 U.S. 602
(1993) ...................................................................................................................14
Corza v. Banco Cent. de Reserva Del Peru, 243 F.3d 519 (9th Cir. 2001) ............13
Coyle v. P. T. Garuda Indonesia, 363 F.3d 979 (9th Cir. 2004) .............................13
Easley v. Cromartie, 532 U.S. 234 (2001) ..............................................................14
El-Hadad v. United Arab Emirates, 496 F.3d 658 (C.A.D.C. 2007) ............21,23,25
Embassy of the Arab Republic of Egypt v. Lasheen, 603 F.3d 1166
(9th Cir. 2010) .........................................................................................................2,5
iii
Case: 10-17034 01/24/2011 Page: 5 of 39
Feldman v. Allstate Ins. Co., 322 F.3d 660, 665 (9th Cir.) .....................................14
Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370 (7th Cir. 1985) ........18
Gates v. Victor Fine Foods, Supra., 54 F.3d 1457........................................12,15,20
Gupta v. Thai Airways International, Ltd., 487 F.3d 759 .......................................2
Holden v, Canadian Consulate, 92 F.3d 918 (9th Cir. 1996) ..................................21
Holden, 92 F.3d 918 ................................................................................................21
Husain v. Olympic Airways, 316 F.3d 829 (9th Cir. 2002), affd, 540 U.S. 644
(2004) ...................................................................................................................14
In re Estate of Ferdinand Marcos Human Rights Litig., 94 F.3d 539

(9th Cir. 1996) .........................................................................................................13
Joseph v. Office of the Consulate Gen. of Nigeria, 830 F.2d 1018

(9th Cir. 1987), cert. denied, 485 U.S. 905 (1988)..........................................9,17,19
Ka Makani 'O Kohala Ohana Inc. v. Water Supply, 295 F.3d 955
(9th Cir. 2002) .........................................................................................................13
Kato v. Ishihara, 360 F.3d 106 (2d Cir. 2004) ..............................................21,22,25

Koirala v. Thai Airways Ini'l, Ltd., 126 F.3d 1205 (9th Cir. 1997) ........................14
League of Wilderness Defenders v. Forsgren, 309 F.3d 1181 (9th Cir. 2002) .......13
MacArthur Area Citizens Assn'v. Republic of Peru, 809 F.2d 918
(D.C. Cir. 1987).......................................................................................................28
Ness v. Commissioner, 954 F.2d 1495 (9th Cir. 1992) ...........................................13

NYSA-ILA Pension Trust Fund v. Garuda Indonesia,7 F.3d 35 (2nd Cir. 1993) .....13
Park v. Shin, 313 F.3d 1138 (9th Cir. 2002) ...........................................................13
Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 1982) ........................................14
iv
Case: 10-17034 01/24/2011 Page: 6 of 39
Republic of Argentina v. Weltover, Inc., 504 U.S. 607 ......................................22,25

Saudi Arabia v. Nelson, 507 U.S. 349.....................................................................15
Sklar v. Commissioner, 282 F.3d 610, 612 (9th Cir. 2002).....................................13
U.S. v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S.
797 (1984) ............................................................................................................28
Zivkovic v. Southern California Edison Co., 302 F.3d 1080 (9th Cir. 2002)..........14
STATUTES
28 U.S.C. 1603(a), (b) ..........................................................................................16
28 U.S.C. 1604 .....................................................................................................15
28 U.S.C. 1605(a)(5) ............................................................................................27
28 U.S.C. 1605(a)(5)(A).......................................................................................10
28 U.S.C. 1605(a)(1) .............................................................................................16
28 U.S.C. 2860(a)..................................................................................................28
29 U.S.C. 1001 .....................................................................................................26
29 U.S.C. 1003(a).................................................................................................26
Employee Retirement Security Income Act (ERISA), 29 U.S.C. 1001 ................1
Foreign Sovereign Immunities Act, 28 U.S.C. 1601-1607 ....................................1
Case: 10-17034 01/24/2011 Page: 7 of 39
OTHER AUTHORITIES
H.R. Rep. 1487, 94th Cong., 2d. Sess. 18, reprinted in 1976 U.S.C.C.A.N. 6604 .28
H.R. Rep. No. 94-1487, 94th Cong., 2d Sess. 18, reprinted in 1976 U.S. Code
Cong. & Admin. News 6604 ...............................................................................16
H.Rep. No. 94-1487, 94th Cong., 2d Sess. reprinted at 1976 U.S.C.C.A.N. 6604 .21
vi
Case: 10-17034 01/24/2011 Page: 8 of 39
I.
STATEMENT OF JURISDICTION
A. The District Courts Jurisdiction

Appellants, the Embassy of Egypt, The Arab Republic of Egypt (Egypt),
and the Embassy of Egypt Cultural and Educational Bureau (collectively referred to
in this Brief as Appellants) bring this appeal because the United States District
Court for the Eastern District of California (the District Court) lacks subject
matter jurisdiction over the claim brought by Mohamed E. Lasheen (Lasheen or
Appellee) against the Appellants. Lasheens Complaint was premised upon a
Federal question jurisdiction, alleging a violation of the Employee Retirement
Security Income Act (ERISA), 29 U.S.C. 1001, et seq. [ER 185-189] In addition
to suing the Appellants for violation of a plan provided to Egyptian nationals,
Lasheen also sued The Loomis Company (Loomis), which was the Benefit
Services Manager of the plan. [ER 188:15-21]
In their Answer to the Complaint, the Appellants asserted, inter alia, the of
lack of jurisdiction pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C.
1601, et seq. (FSIA). [ER 179-183] Loomis filed a Cross-Claim against the
Appellants alleging a breach of a benefit service management agreement entered
into between Loomis and Appellants. Loomis and Appellee reached a settlement
agreement and they jointly requested that the District Court find that the FSIA does
not apply to bar Appellees claim and Loomis Cross-Claim. On February 1, 2008,
Case: 10-17034 01/24/2011 Page: 9 of 39
the District Court entered an Order finding that the FSIA is inapplicable to Loomis
claims against Appellants, but declined to consider whether the Appellants are
immune from Lasheens ERISA claim. [ER 167-178]
In an Opinion dated May 10, 2010, this Court affirmed the District Courts
finding that the FSIA does not deprive the federal courts of jurisdiction as to
Loomis claims, but reversed the District Courts determination that the issue of
whether the FSIA immunizes the Egyptian Defendants against Lasheens claims
was not before it. Embassy of the Arab Republic of Egypt v. Lasheen, 603 F.3d
1166, 1173 (9th Cir. 2010). Therefore, this Court remanded the case to the District
Court to make that determination in the first instance. Id.
On August 31, 2010, the District Court issued an Opinion in which it
determined that the Appellants have waived sovereign immunity. [ER 1-11].
B. The Court of Appeals Jurisdiction
Orders regarding the applicability of the FSIA are immediately appealable
under the collateral order doctrine. See Gupta v. Thai Airways International,
Ltd., 487 F.3d 759, 763-764 and n. 6 (9th Cir. 2007), citing Compania Mexicana De
Aviacion, S.A. v. U.S. Dist. Ct., 859 F.2d 1354, 1358 (9th Cir. 1988) (per
curiam). The applicability of the FSIA was the subject of the District Court's August
31, 2010 Order. [ER 1-11]
Case: 10-17034 01/24/2011 Page: 10 of 39
C. Filing Dates Establishing Timeliness of Appeal

On August 31, 2010, the District Court filed an Order denying Appellants
Motion to Dismiss or In the Alternative for Summary Judgment and granting
Lahseen and Loomis joint motion for a determination as the FSIA immunity.
[ER 1-11] The Appellants filed a Notice of Appeal of the Courts Order on
September 9, 2010. [ER 191-211]
II.
STATEMENT OF ISSUES
1. Did the Court err in its determination that the FSIA does not apply
to Lasheens claim?
2. Did the District Court err in finding that the "waiver" exception is
applicable to Lasheens claim against Appellants even though
there was no contract and no failure to assert the affirmative
defense under the FSIA?
3. Did the District Court err in finding that the "commercial activity"
exception to the FSIA may apply to the Egypt Appellants merely
because Appellants provided ERISA coverage to their own citizens
in the United States?
III.
STATEMENT OF THE CASE
A. Nature of the Case

The late Appellee Mohamed Lasheen was an Egyptian national who was
Case: 10-17034 01/24/2011 Page: 11 of 39
employed by the public university system in Egypt and was considered a civil
servant. [ER 150-151:4-14] The Egyptian Government sent the Appellee to the
United States in March of 2000 where he was under a temporary visa that
required him to return and be barred from re-entering the United States for two
years. [ER 151:11-14] Mr. Lasheens healthcare coverage-eligibility decision was
made under the Egyptian health insurance plan made available for civil servants,
using Egyptian Government guidelines and Egyptian law. [ER 151:15-23]
Shortly after his arrival in the United States, Lasheen filed a claim with
Appellants through Loomis for coverage of a liver transplant and the claim was
denied due to a preexisting condition of, and treatment for, hepatitis C. Lasheen
died, and a representative of his estate filed an ERISA claim in his name against
Appellants and Loomis. [ER 2:11-15]
Loomis filed a Cross-Claim against the Appellants, and, sometime
thereafter, Loomis and Lasheen reached a settlement agreement and submitted a
joint motion requesting that the District Court find that the FSIA inapplicable to
Lasheens claim and Loomis Cross-Claim. The District Court determined that
the FSIA did not apply to the underlying action finding an exception as to
Loomis, but not as to Lasshen. An appeal from that decision was taken, and this
Court remanded the case for the District Court to issue a separate determination as
to whether the FSIA applies to Lasheens ERISA claim. The District Court issued
Case: 10-17034 01/24/2011 Page: 12 of 39
a decision finding that the Appellants waived immunity under the FSIA, and this
appeal followed.
B.
On
Course of Proceedings
February
2,
2001,
Mohamed
Lasheen,
through
personal
representative, brought the subject action in the District Court against Loomis, the
Appellants, and other parties, alleging, among other things, violations of ERISA.
[ER 185-189]
On November 31, 2005, Loomis filed a Cross-Claim against Appellants for
breach of contact seeking indemnity and attorneys fees for defending the Lasheen
claim against Loomis. Subsequently in 2007, Loomis and Lasheen entered into a
settlement agreement, and on November 6, 2007, both parties requested, through a
Joint Special Motion, that the District Court find that the FSIA does not apply to
Lasheens ERISA claim and Loomis Cross-Claim against the Appellants.
On February 1, 2008, the District Court granted the Joint Special Motion,
finding that the FSIA is inapplicable to the Appellants. [ER 167] On February 29,
2010, the Appellants filed a Notice of Appeal as to the District Court Order
regarding the FSIA inapplicability.
On May 10, 2010, this Court issued an opinion, in which the Court, inter
alia, affirmed the finding as to the lack of Appellants immunity with respect to
Case: 10-17034 01/24/2011 Page: 13 of 39
Loomis, but remanded the matter to the District Court for a distinct analysis as to
whether the FSIA was also inapplicable to Lasheens claim. Embassy of the Arab
Republic of Egypt, supra 603 F.3d 1166 (9th Cir. 2010). [ER 155]
Shortly after the remand, the District Court issued a briefing schedule
directing Appellants to file a motion for summary judgment, Lasheen to file an
Opposition, giving Appellants an opportunity for reply, and setting a hearing date.
[ER 153]. After hearing from the parties, the Court issued an Order finding that the
FSIA did not immunize the Appellants as to Lasheens claim. [ER 1-11] The
Appellants filed a timely appeal of the District Courts decision on September 14,
2010.
IV.
A.
STATEMENT OF FACTS
The Health Care Benefits Plan
The late Appellee Mohamed Lasheen was an Egyptian national who was
employed by the public university system in Egypt and was an Egyptian civil
servant. [ER 150-151:4-14] The Egyptian Government sent the Appellee to the
United States in March of 2000 where he was under a temporary visa that
required him to return and be barred from re-entering the United States for two
years. [ER 151:11-14] Mr. Lasheens coverage-eligibility decision was made
under the Egyptian health insurance plan (the Plan), which was made available
for civil servants, using Egyptian Government guidelines and Egyptian law.
Case: 10-17034 01/24/2011 Page: 14 of 39
[ER 151:15-23]
The Plan contained specific conditions and prerequisites for eligibility and
coverage, including, according to a summary of plan benefits, the following:
ELIGIBLE TEACHERS/STUDENTS
Eligibility for coverage under this Plan is limited to international
students who: (1) are eligible participants of [an] insurance
program sponsored by the government of their Home Country
ELIGIBILITY REQUIREMENTS
As an International Student ... or teacher, you are eligible for coverage
under this Plan only if you satisfy all of the following requirements:
a.
maintain domicile and citizenship or naturalization status in the

Home Country;
b.
are under age 65;
c.
are a student enrolled for a minimum of six credit hours per

semester (if applicable) and are engaged, full-time, in
educational, or research activities while attending an Institution
of Higher Learning in the United States, or a teacher working at
least 30 hours per week employed by the Embassy of Egypt and
Educational Bureau;
d.
have duly demonstrated evidence of good health at the point of

entry into the United States, as required by the government of
your Home Country, if applicable;
e.
hold a valid, current foreign passport, a valid "F" or "J" visa,

issued by U.S. Department of State, and a valid Form IAP66, or
Form 1-20, issued by the U.S. Immigration and Naturalization
Service; and
f.
have neither received nor applied for naturalization or

permanent residency status in the United States, Puerto Rico or
Case: 10-17034 01/24/2011 Page: 15 of 39
Canada, or for any other change in your immigration status in

the United States as an "F" or "J" visa holder. [ER 76]
A covered person's spouse who was a U.S. citizen or had permanent

residence in the United States was not eligible for coverage under the Plan. [ER 77]
The Plan was thus designed for the benefit of Egyptian nationals in the United
States temporarily, teaching or studying, under a valid "F" or "J" visa holder. In
addition, the Plan provided for specific exclusions from coverage, including a
preexisting condition exclusion:
The Plan will not compensate any Covered Person for expenses
incurred for any condition, regardless of the condition, for which
medical advice, diagnosis, care or treatment was recommended or
received within the six month period prior to the enrollment date...
[ER 88]
B.
Appellants Prior Appeal
As this Court noted in its summary of facts, in Embassy of the Arab

Republic of Egypt, Supra., the District Court found that the FSIA did not deprive
federal courts of jurisdiction over the claims against the Appellants because the
commercial activities and waiver exceptions applied. 603 F.3d 1166, 1169 (9th Cir.
2010). Although this Court affirmed the District Courts finding as to Loomis, the
Court stated that the existence of an exception under the FSIA for Loomis claims
does not control whether the FSIA blocks Lasheens claims. Id. at 1172.
Case: 10-17034 01/24/2011 Page: 16 of 39
C.
THE DISTRICT COURTS FINDINGS

1.
The Waiver Exception As to Lasheen
The District Court based its conclusion that the waiver exception to the
FSIA applies to the Lasheen claim upon its reading of Joseph v. Office of the
Consulate Gen. of Nigeria, 830 F.2d 1018 (9th Cir. 1987), cert. denied, 485 U.S.
905 (1988). The District Court specifically based its analysis upon the existence of
an agreement to adjudicate a dispute as constituting a waiver by implication.
[ER 6:9-13]
Although the District Court made specific reference to the Agreement between
Loomis and the Cultural Office as a waiver of the FSIA [ER 6:17-19 and 7:1], it
considered a plan document [ER 7:2-4] to be the equivalent to an agreement,
between Lasheen and the Appellants, under its analysis. [ER 6:2-12]. The Court
acknowledged what it termed three wrinkles in this argument [ER 7:13; 8:1-20
and 9:1-11]1. The first wrinkle facing the District Court was the fact that the
booklet was not a contract. [ER 7:15-16]; the second wrinkle was that the plan
does not explicitly state against whom suits may be brought [ER 8:9-10]; and
the third wrinkle was that it is not obvious that the plan constitutes a contract
between the Egyptian defendants and Lasheen. [ER 9:1-3].
In analyzing the
1
In addition to acknowledging that there were three wrinkles, the Court noted And I concede
that the FSIA creates another level of concern [ER transcript at page 7: 10-15].
Case: 10-17034 01/24/2011 Page: 17 of 39
problems created by the document, the Court proceeded to state that: [t]hese
wrinkles do not appear to be significant because it does not fall to the plaintiff to
iron them out. [ER 9:13-14].
In making its waiver exception determination, the District Court did not
consider the Appellants' argument that because Lasheen was a civil servant of the
Egyptian government, the conduct of which Lasheen complained was governmental
rather than commercial, or their arguments that the alleged acts, of which Lasheen
complained, were "discretionary functions." [ER 131-135 & 139-141] under 28
U.S.C. 1605(a)(5)(A).
In their Memorandum in Support of their Motion to Dismiss, Appellants
argued that the conduct in providing health coverage to a civil servant is uniquely
sovereign, that because the plan in question is maintained outside of the United
States, ERISA would not be implicated, and that neither exception applies to
Lasheens claim [ER 131-143].
2.
The Commercial Activity Exception
After discussing the waiver exception, the District Court stated that because
he found that the waiver exception applies, the court does not discuss the
commercial activities exception. [ER 6:2-3]. In a footnote, the District Court
stated that [i]f forced to confront the issue, the court would hold that the Egyptian
defendants provision of health benefits in the United States under an ERISA
10
Case: 10-17034 01/24/2011 Page: 18 of 39
insurance framework constitutes commercial activity. [ER 6:22-24]. Indeed, at

the hearing on the Motion to Dismiss, the Court explained its interpretation of the
exception and its view that the conduct in providing ERISA is very ordinary. We
see ERISA cases in this court every other Tuesday. [ER 18:4-10]
V.
SUMMARY OF ARGUMENT
The District Court erred in equating a booklet to a contract where the

booklet amounts to no contract and contains no specificity as to contracting parties
and as to who may be sued. The wrinkles found by the District Court preclude
any finding that the plan constituted a waiver. The Courts waiver finding was
based on a waiver by implication. [ER 6:2] An implicit waiver is usually only
found where: "(1) a foreign state has agreed to arbitration in another country; (2) a
foreign state has agreed that a contract is governed by the law of a particular
country; and (3) a foreign state has filed a responsive pleading in a case without
raising the defense of sovereign immunity." Joseph, 830 F.2d at 1022 (citation
omitted). Inasmuch as there is no arbitration agreement and no contract between
the Appellants and Lasheen, and whereas, Egypt has asserted sovereign immunity
as an affirmative defense, the waiver exception is not available to Lasheen in this
case. Id. The District Court also erred in finding that the Lasheen met his burden
of providing evidence to indicate waiver of FSIA immunity. Lasheen provided
no evidence that there was an arbitration agreement and he provided no evidence
11
Case: 10-17034 01/24/2011 Page: 19 of 39
that there was any contract between himself and any of the Appellants. Instead of
producing the required evidence, he offered mere speculation that the selfdisclaiming Plan, offered only to Egyptian nationals, may constitute an implicit
waiver.
The booklet itself states: [t]his booklet is not a contract. [ER 119] Further,
because Lasheen was an Egyptian civil servant, the commercial activity exception
did not apply to his claims. And, even assuming arguendo that Lasheen was not a
civil servant, there is insufficient evidence to support a finding that the commercial
activities exception applies to the Lasheen claim. The District Court declined to
discuss the commercial activities exception to the FSIA, but stated that, if
confronted with the issue, the Court would hold that providing ERISA coverage in
the United States would, in and of itself, suffice as a commercial activity. Indeed,
at the hearing regarding this issue, the Court appeared convinced that providing
ERISA is very ordinary. [ER 18:8] We see ERISA cases every other
Tuesday. [ER 18:9] Assuming, arguendo, that this is an actual ERISA claim, the
analysis of the Court stopped short of examining the employee, the employer
and, most significantly, the required nexus between the claim and the commercial
activity.
Finally, the District Court erred in referring to specific substantive ERISA
provisions incorporated within the booklet in reaching its decision. [ER Opinion
12
Case: 10-17034 01/24/2011 Page: 20 of 39
at page 7:2-12] In so doing, the District Court ignored Gates v. Fine Foods, 54 F.3d
1457, 63 USLW 2730 (9th Cir.1995), which the Court cited within its August 31,
2010 Opinion. [ER 7:23] By referring to the ERISA provisions contained within the
Booklet, the Court placed the substantive cart before the jurisdictional horse.
Gates, supra., 54 F.3d 1457, at 1464, discussing NYSA-ILA Pension Trust Fund v.
Garuda Indonesia,7 F.3d 35 (2nd Cir. 1993).
VI.
ARGUMENT
A. Statement of Standard of Review

The existence of subject matter jurisdiction under the Foreign Sovereign
Immunities Act is a question of law subject to de novo review. See Coyle v. P. T.
Garuda Indonesia, 363 F.3d 979, 984 n. 7 (9th Cir. 2004); Blaxland v.
Commonwealth Dir. of Public Prosecutions, 323 F.3d 1198, 1203 (9th Cir. 2003);
Park v. Shin, 313 F.3d 1138, 1141 (9th Cir. 2002); Corza v. Banco Cent. de
Reserva Del Peru, 243 F.3d 519, 522 (9th Cir. 2001); Adler v. Federal Republic of
Nigeria, 219 F.3d 869, 874 (9th Cir. 2000); In re Estate of Ferdinand Marcos
Human Rights Litig., 94 F.3d 539, 543 (9th Cir. 1996). That is, the Court of Appeal
reviews the case from the same position as the district court, as if it had not been
heard before and no decision had been rendered. League of Wilderness Defenders v.
Forsgren, 309 F.3d 1181, 1183 (9th Cir. 2002); Ka Makani 'O Kohala Ohana Inc.
13
Case: 10-17034 01/24/2011 Page: 21 of 39
v. Water Supply, 295 F.3d 955, 959 (9th Cir. 2002); Ness v. Commissioner, 954
F.2d 1495, 1497 (9th Cir. 1992). Under the de novo review standard, the district
court's opinion is entitled to no deference. Sklar v. Commissioner, 282 F.3d 610,
612 (9th Cir. 2002). Thus, an issue of statutory interpretation is reviewed de novo.
Chevron USA Inc. v. Bronster, 363 F.3d 846, 855 (9th Cir. 2004). The issue of
waiver, involving mixed questions of law and fact, is also generally reviewed de
novo. Feldman v. Allstate Ins. Co., 322 F.3d 660, 665 (9th Cir.) (waiver of marital
privilege), cert. denied, 540 U.S. 875 (2003). A mixed question of law and fact
occurs when the historical facts are established, the rule of law is undisputed, and
the issue is whether the facts satisfy the legal rule. Pullman-Standard v. Swint, 456
U.S. 273, 289 n. 1982). If however the application of the law to the facts requires
an inquiry that is "essentially factual," review is for clear error.
Zivkovic v.
Southern California Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002); Koirala v.
Thai Airways Ini'l, Ltd., 126 F.3d 1205, 1210 (9th Cir. 1997). Review under the
clearly erroneous standard is significantly deferential, requiring a "definite and firm
conviction that a mistake has been committed." Easley v. Cromartie, 532 U.S. 234,
242 (2001); Concrete Pipe, Prods. v. Construction Laborers Pension Trust, 508
U.S. 602, 623 (1993). If the district court's account of the evidence is plausible in
light of the record viewed in its entirety, the court of appeals may not reverse it
even though convinced that had it been sitting as the trier of fact, it would have
14
Case: 10-17034 01/24/2011 Page: 22 of 39
weighed the evidence differently. Husain v. Olympic Airways, 316 F.3d 829, 835
(9th Cir. 2002), affd, 540 U.S. 644 (2404).
B. The District Court Erred in its Determination That The FSIA Does
Not Apply to Lasheens Claim.
1. Immunity is presumed under the FSIA.
Under the FSIA, "subject to existing international agreements to which the
United States is a party at the time of enactment of this Act a foreign state shall be
immune from the jurisdiction of the courts of the United States and of the States
except as provided in sections 1605 to 1607 of this chapter." 28 U.S.C. 1604.
"The Foreign Sovereign Immunities Act provides the sole basis for obtaining
jurisdiction over a foreign state in the courts of this country." Saudi Arabia v.
Nelson, 507 U.S. 349, 355 (1993) (citing Argentine Republic v. Amerada Hess
Shipping Corp., 488 U.S. 428, 443 (1989)).
The FSIA codifies a presumption that a foreign state, including a political
subdivision or an agency or instrumentality of a foreign state, is immune from the
jurisdiction of United States courts, unless a specific statutory exception applies.
See 28 U.S.C. 1604. Absent an exception, a federal court lacks subject matter
jurisdiction over a claim against a foreign state. Saudi Arabia v. Nelson, 507 U.S.
at 355 (citations omitted). Under the restrictive theory of sovereign immunity
reflected in the Act, a state is immune from the jurisdiction of foreign courts with
15
Case: 10-17034 01/24/2011 Page: 23 of 39
respect to its sovereign, governmental or public acts, but not as to acts, which are
commercial or private in nature. Id., 507 U.S, at 359-360 (citations omitted). Once
a defendant has made a prima facie showing that it is a foreign sovereign, the
plaintiff has the burden of coming forward with evidence to show that one of the
exceptions to immunity applies. Cargill Intl, S .A. v. M/T Pavel Dybenko, 991 F.2d
at 1016. The ultimate burden of persuasion is on the defendant. Lasheen does not
dispute that each of the Appellants falls within the statutory definition of a "foreign
state" under the FSIA. 28 U.S.C. 1603(a), (b). Thus, a determination that the
FSIA is applicable, and that the exception relied upon by the District Court does not
apply, as discussed in the following sections, deprives the District Court of subject
matter jurisdiction over each of the Appellants with respect to the Lasheen claim.
2.
The "waiver" exception to the FSIA does not apply to

Lasheens claim against the Appellants.
Section 1605(a)(1) of the FSIA provides that a foreign state is not immune
from the jurisdiction of a court within the United States in a case in which the
foreign state "has waived its immunity either explicitly or by implication ... ." 28
U.S.C. 1605(a)(1). An explicit waiver may occur, for example, when a foreign
state renounces its immunity by treaty, or by contract. H.R. Rep. No. 94-1487, 94th
Cong., 2d Sess. 18, reprinted in 1976 U.S. Code Cong. & Admin. News 6604 6617.
The implicit waiver exception to the FSIA is to be construed narrowly. Cargill,
16
Case: 10-17034 01/24/2011 Page: 24 of 39
991 F.2d at 1017 (citations omitted); Joseph, 830 F.2d at 1022 (citation omitted).
An implicit waiver is usually found only where: "(1) a foreign state has agreed to
arbitration in another country; (2) a foreign state has agreed that a contract is
governed by the law of a particular country; and (3) a foreign state has filed a
responsive pleading in a case without raising the defense of sovereign immunity."2
Joseph, 830 F.2d at 1022 (citation omitted).
The only evidence offered by Appellee regarding the terms of the
relationship between Lasheen and any of the Appellants is the summary referred to
by the District Court, which purports to explain plaintiffs benefits under the
plan. [ER 7:2-4] However, that booklet is an insufficient basis upon which to
premise a waiver of sovereign immunity. The plan summary is not a contract, and
specifically disclaims any binding legal effect:
No provision contained in this booklet nor any portion of the Health
Care Plan shall confer upon any covered person or participant or
entity acting on behalf of, or in place of, the covered person or
participant, any right or cause of action, either at law or in equity
against the Plan Administrator, the Third Party Administrator, the
Employer, or the Utilization Review Manager for the acts of any
Hospital in which care is received, or for the acts of any physician, or
other provider from whom services are received under the Plan.
This booklet is not a contract. It explains in non-technical language
the essential features of your Employee Benefit Program. Contact the
2 In Their Answer to the Complaint, the Appellants raised the affirmative defense of
immunityundertheFSIA:AnsweringDefendants,asforeignsovereignsareimmunefrom
suitbyplaintiffinthecourtsoftheUnitedStatespursuantto291601etseq.[ER390:27
28]
17
Case: 10-17034 01/24/2011 Page: 25 of 39
Human Resources Department if there are any questions regarding

coverage. [ER 119]
Appellee has put forth no evidence of the terms of a contract between
Lasheen and any of the Egypt Defendants, pursuant to which any of the Appllants
agreed to arbitrate a dispute with Lasheen in the United States, nor that a contract
between any of them and Lasheen is governed by the law of a particular country.
Moreover, as noted previously, Appellants asserted the defense of sovereign
immunity in their Answer to Lasheen's Complaint, and their subsequent
participation in the litigation does not invalidate that defense.
Amorrortu v.
Republic of Peru, 2008 WL 3338029 at *3 (citations omitted).

In this case, the Court acknowledged that the portion of the Plan -brought to
its attention by Lasheen is not a contract and poses three wrinkles. In stating
that it does not fall to the plaintiff to iron what the Court termed wrinkles, the
Court negated the presumption the Appellants enjoy under FSIA. In so doing, the
District Court also departed from authority specifically requiring that a plaintiff
meet her/his burden of producing evidence of an implicit waiver. See, e.g., Frolova
v. Union of Soviet Socialist Republics, 761 F.2d 370, 377 (7th Cir. 1985), (noting
that courts have been reluctant to stray beyond these examples when considering
claims that a nation has implicitly waived its defense of sovereign immunity.).
Finally, a waiver as to Loomis does not extend to Lasheen. As stated in
Cargill, [i]t is rare for a court to find that a countrys waiver of immunity
18
Case: 10-17034 01/24/2011 Page: 26 of 39
extends to third parties not privy to the contract. When a case involves an implied
waiver, we think that a court should be even more hesitant to extend waiver in favor
of third parties. We agree with other courts that such a waiver will not be implied
absent a strong evidence of the sovereigns intent. Cargill, 991 F.2d at 1017
(citations omitted). This is consistent with the narrow application of the waiver
exception recognized by the courts. Id.
The District Court suggests that Lasheens attempt to convert the booklet
into a contract should succeed. The Court indicated that by Lasheens labeling of
the booklet as the equivalent to an agreement, Lasheen met his burden, and
Appellants became obligated to argue against the booklet. [ER 10:1-5] However,
with the presumption of immunity attached to Appellants, Appellee was required
to provide the specific type of evidence contemplated by the precedent of this
Circuit. See, Joseph, 830 F. 2d at 1022 (citation omitted). Appellee failed to do
so, and the burden never shifted to Appellants.
Moreover, The District Court appears to suggest that somehow the forumselection clause in the Loomis contract plays part in its analysis as to Lasheen.
See, fn. 4 of the August 31, 2010 Opinion stating that the waiver analysis as to
Loomis remains law of the case. [ER 6:25-26] The Appellants repeatedly stated
that Lasheen is not a party to the contract between the Cultural Office and Loomis.
[ER 142:1-9; ER 15:11-17; and ER 18:11-21]
19
Case: 10-17034 01/24/2011 Page: 27 of 39
3. The commercial activity exception does not apply to

Lasheen's claims against the Egypt Defendants.
In its Opinion finding that the FSIA does not apply to Lasheens
claim, the District Court declined to specifically discuss the commercial activities
exception as it relates to the ERISA Claim. [ER 6:2-3] However, the Court did
state that [i]f forced to confront the issue, the court would hold that the Egyptian
defendants provision of health benefits under an ERISA insurance framework
constitutes commercial activity. [ER 6:22-24] The Courts analysis failed to take
into consideration the status of the Plaintiff who claimed to be an employee under
the Plan, the status and nature of the activity, which is specific to the case, and the
nexus required to show a commercial activity under the FSIA. The activity in
question is not commercial. However, even if it is, it is not enough for the
defendant merely to have engaged in commercial activity. Rather the statutory
language requires that the plaintiffs cause of action be based upon the
commercial activity in question. Thus, a court must focus only on those specific
acts that form the basis of the suit to determine whether those acts constitute or are
in connection with the commercial activity. Gates v. Victor Fine Foods, Supra.,
54 F.3d 1457 (emphasis in original), at 1463 (internal cite omitted) . Here the
District Court did not focus only on those specific acts that form the basis of the
suit, including the facts that Lasheen was a civil servant, the nature of the activity
20
Case: 10-17034 01/24/2011 Page: 28 of 39
carried out by Appellants, and whether the action was private, governmental, or
sovereign in nature.
a. Lasheen was a civil servant
A foreign government's civil servants, diplomats and soldiers do not
qualify for the commercial activity exception to the FSIA. See Holden v, Canadian
Consulate, 92 F.3d 918, 921 (9th Cir. 1996). See also, El-Hadad v. United Arab
Emirates, 496 F.3d 658, 664 (C.A.D.C. 2007) (citations omitted); Kato v. Ishihara,
360 F.3d 106, 111-112 (2d Cir. 2004); If a person is deemed to be a civil servant,
the inquiry into the commercial activity exception stops. The Ninth Circuit treats
the civil servant question as effectively superseding the commercial/governmental
distinction. Holden, 92 F.3d at 921 ("We adopt the standard suggested by the
legislative history, that is, employment of diplomatic, civil service or military
personnel is governmental and the employment of other personnel is commercial.
Because private parties cannot hire diplomatic, civil service or military personnel,
such hiring is necessarily governmental."). Thus, the Ninth Circuit looks to the
legislative history of the FSIA as the analytical framework for the issue:
Also public or governmental and not commercial in
nature would be the employment of diplomatic, civil service, or
military personnel, but not the employment of American
citizens or third country nationals by the Foreign state in the
United States.... Activities such as a government's ...
employment or engagement of laborers, clerical staff or public
21
Case: 10-17034 01/24/2011 Page: 29 of 39
relations or marketing agents ... would be among those included

within the definition [of commercial activity].
Holden, 92 F.3d at 921, quoting H.Rep. No. 94-1487, 94th Cong., 2d Sess.
at16, reprinted at 1976 U.S.C.C.A.N. 6604, 6615. Cf. El-Hadad, 496 F.3d at 664
(if a person is not deemed to be a civil servant, the question then becomes whether
his work constitutes commercial activity, i.e., whether it involves the exercise of
powers that can also be exercised by private citizens, as opposed to those exclusive
to sovereigns). "In determining whether a foreign government's employment of
personnel in the United States is 'civil service,' and therefore 'governmental,' we do
not look principally to whether that employment resembles the contemporary civil
service of the American democracy, but we instead inquire whether 'the particular
actions that the foreign state performs ... are the type of actions by which a private
party engages in "trade and traffic or commerce." ' " Kato, 360 F.3d at 114 (quoting
Republic of Argentina v. Weltover, Inc., 504 U.S. at 614) (emphasis in original). See
also Anglo-Iberia Underwriting Management Company v. Lodderhose, 2008 WL
190364, *4 (S.D.N.Y. Jan. 22, 2008) (plaintiffs sued the administering agency for
Indonesia's social security program for damages arising from an international
reinsurance fraud scam perpetrated by one of the program's employees, and others,
while the employee was studying in the United States under the program's
sponsorship; "the nature of Sartono's employment, insofar as it is at issue here, is
therefore employment in the provision of a governmental program of health
22
Case: 10-17034 01/24/2011 Page: 30 of 39
benefits through the collection of employer contributions and payroll deductions;

such employment is by nature non-commercial;" therefore the District Court lacked
jurisdiction over plaintiffs' claim).
The El-Hadad court identified several non-exclusive factors relevant to a
determination of whether a foreign government's employee is a civil servant,
including: (1) how the foreign country's laws define its civil service, and whether
the employee's duties and job title come within that definition; (2) the nature of the
employee's employment relationship with the foreign country (e.g., contractual or
based solely on the foreign country's civil service laws); (3) the nature of the
employee's work; and (4) the relevance of the employee's foreign citizenship to the
facts of the case (noting that a "person hired by his own country's government to
work abroad should have a somewhat lesser expectation of suing his homeland in
his host nation's courts"). El-Hadad, 496 F.3d at 665 (citation omitted).
Appellee did not put forth any evidence of the terms of any alleged
employment contract between Lasheen and any of the Egypt Defendants. There is
no evidence, however, that Lasheen was employed as a laborer, clerical staff
member or public relations or marketing agent by any of the Egypt Defendants.
Holden, 92 F.3d at 921. It is undisputed that Lasheen was a professor in his native
Egypt, and that he was sent by [the Government of Egypt] to the United States to
23
Case: 10-17034 01/24/2011 Page: 31 of 39
study and train as a student at the University of California at Davis. [ER 151-152:810]
Eligibility for the medical benefits plan under which Lasheen sought
coverage was "limited to teachers as long as they are employed by the Embassy of
Egypt and Educational Bureau working at least 30 hours per week, and
International Students who: (1) are eligible participants of a student or international
student insurance program sponsored by the government of their Home Country, or
by another sponsor acknowledged and approved by the Company; and (2) satisfy
the Eligibility Requirements detailed below." [ER 76] The medical benefit plan
summary of the Plan under which Lasheen sought coverage specifies the
requirements for eligibility, including the following:
As an International Student ... or teacher, you are eligible for
coverage under this Plan only if you satisfy all of the following
requirements:
a. Maintain domicile and citizenship or naturalization
status in the home Country;
b. are under age 65;
c. are a student enrolled for a minimum of six credit
hours per semester (if applicable) and are engaged,
full-time, in educational or research activities while
attending an Institution of Higher Learning in the
United States, or a teacher working at least 30 hours
per week employed by the Embassy of Egypt and
Educational Bureau;
24
Case: 10-17034 01/24/2011 Page: 32 of 39
d. have duly demonstrated evidence of good health at the

point ofentry into the United States, as required by the
government of your Home Country, if applicable;
e. hold a valid, current foreign passport, a valid "F" or
"J" visa, issued by U.S. Department of State, and a
valid Form IAP-66, or Form 1-20, issued by the U.S.
Immigration
and
Naturalization
Service;
and
f. have neither received nor applied for naturalization or
permanent residency status in the United States, Puerto
Rico or Canada, or for any other change in your
immigration status in the United States as an "F" or "J"
visa holder. [ER 76]
The plan itself was thus designed for the benefit of Egyptian nationals
in the United States temporarily, teaching or studying, under a valid "F" or "J"
visa. Regardless of whether Lasheen's studies in the United States were sponsored
by the "Home Country," i.e., Egypt, or by its Cultural and Educational Bureau, or
by the Embassy, such sponsorship of a student in a foreign country is not "the type
of actions by which a private party engages in trade and traffic or commerce."
Kato, 360 F.3d at 114 (quoting Republic ofArgentina v. Weltover, Inc., 504 U.S.
607). Moreover, Lasheen as a temporary resident of the United States, based on
his status as a visiting student, "should have a somewhat lesser expectation of
suing his homeland in his host nation's courts." El-Hadad, 496 F.3d at 665. Under
all of the circumstances, and in the absence of any evidence or allegations by
25
Case: 10-17034 01/24/2011 Page: 33 of 39
Appellee to the contrary, Lasheen was a civil servant and, as such, the commercial
activity exception is inapplicable.
b. The commercial activity exception is inapplicable even if
Lasheen was not a civil servant
Even if Lasheen is not deemed an Egyptian civil servant, he cannot establish
jurisdiction over the Appellants based upon the commercial activity exception. To
assess whether the commercial activity exception applies, the specific acts of each
named defendant alleged to form the basis of the plaintiffs suit must be examined
and a determination made whether that activity is sovereign or commercial, looking
at its nature rather than its purpose. Amorrortu v. Republic of Peru, 2008 WL
3338029, *4 (citing cases). Lasheen alleges that each of the Egypt Defendants was
"doing business" in the Eastern District of California. [ER 187] Lasheen further
alleges that his "employment as a visiting Egyptian scholar" "includes interstate
commerce within the meaning of 29 U.S.C. 1003(a) for which Defendants are
responsible to Plaintiff pursuant to the employee benefit plans." [ER 186-188] Each
of the Appellants is alleged to be the "policy holder, agent, and/or Plan
Administrator of the employee benefit plans in question, and as such, operates,
controls, and has discretion over the plans and is a fiduciary with respect to the plan
and Plaintiff." [ER 186-187] The essence of Lasheen's claim against the Appellants
collectively is that they declined to pay benefits, expenses and other amounts,
26
Case: 10-17034 01/24/2011 Page: 34 of 39
which he claims were due to him under certain employee benefit plans, in violation
of ERISA, 29 U.S.C. 1001 et seq. [ER 188-189]
The medical benefits plan booklet, however, identifies the Cultural and
Educational Bureau as the Employer under whose auspices the plan was offered.
[ER 2:7-8] Lasheen has not alleged that the Egypt Defendants are alter egos; nor
has he offered evidence of any particular conduct by either Egypt or the Embassy of
Egypt giving rise to his claims. Thus, there is insufficient evidence of commercial
activity by these entities to support a waiver of the FSIA. Nor is there sufficient
evidence of "commercial activity" by the Cultural and Educational Bureau to
support a waiver of the FSIA as to that entity. For all that appears from the record,
the Cultural and Educational Bureau's offering of a medical benefits plan to
Lasheen was merely incidental to his studies in California under Egyptian
sponsorship. Lasheen's participation in the study program was itself an outgrowth
of his job at the public university in Egypt. Assuming arguendo that offering a
medical benefit plan might be deemed a type of commercial activity, clearly not the
case here, the Appellants submit that the sponsorship of an educational program,
from which the medical benefit plan derives, is not the type of activity typically
carried on by private persons for profit, and the alleged jurisdictional nexus is
simply too attenuated. As such, the commercial activity exception does not apply
to Lasheen's claims.
27
Case: 10-17034 01/24/2011 Page: 35 of 39
4. The acts of which Lasheen complains were discretionary

functions and therefore cannot form a basis for
jurisdiction under the FSIA.
Under 28 U.S.C. 1605(a)(5), a foreign state is not immune from
jurisdiction in a case seeking money damages for personal injury or death occurring
in the United States and caused by a tortuous act or omission of the foreign state, or
by an official or employee thereof acting within the scope of his office or
employment, except that any claim based upon the exercise or performance or
failure to exercise or perform a discretionary function, regardless of whether the
discretion is abused, shall not form the basis for jurisdiction. A similar exception
under the Federal Tort Claims Act has been so applied. See 28 U.S.C. 2860(a);
H.R. Rep. 1487, 94`h Cong., 2d. Sess. 18, reprinted in 1976 U.S.C.C.A.N. 6604,
6620; MacArthur Area Citizens Assn'v. Republic of Peru, 809 F.2d 918, 921-922
.(D.C. Cir. 1987); U.S. v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig
Airlines), 467 U.S. 797, 813-814 (1984) (discretionary function exception was "to
prevent judicial 'second-guessing' of legislative and administrative decisions
grounded in social, economic and political policy through the medium of an action
in tort").
While courts have recognized that the "tortuous act" exception was
designed primarily to remove immunity for cases arising from traffic accidents, see,
e.g., Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517, 1525
28
Case: 10-17034 01/24/2011 Page: 36 of 39
(C.A.D.C. 1984), cert. denied, 470 U.S. 1051 (1985), the Appellants respectfully
submit that, upon Lasheen's claim that the Appellants improperly denied him
medical coverage, the "discretionary function" limitation applies as well to the
determination that Lasheen's request for benefits was foreclosed by a pre-existing
condition under the Plan.
VII. CONCLUSION
Based on the foregoing, appellants Egypt, the Embassy of Egypt, and the
Cultural and Educational Bureau, respectfully request the Court to reverse the
District Court's decision; issue an order holding that no exception to the FSIA is
applicable as to Lasheen and dismiss the Lasheen claim against the Appellants.
Dated: January 21, 2011
Respectfully Submitted,
HERMINA LAW GROUP
_________/s/___________________
John Hermina
George Hermina
Attorneys for Egypt, The Embassy
of Egypt and the Cultural and Egypts
Cultural and Educational Bureau
29
Case: 10-17034 01/24/2011 Page: 37 of 39
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation set forth in Rule
37(a)(7)(b) of the Federal Rules of Appellate Procedure. This brief uses a
proportional typeface and contains 7,868 words.
30
Case: 10-17034 01/24/2011 Page: 38 of 39
STATEMENT OF RELATED CASES
Pursuant to Ninth Circuit Rule 28-2.6, appellants Embassy of the Arab Republic of
Egypt, The Arab Republic of Egypt, and the Embassy of Egypt Cultural and
Educational Bureau state that they are not aware of any related cases pending in this
Court.
31
Case: 10-17034 01/24/2011 Page: 39 of 39
PROOF OF SERVICE
IDECLARETHAT:
IamemployedintheCountyofPrinceGeorges,StateofMaryland.Iamoverthe
ageof18andnotapartytothewithinaction;mybusinessaddressis8327CherryLane,
Laurel,Maryland20707.
OnJanuary21,2011,Iservedthefollowing:
AppellantsExcerptofRecorddocumentbydeliveringasnotedbelow:
XXMailbyplacingatruecopythereofenclosedinasealedenvelope
withpostagefullyprepaid,intheUnitedStatesMail,atLaurel,Maryland.
Addressedasfollows:
RandyM.Andrus,Esquire
ANDRUSATTORNEYS
AProfessionalCorporation
5406West11000North,Suite103303
Highland,Utah84003
Telephone:(801)7637993
Fax:(801)7563936
XXAppellantsBriefviatheCourtsElectronicFilingSystem.
Ideclareunderpenaltyofperjurythatthisdeclarationistrueandcorrect,andwas
executedonJanuary21,2011,atLaurel,Maryland.
_________/S/_ginawrobel___________
GinaWrobel
32

Ninth Circuit Egypt Sovereign Immunity Opening Brief Lasheen

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Ninth Circuit Egypt Sovereign Immunity Opening Brief Lasheen

Uploaded by

Copyright:

Available Formats

Case: 10-17034 01/24/2011 Page: 1 of 39

ID: 7621490 DktEntry: 7

Docket No. 10-17034

United States Court of Appeals

MOHAMED E. LASHEEN and THE LOOMIS COMPANY,

(301) 206-3166 PRINTED ON RECYCLED PAPER

Case: 10-17034 01/24/2011 Page: 2 of 39

ID: 7621490 DktEntry: 7

TABLE OF AUTHORITIES................................................................................ iii

Case: 10-17034 01/24/2011 Page: 3 of 39

ID: 7621490 DktEntry: 7

Case: 10-17034 01/24/2011 Page: 4 of 39

ID: 7621490 DktEntry: 7

Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517

Blaxland v. Commonwealth Dir. of Public Prosecutions, 323 F.3d 1198

Case: 10-17034 01/24/2011 Page: 5 of 39

ID: 7621490 DktEntry: 7

In re Estate of Ferdinand Marcos Human Rights Litig., 94 F.3d 539

Joseph v. Office of the Consulate Gen. of Nigeria, 830 F.2d 1018

Kato v. Ishihara, 360 F.3d 106 (2d Cir. 2004) ..............................................21,22,25

Ness v. Commissioner, 954 F.2d 1495 (9th Cir. 1992) ...........................................13

Case: 10-17034 01/24/2011 Page: 6 of 39

ID: 7621490 DktEntry: 7

Republic of Argentina v. Weltover, Inc., 504 U.S. 607 ......................................22,25

Case: 10-17034 01/24/2011 Page: 7 of 39

ID: 7621490 DktEntry: 7

Case: 10-17034 01/24/2011 Page: 8 of 39

ID: 7621490 DktEntry: 7

A. The District Courts Jurisdiction

Case: 10-17034 01/24/2011 Page: 9 of 39

ID: 7621490 DktEntry: 7

Case: 10-17034 01/24/2011 Page: 10 of 39

ID: 7621490 DktEntry: 7

C. Filing Dates Establishing Timeliness of Appeal

STATEMENT OF THE CASE

A. Nature of the Case

Case: 10-17034 01/24/2011 Page: 11 of 39

ID: 7621490 DktEntry: 7

Case: 10-17034 01/24/2011 Page: 12 of 39

ID: 7621490 DktEntry: 7

Case: 10-17034 01/24/2011 Page: 13 of 39

ID: 7621490 DktEntry: 7

The Health Care Benefits Plan

Case: 10-17034 01/24/2011 Page: 14 of 39

ID: 7621490 DktEntry: 7

maintain domicile and citizenship or naturalization status in the

are under age 65;

are a student enrolled for a minimum of six credit hours per

have duly demonstrated evidence of good health at the point of

hold a valid, current foreign passport, a valid "F" or "J" visa,

have neither received nor applied for naturalization or

Case: 10-17034 01/24/2011 Page: 15 of 39

ID: 7621490 DktEntry: 7

Canada, or for any other change in your immigration status in

A covered person's spouse who was a U.S. citizen or had permanent

Appellants Prior Appeal

As this Court noted in its summary of facts, in Embassy of the Arab

Case: 10-17034 01/24/2011 Page: 16 of 39

ID: 7621490 DktEntry: 7

THE DISTRICT COURTS FINDINGS

The Waiver Exception As to Lasheen

Case: 10-17034 01/24/2011 Page: 17 of 39

ID: 7621490 DktEntry: 7

The Commercial Activity Exception