In this federal civil rights and RICO action, the claims
by two United Nations employees, who sued that body and several key officials, were
dismissed under international immunity conventions and affirmed by Second
Circuit whose disposition also required dismissal of state law claim of
indecent assault for lack of supplemental jurisdiction
Except as noted, the facts of the case were not contested.
Cynthia Brzak (Plaintiff) is an American citizen who worked in Geneva for the
United Nations High Commissioner for Refugees (UNHCR). Nasr Ishak (secondary
plaintiff) is a dual citizen of France and Egypt. She also worked for the UNHCR
in Geneva.
Defendant Kofi Annan was formerly the UN Secretary‑General
with his office in New York City. Defendant Ruud Lubbers was the UN High
Commissioner for Refugees (UNHCR), and Defendant Wendy Chamberlin was his
deputy. Both had Geneva assignments.
In this federal civil rights suit, Plaintiff also contended
that during a meeting of UNHCR staff members in Geneva in 2003, Lubbers
improperly grabbed her body in an indecent—but unspecified—manner.
On Ishak’s advice, Plaintiff filed an internal complaint
against Lubbers with the UN’s Office of Internal Oversight Services (OIOS). The
OIOS issued a report confirming Plaintiff’s complaint and recommending that the
UN discipline Lubbers. Plaintiff alleged that Defendant Annan disregarded the finding
and eventually cleared Lubbers. Plaintiff then appealed through the UN’s
internal complaint adjustment process.
Both Plaintiffs alleged that, as a result of Plaintiff
Brzak’s complaint, and Ishak’s help in pursuing it, UN officials and employees
retaliated against them. For example, they alleged that these officials
unfairly distorted Plaintiff’s work assignments and denied Ishak certain merited
promotions.
The Plaintiffs sued the UN and the individual Defendants in
the Southern District of New York. They alleged sex discrimination and
retaliation in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., plus violations of the Racketeer Influenced and Corrupt
Organizations Act (RICO). They also alleged various state common law torts and
sought for those claims to be adjudicated in federal court under its supplemental
jurisdiction powers.
The UN formally returned the complaint to the American
ambassador to the UN and moved to dismiss the case on the grounds of immunity,
a motion supported by the local U.S. Attorney’s Office. [ Brzak, 551 F.Supp.2d
at 316; see Letter of United States Attorney for the Southern District of New
York, Plaintiff v. UN, 06‑Civ.‑03432, 2007 WL 4846084 (S.D.N.Y., Oct. 2,
2007).]
The district court granted the motion. The Judge concluded
that the controlling law derived from the Convention on Privileges and
Immunities of the United Nations, Feb. 13, 1946, entered into force with
respect to the United States Apr. 29, 1970; [21 U.S.T. 1418; T.I.A.S. 6900; 1
U.N.T.S. 16] (the CPIUN), and that it granted the UN absolute immunity, which
it had not waived, and dismissed the complaint against it.
With regard to the individual defendants, the Judge
concluded that the CPIUN granted them the same form of functional immunity that
former diplomats enjoy under international law. This functional immunity, the
judge held, applied to employment‑related suits.
An appeal followed and, in a March 2, 2010 opinion, the U.S.
Court of Appeals for the Second Circuit affirmed the district court’s decision.
This court then explained its ruling as follows.
“As the District Court correctly concluded, the [President
of the] United States has ratified the CPIUN which extends absolute immunity to
the UN. Specifically, the CPIUN provides that ‘[t]he UN ... shall enjoy
immunity from every form of legal process except insofar as in any particular
case it has expressly waived its immunity.’ Id. art. II, § 2. If the CPIUN
applies, then [Plaintiffs’] claims fail. The answer to this question turns on
whether the CPIUN is self‑executing.”
“The parties do not dispute that the CPIUN is binding on the
United States as a matter of international law. However, they disagree about
whether American courts must recognize the immunity [as domestically binding
law.] Cf. Medellin v. Texas, 552 U.S. 491, 504, 506 ... (2008) (acknowledging
that an International Court of Justice opinion is binding on the United States
as a matter of international law, while holding that the same opinion lacks
domestic legal effect).”
“Plaintiffs contend that the CPIUN should not be enforced by
American courts because it is not self‑executing, and consequently cannot be
enforced absent additional legislation which was never passed. See Medellin,
supra at 505. Whether a treaty is self‑executing depends on whether ‘the treaty
contains stipulations which ... require no legislation to make them operative;’
if so, ‘they have the force and effect of a [domestic] legislative enactment.
Id. at 505‑06 (quoting Whitney v. Robertson, 124 U.S. 190 ... (1888)).”
“In determining whether a treaty is self‑executing, we look
to the text, the negotiation and drafting history, and the post‑ratification
understanding of the signatory nations. Medellin, supra at 506‑07.
Additionally, the executive branch’s interpretation of a treaty ‘is entitled to
great weight.’ Id. at 513 (quoting Sumitomo Shoji America, Inc. v. Avagliano,
457 U.S. 176, 184‑85 ...(1982)). Based on these criteria, we have little
difficulty concluding that the CPIUN is self‑executing.”
“CPIUN Section 34 states ‘[i]t is understood that, when an
instrument of accession is deposited on behalf of any Member, the Member will
be in a position under its own law to give effect to the terms of this
convention.’ When the United States acceded to the CPIUN in 1970—by the
President’s ratification, with the advice and consent of the Senate—it was
affirming that it was ‘in a position under its own law to give effect’ to the
CPIUN’s terms at that time.”
“This means that the treaty became [domestically] effective
at ratification and, therefore, is self‑executing. ‘[T]he label self‑executing
usually is applied to any treaty that, according to its terms, takes effect
upon ratification. Mora v. New York, 524 F.3d 183, 193 n. 16 (2d Cir. 2008)
...” [(quoting United States v. Li, 206 F.3d 56, 67 (1st Cir.2000) (en banc)
(Selya & Boudin, JJ., concurring)).] [111]
“The ratification history of the CPIUN reinforces this
conclusion. During testimony before the Senate Foreign Relations Committee as
it considered whether to recommend that the Senate ratify (sic) the CPIUN, the
Legal Advisor to the State Department stated that: ‘It is clear from the
language of the convention ... that the convention is self‑executing and [that]
no implementing legislation is necessary.’ S. Exec. Rep. No. 91‑17, App. at 16
(Statement of John R. Stevenson, Legal Advisor, Department of State); see also
id. at 13 (‘I would like to have the record reflect[ ] that we regard the
convention as self‑executing.’). The Foreign Relations Committee’s report on
the CPIUN also expressed the view that ‘the convention is self‑executing and
will require no implementing legislation.’ Id. at 5.”
“Finally, the executive branch continues to assert that the
CPIUN is self‑executing. See Letter of U.S. Attorney for the Southern District
of New York, Brzak v. UN, ... 2007 WL 4846083 (S.D.N.Y., Oct. 2, 2007). These
views, as we have seen, are entitled to ‘great weight.’ Medellin, supra at 513
...; Mora, supra at 204. Consequently, we hold that the CPIUN is self‑executing
and applies in American courts without implementing legislation.”
“As the CPIUN makes clear, the UN enjoys absolute immunity
from suit unless ‘it has expressly waived its immunity.’ Id. art. II, § 2.
Although the Plaintiffs argue that purported inadequacies with the UN’s
internal dispute resolution mechanism indicate a waiver of immunity, crediting
this argument would read the word ‘expressly’ out of the CPIUN. The UN has not
waived its immunity. [See Letter from Nicolas Michel, UN Under‑Secretary‑General
for Legal Affairs, to Alejandro D. Wolff, Deputy Permanent Representative of
the United States of America to the UN (May 15, 2006); Letter from Nicolas
Michel, UN Under‑Secretary‑General for Legal Affairs, to John R. Bolton,
Permanent Representative of the United States, to the UN (Oct. 19, 2006).]
Consequently, the UN enjoys absolute immunity and the district court’s decision
to dismiss the claims against the UN was correct.”
“Our conclusion is further confirmed by the International
Organizations Immunities Act of 1945, 22 U.S.C. § 288a(b) (the IOIA). [It]
provides that international organizations designated by the President should
receive the ‘same immunity from suit and every form of judicial process as is
enjoyed by foreign governments.’ The UN has been so designated. See Exec. Ord.
No. 9698, 11 Fed. Reg. 1809 (Feb. 19, 1946).”
“The Plaintiffs [also] argue that designated international
organizations no longer have absolute immunity in all cases, because, since
that act was passed, Congress has passed the Foreign Sovereign Immunities Act,
28 U.S.C. § 1602‑11(FSIA), which strips foreign sovereigns of their immunity in
certain [specified] circumstances.”
“Plaintiffs argue that it is this narrower definition of
sovereign immunity that now defines what sort of immunity the IOIA applies to
international organizations. Although this argument has been rejected by at
least one other Court of Appeals, see Atkinson v. Inter‑American Dev. Bank, 156
F.3d 1335, 1340‑42 (D.C. Cir. 1998), we need not resolve whether Plaintiffs’
argument is correct for at least two reasons.”
“The first is that, whatever immunities are possessed by
other international organizations, the CPIUN unequivocally grants the UN
absolute immunity without exception. The second is that the Plaintiffs have not
presented any argument, either at the district level or to us, which would
suggest that one of FSIA’s exceptions to immunity would apply. Therefore, even
under the Plaintiffs’ interpretation of the IOIA, the UN would still be immune
from suit.” [112].
“The Plaintiffs also sued three former UN officials. The
CPIUN also addresses their immunity: ‘The Secretary‑General and all Assistant
Secretaries‑General shall be accorded ... the privileges and immunities ...
accorded to diplomatic envoys, in accordance with international law.’ Id. Art.
v, § 19. As we have determined above that the CPIUN is a self‑executing treaty,
this provision is binding on American courts. International law provides
extensive protection for diplomatic envoys. See The Vienna Convention on
Diplomatic Relations, Apr. 18, 1961, entered into force with respect to the
United States Dec. 13, 1972; [23 U.S. T. 3227; T. I. A. S. 7502; 500 U. N. T.
S. 95] (the VCDR). Although current diplomatic envoys enjoy absolute immunity
from civil and criminal process, see id. art. 31, former diplomatic envoys
retain immunity only ‘with respect to acts performed by such a person in the
exercise of his [or her] functions’ as a diplomatic envoy. Id. Art. 39, ¶ 2.”
“As the Plaintiffs have sued former UN officials, each of
whom held a rank of Assistant Secretary‑General or higher, it is this
functional immunity, which the CPIUN incorporates by reference, that is
relevant. The Diplomatic Relations Act of 1978, 22 U.S. C. § 254d, makes pellucid
that American courts must dismiss a suit against anyone who is entitled to
immunity under either the VCDR or other laws ‘extending diplomatic privileges
and immunities.’ As CPIUN § 19 is such a law, the remaining question is whether
the Plaintiffs’ allegations against the individual Defendants involve acts that
the Defendants performed in the exercise of their UN functions.”
“When a court attempts to determine whether a defendant is
seeking immunity ‘with respect to acts performed by such a person in the
exercise of his functions,’ VCDR art. 39, ¶ 2, the court must do so without
judging whether the underlying conduct actually occurred, or whether it was
wrongful. Of the Plaintiffs’ seven claims, all except the fourth make
allegations with respect to acts that the Defendants performed in exercise of
their official functions, namely, their management of the office in which the
Plaintiffs worked.
[The first two claims allege that defendants discriminated
against Plaintiff in the conditions of her employment and retaliated against
her, both in violation of Title VII. The fifth claim alleges that the
defendants retaliated against Ishak in violation of Title VII as well. These
allegations involve personnel management decisions falling within the ambit of
the defendants’ professional responsibilities. Plaintiff’s third claim, for
intentional infliction of emotional distress, also relates to the management of
the office, because it challenges the defendants’ conduct in investigating
Plaintiff’s claims, and charges retaliation through changes of her work
assignments. The sixth and seventh claims, which allege violations of RICO,
also relate to Annan’s and Lubbers’ roles as UN officials.] [113].
“The only remaining claim is the fourth, in which Plaintiff
alleges [that] Lubbers committed the state law tort of battery [i.e. by some
unspecified form of sexual grabbing [Plaintiff].] We have said that if a
Plaintiff’s federal claims are dismissed before trial, ‘the state claims should
be dismissed as well. Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240,
250 (2d Cir. 2008) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715,
726 ... (1966)). Because Plaintiff’s federal claims were dismissed on
jurisdictional grounds at the very beginning of the case, there was no
colorable basis for the district court to exercise supplemental jurisdiction
over her state law claim.”
“We thus affirm the district court’s dismissal without
reaching Plaintiff’s argument that the claim involves conduct outside the scope
of the Defendant’s immunity. Plaintiff is free to re‑file her battery claim in
the state courts. If she does so, the state court would need to adjudicate in
the first instance the Defendant’s claim of immunity.” [114].
Citation: Brzak v. United Nations, 597 F.3d 107 (2nd
Cir. 2010).
*** Mr. Kenneth Todd Wallace is an attorney and founding partner of the law firm. He has nearly 20 years of experience in the legal and business professions with established excellence in trial advocacy, negotiation, strategic and initiative planning, government relations, mergers and acquisitions, and team building. See http://www.walmey.com/our-attorneys/k-todd-wallace/
