Except as noted, the facts are 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 contends 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 alleges that Defendant Annan disregarded the finding and eventually cleared Lubbers. Plaintiff then appealed through the UN’s internal complaint adjustment process.
Both Plaintiffs allege 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 some 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 changed various state common law torts—to be brought into federal court under its supplemental jurisdiction.
The UN formally returned the complaint to the American ambassador to the UN and moved to dismiss 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.
This appeal followed and in a March 2, 2010 opinion, the U.S. Court of Appeals for the Second Circuit affirms. This court then explains its ruling.
“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).
