107 F.3d 913 (D.C. Cir. 1997), 96-7071, Rendall-Speranza v. Nassim

Docket Nº:96-7071, 96-7145.
Citation:107 F.3d 913
Party Name:Margot RENDALL-SPERANZA, Appellee, v. Edward A. NASSIM, Appellant.
Case Date:March 14, 1997
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 913

107 F.3d 913 (D.C. Cir. 1997)

Margot RENDALL-SPERANZA, Appellee,

v.

Edward A. NASSIM, Appellant.

Nos. 96-7071, 96-7145.

United States Court of Appeals, District of Columbia Circuit

March 14, 1997

Argued Nov. 12, 1996.

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[323 U.S.App.D.C. 281] Appeals from the United States District Court for the District of Columbia (No. 95cv01855).

Jana Howard Carey, Baltimore, MD, argued the cause for appellant Edward A. Nassim, with whom James R. Myers and Kenneth C. Bass were on the briefs.

Michael S. Helfer, Washington, DC, argued the cause for appellant International Finance Corporation, with whom Thomas P. Olson and Stuart F. Delery were on the briefs. Lester Nurick and Eric J. Mogilnicki entered appearances.

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[323 U.S.App.D.C. 282] David H. Shapiro, Washington, DC, argued the cause for appellee, with whom Diane Bodner was on the brief.

William D. Rogers was on the brief for amicus curiae Inter-American Development Bank.

Before: GINSBURG, SENTELLE, and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

Margot Rendall-Speranza, an employee of the International Finance Corporation (which is a subsidiary of the World Bank) sued her supervisor, Edward A. Nassim, alleging battery and intentional infliction of emotional distress. During the pre-trial proceedings in the district court, Rendall-Speranza moved to amend her complaint in order to add the IFC as a defendant. Although the limitation period had run when Rendall-Speranza moved to add the IFC as a defendant, the district court allowed the amendment, holding that Rendall-Speranza's failure to name the IFC as a defendant in her first complaint was due to a "mistake of identity." The district court then denied each defendant's motion to dismiss. We reverse.

I. Background

For the purposes of this appeal we take the facts to be as alleged in the complaint. From 1992 to 1995 Rendall-Speranza worked as an investment officer at the IFC; Nassim was her supervisor. According to Rendall-Speranza, Nassim tried on several occasions to take indecent liberties with her. Rendall-Speranza rebuffed his every advance and protested whenever he tried to kiss her or to touch her inappropriately. Eventually, Rendall-Speranza reported Nassim's behavior to officials of the World Bank; that was in the early Summer of 1994. The events giving rise to this suit occurred on the evening of August 25, 1994 when, in the offices of the World Bank, Nassim allegedly grabbed Rendall-Speranza by the wrist, twisted her arm painfully behind her back, and kicked her in the shin.

On August 24, 1995 Rendall-Speranza sued Nassim in the Superior Court of the District of Columbia. She alleged separate counts of sexual harassment, assault and battery, intentional infliction of emotional distress, negligent infliction of emotional distress, and simple negligence. Nassim removed the suit to federal district court, whereupon Rendall-Speranza amended her complaint to allege only assault and battery and intentional infliction of emotional distress. When Nassim moved to dismiss Rendall-Speranza's amended complaint, the IFC filed an amicus curiae brief stating that Nassim's conduct on the evening of August 25, 1994 was appropriate under IFC policy because he was preventing Rendall-Speranza from stealing IFC files when he restrained and allegedly kicked her. Rendall-Speranza then moved for leave to file a further amended complaint adding the IFC as a defendant on the battery count. The district court granted Rendall-Speranza's motion, and the IFC promptly filed its own motion to dismiss.

The district court denied both defendants' motions to dismiss. The court first held that although Rendall-Speranza did not add the IFC as a defendant until after the applicable limitation period had run, her amended complaint "relates back," pursuant to Federal Rule of Civil Procedure 15(c), to the date upon which the original complaint was filed because her failure to name the IFC in the original complaint was due to "a mistake concerning the identity of the proper party" to sue. The court also rejected the IFC's contention that Rendall-Speranza's exclusive remedy lay in the IFC's internal employee grievance procedure.

The district court then rejected the IFC's claim to immunity under the International Organizations Immunities Act, 22 U.S.C. §§ 288-288j (IOIA), which grants to international organizations in the United States "the same immunity from suit and every form of judicial process as is enjoyed by foreign governments." 22 U.S.C. § 288a(b). In 1945, when the IOIA was first passed, foreign governments enjoyed absolute immunity. In 1976, however, the Congress passed the Foreign Sovereign Immunities Act, 28 U.S.C. [323 U.S.App.D.C. 283]

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§ § 1602 et seq. (FSIA), which creates certain exceptions to the immunity of foreign governments. We have not heretofore found it necessary to decide whether the exceptions contained in the FSIA likewise limit the immunity extended to international organizations under the IOIA. See, e.g., Broadbent v. Organization of American States, 628 F.2d 27, 32-33 (D.C.Cir.1980) (no need to decide issue because international organization immune from liability for alleged harm even under FSIA). The district court held conditionally that if the FSIA does circumscribe the immunity available under the IOIA, then the IFC is not immune from liability for Nassim's tortious conduct because that conduct did not involve the exercise of discretion. See 28 U.S.C. § 1605(a)(5) (no sovereign immunity "in any case ... in which money damages are sought for ... damage ... caused by [a] tortious act or omission ... except this paragraph shall not apply to--(A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused"). The district court therefore found it necessary to decide whether the exceptions found in the FSIA do indeed limit the immunity of international organizations under the IOIA; it held that they do and accordingly denied the IFC's motion to dismiss.

For essentially the same reason grounded in the FSIA the...

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