628 F.2d 27 (D.C. Cir. 1980), 78-1465, Broadbent v. Organization of American States

Docket Nº:78-1465.
Citation:628 F.2d 27
Party Name:Marvin R. BROADBENT et al., Appellants, v. ORGANIZATION OF AMERICAN STATES et al., Appellees.
Case Date:January 08, 1980
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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628 F.2d 27 (D.C. Cir. 1980)

Marvin R. BROADBENT et al., Appellants,

v.

ORGANIZATION OF AMERICAN STATES et al., Appellees.

No. 78-1465.

United States Court of Appeals, District of Columbia Circuit

January 8, 1980

Argued Sept. 17, 1979.

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Appeal from the United States District Court for the District of Columbia. (D.C.Civil 77-1974).

Thomas J. O'Toole, Boston, Mass., a member of the bar of the Supreme Court of Massachusetts, pro hac vice, by special leave of the court, with whom Francis X. McLaughlin, Kensington, Md., was on brief, for appellant.

George H. Clark, Washington, D. C., with whom Gordon H. Glenn, Washington, D. C., on brief, for appellees.

Andrew N. Vorkink, Counsel, World Bank, New York City, with whom J. I. Levinson, Gen. Counsel, Washington, D. C. and Walter F. Sheble, Counsel, Inter-American Development Bank, Washington, D. C., were on brief, for amicus curiae, urging affirmance.

Alice E. Weil, with whom Paul C. Szasz, New York City, was on brief, for amicus curiae, United Nations, urging affirmance.

William D. Rogers and Edward J. Spriggs, Washington, D. C., were on brief for amicus curiae, Intern. Telecommunications Satellite Organization urging affirmance.

Barbara Allen Babcock, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty. [*], Ronald R. Glancz, Bruno A. Ristau and David P. Buck, Attys., Office of Foreign Litigation, Dept. of Justice, Washington, D. C., were on brief, for amicus curiae, United States, urging affirmance.

Before LEVENTHAL [**], and WALD, Circuit Judges; and PENN [***], United States District Judge for the District of Columbia.

Opinion for the Court filed by Circuit Judge LEVENTHAL.

LEVENTHAL, Circuit Judge:

This is an appeal from a District Court judgment dismissing an action by the appellants 1 claiming they had been improperly discharged by the Organization of American States (OAS). The district court held that OAS was absolutely immune from suit. 2 We affirm on the ground that, even assuming for discussion the applicability of the lesser, "restrictive" immunity doctrine, which permits a lawsuit based on "commercial" activity to be maintained against a sovereign without its consent, this case does not present such "commercial" activity.

I. BACKGROUND

The plaintiffs-appellants are seven former staff members of the General Secretariat of OAS. Before their termination, they had been employed at the permanent headquarters of the organization in Washington, D. C., for periods ranging from six to twenty-four years. They are all United States citizens or foreign nationals admitted to permanent residency in the United States.

The appellants were dismissed from the Secretariat on August 31, 1976, due to a reduction in force mandated by the OAS General Assembly. At various times between October 31 and November 8, 1976, they filed complaints with the Administrative Tribunal of the OAS, the internal court created to resolve personnel disputes. On June 1, 1977, the Tribunal held that the discharges had been improper and that the appellants should be reinstated at the grades they held when they were separated from service. In accordance with its governing statute, the Tribunal also fixed an indemnity to be paid to each appellant should the Secretary General choose to exercise the option of refusing to reinstate them. Subsequently, the Secretary General

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denied reinstatement, and each appellant received the indicated indemnity. 3

On November 16, 1977, the appellants brought this action in the district court, alleging breach of contract and seeking damages totalling three million dollars. The OAS moved to quash service and dismiss the complaint, asserting that the district court lacked subject matter jurisdiction and that the OAS is immune from service of process; but the district court denied the motion in an order dated January 25, 1978. 4 On February 28, the OAS filed a request for certification under 28 U.S.C. § 1292(b) so as to take an interlocutory appeal of the January order to this court. In a final order dated March 28, 1978, the district court vacated its order of January 25 and dismissed the lawsuit. 5 The March 28 order stated in pertinent part:

On January 25, 1978, this Court held that the express language of 22 U.S.C. § 288a(b) and the statutory purposes underlying the International Organizations Immunities Act of 1945 bring international organizations within the terms of the Foreign Sovereign Immunities Act of 1976, and that pursuant to 28 U.S.C. § 1330 this Court had jurisdiction over the parties and controversy involved in the case. Upon careful review of that decision, the Court finds that it did not properly weight the facts that international organizations, and particularly the Organization of American States, are creatures of treaty and by virtue of treaty stand in a different position with respect to the issue of immunity than sovereign nations. The Court is persuaded that international organizations are immune from every form of legal process except insofar as that immunity is expressly waived by treaty or expressly limited by statute. The Court is further persuaded that this Court has jurisdiction over lawsuits involving international organizations only insofar as such jurisdiction is expressly provided for by statute.

The Foreign Sovereign Immunities Act of 1976 makes no mention of international organizations. The jurisdictional grant of 28 U.S.C. § 1330 refers only to foreign states. Nothing in the International Organizations Immunities Act of 1945 provides for jurisdiction in the district courts over civil actions against international organizations.

On April 19, 1978, appellants filed their notice of appeal from this ruling.

II. ANALYSIS

A. Jurisdiction

In its final order, the district court concluded that it lacked subject matter jurisdiction, 6 and the OAS advances that position on appeal. Appellants and the district court in its January 25 order rely upon a conjunctive reading of the International Organizations Immunity Act (IOIA) of 1945, 22 U.S.C. § 288a(b) 7 (1979), and the

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Foreign Sovereign Immunities Act (FSIA) of 1976, 28 U.S.C. § 1330 (1979), 8 to establish jurisdiction. The OAS counters that § 288a(b) confers immunity, not jurisdiction, and that § 1330 establishes jurisdiction over suits against foreign states, not international organizations.

The United Nations (U.N.), appearing amicus curiae, offers a different approach to the question of jurisdiction. It contends that jurisdiction over suits involving international organizations exists under 28 U.S.C. § 1331(a). 9 In support of this contention, amicus cited International Refugee Organization v. Republic Steamship Co., 189 F.2d 858, 861 (4th Cir. 1951), which held that "an international organization created by treaties to which the United States is a party may invoke (federal question) jurisdiction because it is created by a treaty of the United States." That case also found an alternate basis for federal court jurisdiction over suits brought by international organizations in the provisions of 28 U.S.C. § 288a(a) that confer capacity to sue upon international organizations. Id. at 860. Counsel for the U.N. reasons from this alternative holding that, if international organizations may institute suits in a federal court, they should be permitted to defend them there; thus, he argues that § 1331 should be construed to confer federal jurisdiction over such suits.

Because clear and adequate non-judicial grounds for the disposal of this case exist, we need not and do not decide the difficult jurisdictional issues it presents.

B. The Immunity of International Organizations

The International Organizations Immunities Act of 1945, 22 U.S.C. § 288a(b) (1979), grants to international organizations which are designated by the President 10 "the same immunity from suit and every form of judicial process as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract." 11 As of 1945, the statute granted absolute immunity to international organizations, for that was the immunity then enjoyed by foreign governments.

The Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1602 et seq. (1979), codified what, in the period between 1946 and

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1976, 12 had come to be the immunity enjoyed by sovereign states restrictive immunity. The central feature of restrictive immunity is the distinction between the governmental or sovereign activities of a state (acts jure imperii ) and its commercial activities (acts jure gestionis ). Foreign states may not be found liable for their governmental activities by American courts; but they enjoy no immunity from liability for their commercial activities.

Contention for restrictive immunity

Appellants and the United States as amicus curiae submit the following syllogism: the IOIA conferred on international organizations the same immunity enjoyed by foreign governments; the FSIA indicates that foreign governments now enjoy only restrictive immunity; therefore, international organizations enjoy only restrictive immunity. They are supported by the general doctrine that ordinarily, "(a) statute which refers to the law of a subject generally adopts the law on the subject as of the time the law was invoked . . . includ(ing) all the amendments and modifications of the law subsequent to the time the reference statute was enacted." 13

Contention for absolute immunity

The OAS and several other international organizations as amici curiae counter that Congress granted international organizations absolute immunity in the IOIA, and it has never modified that grant....

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