Brzak v. United Nations, 06 Civ. 3432.

• Decision Date: 29 April 2008
• Docket Number: No. 06 Civ. 3432.,06 Civ. 3432.
• Citation: 551 F.Supp.2d 313
• Parties: Cynthia BRZAK and Nasr Ishak, Plaintiffs, v. The UNITED NATIONS, Kofi Annan, Wendy Chamberlin, Ruud Lubbers, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

551 F.Supp.2d 313

Cynthia BRZAK and Nasr Ishak, Plaintiffs, v. The UNITED NATIONS, Kofi Annan, Wendy Chamberlin, Ruud Lubbers, et al., Defendants.

No. 06 Civ. 3432.

United States District Court, S.D. New York.

April 29, 2008.

Law Office of Timothy J. Mclnnis, by: Monika Ona Bileris, Esq., New York, NY, Schwab Flaherty & Associates, by: Edward Patrick Flaherty, Esq., Switzerland, GE, for Plaintiffs.

Debevoise & Plimpton LLP, by: Donald Francis Donovan, Esq., Catherine M. Amifar, Esq., New York, NY, for Defendants.

OPINION

SWEET, District Judge.

The United Nations ("U.N.") has moved under Fed.R.Civ.P. 12(b)(1) to dismiss the complaint of Cynthia Brzak ("Brzak") and Nasr Ishak ("Ishak") (collectively, the "Plaintiffs") and to intervene pursuant to Fed.R.Civ.P. 24. For the reasons set forth below, the United Nation's motion to dismiss is granted.

Prior Proceedings

On October 28, 2005, Brzak filed a Title VII claim against the U.N., Kofi Annan ("Annan"), Wendy Chamberlin ("Chamberlin"), Ruud Lubbers ("Lubbers"), and five other individual defendants (collectively, "Individual Defendants") with the Equal Opportunity Employment Commission ("EEOC"). On January 31, 2006, the EEOC issued a Dismissal and Notice of Rights in which the EEOC determined that it lacked jurisdiction over the claim.

Brzak and Ishak filed their complaint on May'4, 2006. According to the complaint, the Plaintiffs, Brzak, a citizen of the United States, and Ishak, a French and Egyptian national, were both employed by the Office of the U.N. High Commissioner for Refugees ("UNHCR"), located in Geneva, Switzerland. Complaint ¶¶ 7-8. Brzak alleges that she was grabbed in a sexual manner by Lubbers at the conclusion of a business meeting in Lubbers' office in Geneva in December 2003. Id. ¶ 19. Lubbers was the U.N. High Commissioner for Refugees at the time and remained in that capacity until February 2005. Id. ¶ 11. Brzak alleges that she sought advice on how to respond to the alleged incident from Ishak (who worked in the UNHCR Inspector General's office), and that Ishak advised Brzak to file a complaint with the U.N.'s Office of Internal Oversight Services ("OIOS"). Id. ¶¶ 21, 24. Brzak filed an OIOS complaint on April 27, 2004. Id. ¶ 22. Thereafter, Lubbers and other superiors retaliated against her by, among other things, displaying open hostility toward her, verbally harassing her, and giving her unmanageable work assignments. Id. UK 23, 25. Ishak similarly claims that, after it became known that he had counseled Brzak to file and OIOS complaint, he was not given a promotion for which he had been recommended, and that Lubbers attempted to abolish the office to which Ishak was attached. Id. ¶ 24. Plaintiffs allege that the OIOS issued a report that confirmed Brzak's allegations, but that the report's findings were subsequently rejected by Annan, the U.N. Secretary-General at the time. Id. ¶ 22, 25. According to the complaint, Brzak filed a formal appeal from the Secretary-General's decision within the U.N.'s internal dispute resolution system, id.,¹ but the complaint does not indicate that Brzak pursued the appeal process to completion.

The Plaintiffs assert causes of action principally under Title VII, as well as causes of action for intentional infliction of emotional distress, indecent battery, and civil RICO violations. Id. ¶¶ 27-59. The U.N. and eight individual U.N. officials were initially named as defendants. Id. ¶¶ 9-17. Plaintiffs filed certificates of service purporting to reflect service on the U.N. and, by service on the U.N., Annan on October 16, 2006, Chamberlin on May 8, 2007, and Lubbers on June 8, 2007. All papers purporting to constitute service at U.N. Headquarters were formally returned by the United Nations to the United States Mission to the United Nations.

At a status conference held on June 6, 2007, the Court requested that the United States and, if appropriate, the United Nations, brief the issue of immunity by September 17, 2007. That date was subsequently extended by the Court to October 2, 2007. On July 20, 2007, with Plaintiffs' consent, the Court dismissed the case against all Defendants except the United Nations, Annan, Chamberlin and Lubbers, and stayed the action with respect to all other issues pending briefing on the immunity issue.

On October 2, 2007, pursuant to 28 U.S.C. § 517, the United States made a submission with respect to the immunities involved and the U.N. Secretary-General's position on the application of those immunities to the Plaintiffs' allegations.²

This motion was heard on October 31, 2007.

The Interest of the United States

The United States' interest arises from the nation's treaty obligations to respect the applicable immunities of the U.N. and its officials. See generally Tachiona v. United States, 386 F.3d 205, 212 (2d Cir. 2004) ("A corollary to the executive's power to enter into treaties is its obligation to ensure that the United States complies with them."). These immunities arise from the U.N. Charter and the Convention on Privileges and Immunities of the United Nations, Feb. 13, 1946, 21 U.S.T. 1418 (the "General Convention"), both treaties to which the United States is a party.

According to the submission on behalf of the United States, pursuant to the foregoing treaties, the U.N. itself is absolutely immune from suit and legal process absent an express waiver. The U.N. has not expressly waived its immunity with respect to this case. To the contrary, it has explicitly affirmed its immunity by letters addressed to the United States' Ambassador to the U.N. dated May 15, 2006, and October 19, 2006.

The United States asserts that the General Convention also grants the Secretary-General and all Assistant Secretaries-General, which include both the High Commissioner and Deputy High Commissioner for Refugees, "the privileges and immunities ... accorded to diplomatic envoys, in accordance with international law." General Convention art. V, § 19. The privileges and immunities accorded to diplomatic envoys are specified in turn by the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95 ("VCDR"). Under the VCDR, diplomatic officials sued after leaving office continue to receive immunity "with respect to acts performed ... in the exercise of [their] functions." Id. art. 39(2).

The United States further argues that, beyond these treaty provisions specifically applicable to the Secretary General and Assistant Secretaries-General, the General Convention also provides that U.N. officials generally, whether current or former, are immune from suit and legal process "in respect of words spoken or written and all acts performed by them in their official capacity." General Convention art. V, § 18(a).

Finally, the United States argues that under the International Organizations Immunities Act, 22 U.S.C. §§ 288 et seq. ("IOIA"), the officers and employees of any international organization covered by the statute, including the U.N., receive immunity from suit and legal process as to "acts performed by them in their official capacity and falling within their functions as such ... officers, or employees." 22 U.S.C. § 288d(b).

In accordance with its treaty obligations to communicate the views of the Secretary-General, see Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission of Human Rights, 1999 I.C.J. 62, 87 (Apr. 29), the United States has conveyed to the Court the position of the Secretary-General that the three remaining Individual Defendants are entitled to immunity in this matter. The International Court of Justice has advised that the Secretary-General's views concerning the scope of immunity owed to U.N. officials should normally be accorded a high degree of deference. See id. at 61; cf. Leutwyler v. Office of Her Majesty Queen Rania Al-Abdullah, 184 F.Supp.2d 277, 287 (S.D.N.Y.2001) (noting that "great weight" is to be given to any extrinsic submissions by foreign governments with regard to the scope of official acts immunity under the Foreign Sovereign Immunities Act).

The United States did not take a position on the applicability of official acts immunity to any of the allegations in this case.

The Provisions Relating to Immunity

Article 105 U.N. Charter provides that the U.N. "shall enjoy ... such privileges and immunities as are necessary for the fulfillment of its purposes," and that its officials "shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization."

The General Convention defines the privileges and immunities relating to the United Nations and its officials. Article II, section 2 provides that "[t]he United Nations ... shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity." The Secretary-General and all high officials serving at the level of Assistant Secretary-General and above are granted the same "privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law." General Convention art. V § 19.

Under Article 31 of the VCDR, current high officials enjoy immunity from criminal and civil jurisdiction, subject to limited exceptions. VCDR art. 31(1). Former high officials enjoy continuing immunity "with respect to acts performed ... in the exercise of [their] functions. ..." Id. art. 39(2). Under United States law, suits against U.N. officials who are immune under these provisions must be dismissed. See Diplomatic Relations Act § 5, 22 U.S.C. § 254d (1978) (mandating dismissal where immunity conferred by VCDR "or under any other laws extending diplomatic privileges and immunities").

In addition to the diplomatic immunity granted the Secretary-General and high officials, the General Convention provides the Secretary-General and certain U.N. officials...