De Luca v. United Nations Organization

• Decision Date: 10 January 1994
• Docket Number: No. 92 Civ. 2021 (WK).,92 Civ. 2021 (WK).
• Citation: 841 F. Supp. 531
• Parties: Maurizio DE LUCA, Plaintiff, v. The UNITED NATIONS ORGANIZATION, Javer Perez De Cuellar, Louis Maria Gomez, Armando Duque, Kofi Annan, Abdou Ciss, Oleg Bugaev, Susan R. Mills, Frederick Gazzoli, Defendants.
• Court: U.S. District Court — Southern District of New York

841 F. Supp. 531

Maurizio DE LUCA, Plaintiff, v. The UNITED NATIONS ORGANIZATION, Javer Perez De Cuellar, Louis Maria Gomez, Armando Duque, Kofi Annan, Abdou Ciss, Oleg Bugaev, Susan R. Mills, Frederick Gazzoli, Defendants.

No. 92 Civ. 2021 (WK).

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

January 10, 1994.

Maurizio De Luca, pro se.

Francis M. Ssekandi, Deputy Director, General Legal Div., U.N. Office of Legal Affairs, New York City, for defendant.

Richard W. Mark, Asst. U.S. Atty., New York City, for U.S.

MEMORANDUM AND ORDER

WHITMAN KNAPP, Senior District Judge.

Plaintiff moves for default judgment against the United Nations and eight U.N. officials and employees under Federal Rule of Civil Procedure 55(b)(2). On March 30, 1993, plaintiff filed a complaint pro se alleging breach of contract, forgery, negligence and the violation of federal civil rights and employee medical benefits law. When plaintiff served process upon defendants during April, May and June 1993, the U.N. Legal Counsel wrote the court explaining that the organization and the individual defendants — with respect to acts performed by them in their official capacity — are immune from all legal process under international and United States law. None of the defendants have answered the complaint. Presently, the U.N., on behalf of itself and the eight individual defendants, moves to dismiss the complaint for lack of subject matter jurisdiction, lack of personal jurisdiction, insufficiency of service of process and on the basis of immunity. The United States appeared at oral argument on the motions on September 10, 1993, and has submitted a statement of interest in support of defendants' motion to dismiss.

For reasons that follow, we deny plaintiff's motion for default and, on the basis of immunity, grant defendants' motion to dismiss the complaint.

BACKGROUND

Plaintiff, a United States citizen, was employed by the U.N. as a security officer from June 1977 until December 31, 1988, the effective date of his resignation. Pursuant to regulations set forth by its General Assembly, the U.N. withholds the estimated federal and local taxes of staff members whose national governments require them to pay such taxes based on their U.N. salaries. It then reimburses the employees, enabling them to pay their taxes directly to their national governments. Between 1977 and 1987, the U.N. withheld plaintiff's estimated federal, state and local income taxes and then reimbursed him in the form of checks made payable to himself and the Internal Revenue Service. However, for the tax year 1988 the U.N. withheld plaintiff's estimated taxes but never reimbursed him. The U.N. claims that it did so because plaintiff failed to provide it with certified copies of his 1988 tax return. Plaintiff alleges that the U.N. reported to the I.R.S. that it had reimbursed his withheld taxes for 1988. This information, plaintiff contends, led the I.R.S. to audit him for those tax years between 1990 and 1992. Moreover, because the U.N. never reimbursed him in 1988, plaintiff was personally required to pay $6,801.36 in federal, state and local tax for that year.

Plaintiff contends that the U.N.'s actions constituted breach of his employment contract, prima facie tort, injurious falsehood and employment discrimination prohibited by Title VII, 42 U.S.C.A. 2000e et seq. (1981 & Supp.1991). He alleges that in 1987, in retaliation for pressure exerted by the United States on the U.N. to reduce its personnel during the mid-1980s, U.N. Secretary-General Javer Perez de Cuellar initiated an unprecedented tax audit of United States nationals employed by the organization, including himself. Plaintiff claims that U.S. nationals were singled out in the audit, as the U.N. never audited the nationals of four other countries which, like the U.S., require that U.N. employees pay national taxes.

After plaintiff left the U.N., on April 20, 1989, its Finance Division issued a "final pay statement" which indicated that plaintiff had received $850.72 in retroactive pay and compensatory time which he alleges he never received. Plaintiff further alleges that this final pay statement contained his forged signature and was issued with the intent of defrauding him of his remaining salary and compensatory time.

Finally, plaintiff claims that the U.N. denied him continuation of his medical benefits after his resignation in violation of 29 U.S.C.A. § 1161 (Supp.1993), which requires certain employers to allow former employees to elect continued coverage under the employer's group health insurance plan.

DISCUSSION

Plaintiff contends that he is entitled to default judgment against defendants because they failed to answer his complaint, which alleges damages in the amount of $1,408,504.76. The U.N. argues that plaintiff's complaint must be dismissed under Fed.R.Civ. Pro. 12(b) because both itself and the individual defendants, who are alleged to have been acting in the course of their employment, are cloaked with immunity under international and federal law. On a motion to dismiss, a district court must construe the complaint in favor of the pleader, see Scheuer v. Rhodes (1974) 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90, and must accept as true its factual allegations. See LaBounty v. Adler (2d Cir.1991) 933 F.2d 121, 123. We separately discuss plaintiff's claims against the United Nations and those against the individual defendants.

A. THE UNITED NATIONS

Under the Convention on the Privileges and Immunities of the United Nations ("U.N. Convention"), Feb. 13, 1946, 21 U.S.T. 1418, 1422, T.I.A.S. 6900, acceded to by the United States in 1970, the U.N. and "its property and assets" enjoy immunity from "every form of legal process except insofar as in any particular case it has expressly waived its immunity." U.N. Convention, art. II, sec. 2; see also Boimah v. United Nations General Assembly (E.D.N.Y.1987) 664 F.Supp. 69, 71.¹ A district court may dismiss a complaint based on a defendant's established immunity. Properly invoked immunity shields a defendant "not only from the consequences of litigation's results, but also from the burden of defending themselves." Davis B. Passman (1979) 442 U.S. 228, 235 n. 11, 99 S.Ct. 2264, n. 11, 60 L.Ed.2d 846, quoting Dombrowski v. Eastland (1967) 387 U.S. 82, 85, 87 S.Ct. 1425, 1427, 18 L.Ed.2d 577. Plaintiff has not alleged that the U.N. has expressly waived its immunity in this instance and no evidence presented in this case so suggests. Finding the U.N. to be immune from plaintiff's claims, we dismiss them.

B. INDIVIDUAL DEFENDANTS

Of the eight current or former U.N. officials and employees named as individual defendants, two currently serve as Assistant Secretaries-General—Luis Maria Gomez and Kofi Annan. The U.N. Convention confers upon such officers "the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law." U.N. Convention art. V, sec. 19. In the United States, Article 31 of the Vienna Convention on Diplomatic Relations ("Vienna Convention"), Apr. 18, 1961, 22 U.S.T. 3227, T.I.A.S. 7502 (entered into force for the U.S. Dec. 1, 1972), governs the privileges and immunities of diplomatic envoys and provides, in pertinent part:

1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a) A real action relating to private immovable property ...

(b) An action relating to succession in which the diplomatic agent is involved ...

(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

Assistant Secretaries-General Annan and Gomez are immune from plaintiff's claims under the U.N. and Vienna Conventions as none of the exceptions listed in Article 31 of the Vienna Convention apply here. The instant case is neither a real action relating to private immovable property nor a succession action. Moreover, it involves neither a commercial nor a professional activity exercised by either of these defendants outside their official functions. Rather, plaintiff has alleged that Gomez failed to reimburse him for taxes the U.N. withheld and that Annan denied him the right to elect continued coverage under the U.N.'s group health plan.

One of the remaining six defendants is a former U.N. Secretary-General — Javer Perez de Cuellar—and another is a former Assistant Secretary-General — Abdou Ciss. Persons formerly serving the U.N. in such capacity are protected by the same immunity afforded former diplomatic agents under the Vienna Convention — immunity "with respect to acts performed by such persons in the exercise of their functions as members of the mission ..." Vienna Convention, Art. 39(2). Because plaintiff's claims against Perez de Cuellar and Ciss are based solely on their official activities at the U.N., these defendants are immune from the current action. Plaintiff's claims against the former Secretary-General are based on the following: (1) his alleged supervision of the U.N. Finance Division, which failed to reimburse plaintiff for his 1988 taxes and which, plaintiff claims, issued a forged and fraudulent pay statement; (2) his alleged supervision of the U.N. Office of Human Resources Management, which plaintiff claims denied him extended medical coverage; (3) his alleged supervision of the U.N. Office of Human Resources Management, which plaintiff asserts failed to respond to complaints he filed about the taxes, the pay statement and his medical coverage; and (4) his creation of the 1987 tax audit that plaintiff claims was intended to retaliate against the U.S. Similarly, plaintiff's complaint alleges that Ciss, who ran the U.N. Office of Human Resources Management, failed to investigate plaintiff's complaints regarding the aforementioned misconduct.

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