Rodriguez v. Pan Am. Health Org.
| Decision Date | 29 March 2022 |
| Docket Number | No. 20-7114,20-7114 |
| Citation | 29 F.4th 706 |
| Parties | Ramona Matos RODRIGUEZ, et al., Appellees v. PAN AMERICAN HEALTH ORGANIZATION, Appellant Joaquin Molina, et al., Appellees |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
David W. Bowker argued the cause for appellant. With him on the briefs were Patrick J. Carome and Daniel S. Volchok.
Jeffrey T. Green and Marisa S. West were on the brief for amici curiae The International Bank for Reconstruction and Development, et al. in support of appellant.
Samuel J. Dubbin argued the cause for appellees. With him on the brief were Jonathan W. Cuneo, Charles J. Cooper, Michael W. Kirk, Haley N. Proctor and Joseph O. Masterman.
Martina E. Vandenberg and Stuart A. Raphael were on the brief for amicus curiae Human Trafficking Legal Center in support of appellees. Elbert Lin entered an appearance.
Agnieszka M. Fryszman was on the brief for amici curiae Senator Robert Menendez, et al. in support of appellees.
Lewis Yelin, Attorney, U.S. Department of Justice, argued the cause for amicus curiae The United States in support of neither party. With him on the brief were Brian M. Boynton, Acting Assistant Attorney General, and Sharon Swingle, Attorney.
Before: Henderson, Tatel and Pillard, Circuit Judges.
A group of Cuban physicians (physicians) sued the Pan American Health Organization (PAHO) for its role in facilitating Brazil's Mais Médicos (translated, "More Doctors") program, under which Brazil hired foreign physicians to augment its medical services provided to impoverished Brazilians. Cuba supplied physicians to the program, allegedly without their consent and in violation of human trafficking laws. The physicians sued PAHO for, inter alia , acting as a financial intermediary between Brazil and Cuba. PAHO moved to dismiss the suit, asserting immunity under both the International Organizations Immunities Act (IOIA), 22 U.S.C. § 288, and the World Health Organization (WHO) Constitution, Constitution Adopted by the United States of America and Other Governments Respecting a World Health Organization , June 21, 1948, 62 Stat. 2679, T.I.A.S. No. 1808. The district court denied dismissal of the claim that PAHO acted as a financial intermediary and PAHO appeals therefrom. As detailed infra , we affirm.
On review of a dismissal denial, "we must accept as true all material allegations of the complaint, drawing all reasonable inferences from those allegations in plaintiffs’ favor, and presuming that general allegations embrace those specific facts that are necessary to support the claim." LaRoque v. Holder , 650 F.3d 777, 785 (D.C. Cir. 2011) (cleaned up). We recite the facts accordingly.
In 2012, Brazilian and Cuban officials discussed Cuba's "export[ing]" medical services to Brazil. Rodriguez v. Pan Am. Health Org. , 502 F. Supp. 3d 200, 208 (D.D.C. 2020). According to the United States Department of State, Cuba relies on "medical missions" as a significant source of income and recruits physicians under the threat of "harsh social, economic, political[,] personal, reputational, and legal repercussions." Id. Cuba proposed sending six thousand internal medicine specialists to Brazil. Id. Brazilian officials did not want to enter into an "intergovernmental agreement," which required approval of the Brazilian Congress and thus could "generate controversy." Id. To avoid an intergovernmental agreement, Brazilian officials proposed using PAHO as an intermediary. Id. Accordingly, PAHO entered into an agreement with Brazil and Cuba, the "Technical Cooperation Agreement Between the Ministry of Public Health of the Republic of Cuba and the Pan American Health Organization/World Health Organization for Expanded Access by the Brazilian Population to Primary Health Care" (Agreement).
PAHO's participation in the Mais Médicos program is somewhat ambiguous, as the complaint alleges two alternative roles that PAHO played. First, the complaint alleges that PAHO directly participated in human trafficking. PAHO "knowingly provided and obtained the labor or services of Plaintiffs by threats of force, physical restraint, threats of physical restraint, serious harm, threats of serious harm, abuse of laws and legal process, threats of abuse of laws and legal process, and by participating in a scheme, plan, or pattern intended to cause Plaintiffs and Class members to believe that if they did not comply with the restrictions and work under the conditions PAHO instituted and enforced, they would suffer serious harm or physical restraint." App. 123. By its alleged conduct, the complaint continues, PAHO violated the Trafficking Victims Protection Act (TVPA), 18 U.S.C. § 1589(a) (). The complaint also alleges that "PAHO ... knowingly participated in the recruitment, harboring, and transportation of, and provided and obtained Plaintiffs’ labor and services," in violation of § 1590 (). App. 124.
Alternatively, the complaint alleges that PAHO acted as a financial intermediary between Brazil and Cuba, to wit: "PAHO ... entered into a bilateral agreement with the Cuban government to guarantee it would transfer resources from third parties as a way to compensate Cuba for the utilization of its medical professionals, i.e. to ‘triangulate’ health care cooperation which is ‘compensated,’ through the ‘movement of resources.’ " App. 88–89. According to the physicians, PAHO's role included moving money, for a fee, between the countries. App. 64, 66, 70, 72. Brazil made payments to PAHO's Citibank account in Washington, D.C and PAHO then forwarded 85% to Cuba, 10% to the physicians and retained 5% for its services. App. 71–72.
The complaint acknowledges that under the Agreement, PAHO is to provide technical medical expertise necessary to facilitate the Mais Médicos program. "In June of 2012, PAHO entered into an agreement with the Government of Cuba that call[ed] for PAHO [t]o facilitate international cooperation ... and the triangulation in health care cooperation and the moving of resources." App. 72 (internal quotation marks omitted) (second alteration in original). Under the Agreement, then, PAHO was to serve as a "broker—for a fee—of medical services" and "triangulat[e] health care services between Cuba and [Brazil] for compensation" App. 66, 72–73 (internal quotation marks omitted). According to the complaint, however, PAHO's outward role to "facilitate" or "triangulate" medical services was merely a "pretext for being a conduit of money." App. 88.
Four Cuban Mais Médicos physicians escaped to the United States and filed a class-action suit against PAHO in the U.S. District Court for the Southern District of Florida. Rodriguez , 502 F. Supp. 3d at 209. The complaint contains two civil counts: first, PAHO participated in human trafficking and violated the TVPA, 18 U.S.C. §§ 1589, 1590 ; and, second, PAHO conspired to provide involuntary labor and thus violated the Racketeering Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. § 1962. PAHO successfully moved to transfer the case to the U.S. District Court of the District of Columbia as the correct venue under the IOIA. Rodriguez , 502 F. Supp. 3d at 209 ; see 28 U.S.C. § 1391(f), (f)(4) (). PAHO moved to dismiss on immunity, abstention and improper service grounds. 502 F. Supp. 3d at 211–36.
The district court determined that "Count I"—alleging that PAHO violated the TVPA—itself included three separate claims. Id. at 209–10. First, PAHO obtained and provided human labor through intimidation, violating 18 U.S.C. § 1589(a) (). Rodriguez , 502 F. Supp. 3d at 210. Second, PAHO benefitted financially from human trafficking, violating 18 U.S.C. § 1589(b) (). Rodriguez , 502 F. Supp. 3d at 210. Third, PAHO "trafficked" Cuban physicians, violating 18 U.S.C. § 1590 (). Rodriguez , 502 F. Supp. 3d at 210.
The district court upheld PAHO's IOIA immunity as to the first and third TVPA claims as well as the RICO claim, id. at 211–23, and held those claims in abeyance while it determined whether to allow jurisdictional discovery, id. at 236–37. Accordingly, those claims are not yet before us.
On the second TVPA claim, the district court rejected PAHO's IOIA immunity. Because the IOIA grants designated international organizations the same immunity as foreign sovereigns, 22 U.S.C. § 288a(b), the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602, governs the immunity of international organizations also. Jam v. Int'l Fin. Corp. , ––– U.S. ––––, 139 S. Ct. 759, 772, 203 L.Ed.2d 53 (2019). Under the FSIA, an entity loses its immunity if its challenged "action is based upon a commercial activity carried on in the United States." 28 U.S.C. § 1605(a)(2). The district court concluded that the commercial activity exception applies because "it is ... a normal commercial function to act as a financial intermediary transferring funds, for a fee, from one entity to another." Rodriguez , 502 F. Supp. 3d at 215. The district court rejected PAHO's argument that the action was "based upon" forced labor abroad1 because "Plaintiffs’ 1589(b) claim turns on separate and separately wrongful conduct, distinct from any acts that could form the basis of a claim against Cuba or Brazil, by a defendant other than Cuba or Brazil—to...
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