Zuza v. Office of the High Representative

• Decision Date: 04 February 2016
• Docket Number: Civil Action No.: 14-01099 (RC)
• Parties: ZORAN ZUZA, Plaintiff, v. OFFICE OF THE HIGH REPRESENTATIVE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

ZORAN ZUZA, Plaintiff, v. OFFICE OF THE HIGH REPRESENTATIVE, et al., Defendants.

Civil Action No.: 14-01099 (RC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

February 4, 2016

Re Document Nos.: 19, 28, 30, 37

MEMORANDUM OPINION

DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION, DENYING PLAINTIFF'S MOTION TO STRIKE, DENYING PLAINTIFF'S MOTION FOR JURISDICTIONAL DISCOVERY, AND DENYING AS MOOT PLAINTIFF'S MOTION FOR ORDER

I. INTRODUCTION AND BACKGROUND

Defendants in this action—the Office of the High Representative (OHR), and the former and current High Representatives—are international entities tasked with managing peace agreement implementation efforts in Bosnia and Herzegovina. See Zuza v. Office of High Representative, 107 F. Supp. 3d 90, 91-92 (D.D.C. 2015), ECF No. 18 (discussing the factual background of this case). Because the Court found Defendants immune from suit under the International Organizations Immunities Act (IOIA),¹ the Court dismissed Plaintiff Zoran Zuza's claims against Defendants. See Order, ECF No. 17; Zuza, 107 F. Supp. 3d at 94-100.

Zuza timely filed a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). See Fed. R. Civ. P. 59(e); Pl.'s Mot. Recons., ECF No. 19. Zuza's motion urgesthe Court to reconsider its dismissal because he claims that (1) King v. Burwell, 135 S. Ct. 2480 (2015), is an intervening change in controlling law, and (2) the Court's decision was based on errors of law. See Pl.'s Mot. Recons. 1; Mem. P. & A. Supp. Pl.'s Mot. Recons. 5-45, ECF No. 19-1. After preliminary review of Zuza's motion, the Court ordered supplemental briefing on one of Zuza's arguments and also requested a statement of interest from the United States. See Order, ECF No. 23; Request for Statement of Interest, ECF No. 33.

In the course of supplemental briefing, Zuza also filed three additional motions: a motion to strike portions of Defendants' supplemental brief, a motion for leave to conduct jurisdictional discovery, and a motion for an order obliging Defendants to respond to the other two recently filed motions. See Pl.'s Mot. Strike, ECF No. 28; Pl.'s Mot. for Leave to Conduct Limited Jurisdictional Discovery, ECF No. 30; Pl.'s Mot. Order, ECF No. 37.

After considering all the parties' filings and the United States' statement of interest, the Court finds that the arguments in Zuza's motion for reconsideration, motion to strike, and motion for leave to conduct jurisdictional discovery have no merit. The Court will therefore deny these three motions. And because Zuza's last motion seeks further briefing on his motion to strike and his motion for leave to conduct jurisdictional discovery, the Court will deny Zuza's last motion as moot.

II. LEGAL STANDARD

Rule 59(e) motions "need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). Such motions cannot be used as "an opportunity to reargue facts and theories upon which a court has already ruled, nor asa vehicle for presenting theories or arguments that could have been advanced earlier." Estate of Gaither ex rel. Gaither v. District of Columbia, 771 F. Supp. 2d 5, 10 (D.D.C. 2011) (quoting SEC v. Bilzerian, 729 F. Supp. 2d 9, 14 (D.D.C. 2010)). "The burden is on the moving party to show that reconsideration is appropriate and that harm or injustice would result if reconsideration were denied." United States ex rel. Westrick v. Second Chance Body Armor, Inc., 893 F. Supp. 2d 258, 268 (D.D.C. 2012) (placing the burden on the movant in the context of a Rule 54(b) motion for reconsideration); see also Kittner v. Gates, 783 F. Supp. 2d 170, 172 (D.D.C. 2011) (same, for motions under Rules 59(e) and 60(b)).

III. ANALYSIS

A. King v. Burwell

Zuza first argues that the Supreme Court's opinion last year in King v. Burwell compels an analysis of the IOIA different from the textual approach adopted in this Court's decision on Defendants' motion to dismiss. See King v. Burwell, 135 S. Ct. 2480 (2015); see also Mem. P. & A. Supp. Pl.'s Mot. Recons. 5-12. King teaches that, though courts "must enforce" plain statutory language, "when deciding whether the language is plain, [courts] must read the words 'in their context and with a view to their place in the overall statutory scheme.'" King, 135 S. Ct. at 2489 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)).

But King's reasoning does not affect this Court's IOIA analysis, even assuming that King is an "intervening change of controlling law." Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)).² In keeping withKing's mandate, this Court considered "as a whole," rather than "in isolation," the text of IOIA sections 1, 2(b), and 7(b), the 2010 amendment to the IOIA,³ and the relevant executive order⁴ before concluding that the statutory language was so "plain" that it enabled an analysis that "begins and ends" with the text. See King, 135 S. Ct. at 2495 (explaining that though a statutory phrase's meaning may seem plain "when viewed in isolation," its plain meaning may turn out to be "untenable in light of the statute as a whole" (internal quotation marks and brackets omitted) (quoting Dep't of Revenue of Or. v. ACF Indus., Inc., 510 U.S. 332, 343 (1994))); Zuza, 107 F. Supp. 3d at 93-95.

Alternatively, King allows for consideration of a statute's "broader structure" when statutory text is ambiguous. See King, 135 S. Ct. at 2492. But Zuza's motion cites no statutory text or purpose that creates ambiguity. See Mem. P. & A. Supp. Pl.'s Mot. Recons. 5-12.⁵ Thus, to the extent Zuza seeks to advance an argument that the IOIA's text is ambiguous, Zuza fails to carry his burden under Rule 59(e). See Kittner v. Gates, 783 F. Supp. 2d 170, 172 (D.D.C. 2011).

B. OHR's Immunity

In urging reconsideration of the Court's ruling on OHR's international organization immunity, Zuza's motion takes issue with the Court's statutory interpretation, the Court's treatment of concessions and admissions that Zuza alleges Defendants made, and the Court'srejection of the "U.S. Presence Requirement" that Zuza argues the IOIA requires. See Mem. P. & A. Supp. Pl.'s Mot. Recons. 12-37.

All of these arguments could have been presented, however, in Zuza's opposition to the motion to dismiss and in his sur-reply. And indeed, many of these arguments were. See Pl.'s Mem. Opp'n Defs.' Mot. Dismiss 19-37, ECF No. 6; Pl.'s Sur-Reply Opp'n Defs.' Mot. Dismiss 4-12, ECF No. 11; see also Zuza v. Office of the High Representative, 107 F. Supp. 3d 90, 96-97 (D.D.C. 2015) (rejecting arguments made in Zuza's opposition and sur-reply to the motion to dismiss). The Court therefore declines to consider Zuza's arguments about OHR's immunity. See Estate of Gaither ex rel. Gaither v. District of Columbia, 771 F. Supp. 2d 5, 10 (D.D.C. 2011) (explaining that motions for reconsideration may not be used as opportunities to relitigate arguments that were or could have been advanced earlier). And regardless, nothing in Zuza's lengthy submission raises any issues meriting reconsideration.

C. The Individual Defendants' Immunity

Zuza next argues that the Court erred in holding that the individual defendants Inzko and Ashdown are entitled to immunity as "officers" of OHR. See Mem. P. & A. Supp. Pl.'s Mot. Recons. 38-42.

1. The Individual Defendants' Alleged Concessions

In this vein, Zuza first contends that, because Inzko and Ashdown bore the burden to establish their immunity and because they did not argue that they were "officers" under the IOIA, the Court could not find them immune from suit. See Zuza v. Office of the High Representative, 107 F. Supp. 3d 90, 94 n.3, 99 n.8 (D.D.C. 2015). But as the Court explained, Defendants did argue that Zuza's argument would lead to an "absurd result." Id. at 98 (quoting Defs.' Reply 5, ECF No. 7). Defendants also argued that "[b]oth § 288f-7 and IOIA specificallygrant immunity to OHR's 'officers or employees' without withholding immunity from the head of the office" and that "IOIA immunity has been applied to the UN Secretary General and [to other] top international organization officials." Defs.' Reply 5-6. In addition, Defendants cited Brzak v. United Nations, 551 F. Supp. 2d 313 (S.D.N.Y. 2008), upon which the Court's analysis also relied. See Zuza, 107 F. Supp. 3d at 93, 99; Mem. P. & A. Supp. Defs.' Mot. Dismiss 12, ECF No. 4-1. The fact that Defendants did not squarely contend that Inzko and Ashdown are (or were) OHR "officers" does not prevent the Court from concluding that they carried their burden to establish their immunity.⁶

2. 22 U.S.C. § 228e(a)⁷

In the alternative, Zuza argues that the Court erroneously disregarded section 8(a) of the IOIA, which states that an individual must be "duly notified to and accepted by the Secretary of State as a representative, officer, or employee" before he can enjoy IOIA immunity. 22 U.S.C. § 228e(a). The parties' supplemental briefs and the United States' statement of interest address this issue at length. See Defs.' Suppl. Opp'n, ECF No. 26; Pl.'s Suppl. Brief, ECF No. 29; Statement of Interest, ECF No. 41; Defs.' Resp. to Statement of Interest, ECF No. 42; Pl.'s Mem. Resp. to the Statement of Interest, ECF No. 43; Defs.' Reply to Pl.'s Resp. Regarding Statement of Interest, ECF No. 45; Pl.'s Reply to Defs.' Resp. to Statement of Interest, ECF No. 46.

a. The United States' Statement of Interest

The government's statement of interest states that "the United States confirms that both individual defendants satisfy section 8(a)'s requirements." Statement of Interest 3. In support, the United States attached a signed letter from Clifton Seagroves, the Department of State's Acting Deputy Director of...