BERYL A. HOWELL, District Judge.
This matter is before the Court on defendant's motion to dismiss and plaintiff's motion for appointment of counsel. For the reasons discussed below, defendant's motion will be granted, and plaintiff's motion will be denied as moot.
Plaintiff began working for the Inter-American Development Bank ("IADB") in June 2005, and at that time he had an Employment Authorization Card. Compl. at 2-3; see id., Ex. 4 (Employment Authorization Card valid from April 25, 2005 through April 24, 2006).
Plaintiff's last day of work at the IADB was March 30, 2007. Compl. at 6; see id., Ex. 16 (Letter to plaintiff from Jorge Sapoznikow dated April 3, 2007). On April 3, 2007, the IADB notified plaintiff in writing of its intention to terminate the RE2/SC2 Agreement effective April 18, 2007. Id. at 7; see id., Ex. 16. In a memorandum to the IADB's Ethics Committee, the reasons for the termination were described as follows:
Compl., Ex. 18 (Memorandum to Maria Borrero, Ethics Officer, Ethics Committee, from Robert J. Deal, Jr., Chief, Benefits and Payments Section, Human Resources Department, dated April 17, 2007).
The OII's findings of fact included the following:
Compl., Ex. 25 (Final Report of Investigation) ¶¶ 13-20 (references to attachments omitted); see also id., Ex. 29B (Memorandum to Jorge Sapoznikow from Claudia Valderrama dated March 28, 2007). Based on this information, the OII concluded that there was "sufficient evidence to demonstrate that [plaintiff] violated the [IADB's] Code of Ethics on ... March 16, 2007, when he knowingly provided false information on his G-IV application[]." Id., Ex. 25 ¶ 22. Plaintiff "knew that he had signed a contract with (RE2/SC2) only until December 31, 2007, as evidenced by his efforts to bypass the [IADB's] visa-application review process," and he "lied to the Benefits and Visas Officer when [he] stated that he had another contract ... that expired on July 31, 2008." Id., Ex. 25 ¶ 24.
The Ethics Committee held a hearing on September 18, 1997, Compl. at 15-16, during which plaintiff testified that the visa application submitted for the RE2/SC2 Agreement contained an incorrect date in error.
Id., Ex. 32 at 2. The recommendation was accepted by the Vice President for Finance and Administration ("VPF"), id., Ex. 35 (email to Maria Borrero dated December 20, 2007), and plaintiff was notified in writing of the Ethics Committee's decision, id., Ex. 36 (Letter to plaintiff from Maria Borrero dated February 29, 2008).
Plaintiff appealed to the IADB's Conciliation Committee, Compl. at 19; see id., Ex. 37-38 (Complaint Presentation Forms) & Ex. 42 (Letter to plaintiff from Luis M. Bauza, Secretary, Conciliation Committee, dated July 7, 2008).
Compl., Ex. 43 (Letter to plaintiff from Luis M. Bauza dated July 16, 2008). Plaintiff availed himself of an opportunity to seek relief with the IADB's Administrative Tribunal, id., Ex. 43, a body charged with "hear[ing] and pass[ing] judgment upon any application by which a staff member ... alleges non-observance of his contract of employment or terms and conditions of appointment," id., Ex. 46 (Statute of the Administrative Tribunal of the Inter-American Development Bank) art. 2 § 1. He challenged the termination of the RE2/SC2 Agreement and the two-year bar on future employment with the IADB. See id. at 22. The Tribunal heard oral argument on October 29, 2009, id., Ex. 45 (Judgment Case No. 70) at 1, and largely vindicated plaintiff by overturning the two-year bar on employment and by awarding compensation:
Id., Ex. 45 at 11.
In this action, plaintiff accuses the IADB of "abusing its power, br[eaking] its regulations in order to deny basic employment rights, ... conceal[ing] evidence in order to obstruct Justice, [and] ... delay[ing] and thwart[ing]" plaintiff's efforts to use the IADB's internal grievance process. Compl. at 1. His claims are directly related to his former employment with the IADB and arise from the termination of the RE2/SC2 Agreement. Plaintiff demands damages as compensation for violation of his right to due process, defamation, employment discrimination based on age, invasion of privacy, and intentional infliction of emotional distress. Id. at 27-28.
The IADB moves to dismiss the complaint under Rule 12(b)(1) of the Federal Rules of Civil Procedure on the ground that this Court lacks subject matter jurisdiction over plaintiff's claims. Mem. of P. & A. in Supp. of Def.'s Mot. to Dismiss ("Def.'s Mem.") at 13. Specifically, defendant argues that it is an international organization which is absolutely immune from suit for any claims arising from an employment relationship. See generally id. at 14-19. Because the Court lacks subject matter jurisdiction over plaintiff's claims, the Court will dismiss the complaint on this basis and will not address defendant's alternative arguments for dismissal.
For purposes of the International Organizations Immunities Act ("IOIA"), see 22 U.S.C. §§ 288-288k, the term "international organization" means "a public international organization in which the United States participates pursuant to any treaty... and which shall have been designated by the President through appropriate Executive order as being entitled to enjoy the privileges, exemptions, and immunities provided" in the IOIA. 22 U.S.C. § 288. Established in 1959, the IADB is an international organization the purpose of which is to "contribute to the acceleration of the process of economic development of the member countries, individually and collectively." Agreement Establishing the Inter-American Development Bank art. 1 § 1, Apr. 8, 1959, 10 U.S.T. 3029. The President has designated the IADB an international organization, see Exec. Order No. 10,873, 25 Fed. Reg. 3097 (Apr. 8, 1960); Exec. Order No. 11,019, 27 Fed. Reg. 4145 (Apr. 27, 1962), and it therefore enjoys the broad privileges and immunities conferred under the IOIA. See 22 U.S.C. § 283g ("The provisions of ... article XI, sections 2 to 9, ... of the agreement shall have full force and effect in the United States.").
The IADB has waived immunity to suits to the extent necessary to further its objectives. See Mendaro, 717 F.2d at 618. For example, the IADB may be sued by a debtor to enforce a loan agreement, see Lutcher S.A. Celulose e Papel v. Inter-Am. Dev. Bank, 382 F.2d 454 (D.C.Cir. 1967), or for matters arising from "commercial transactions with the outside world" such as "external relations with its debtors and creditors." Mendaro, 717 F.2d at 618 (emphasis in original); see also Vila v. Inter-Am. Inv. Corp., 570 F.3d 274, 282 (D.C.Cir.2009) ("Allowing such claims [as unjust enrichment] would mitigate possible hesitancies by independent consultants to negotiating and entering into formal contracts with the IIC by providing reassurance that if their agreement or formal contract failed, for whatever reason, they would be fairly compensated for any benefit they have provided that the IIC has unjustly retained."), reh'g en banc denied, 583 F.3d 869 (D.C.Cir.2009); Osseiran v. Int'l Fin. Corp., 552 F.3d 836, 840-41 (D.C.Cir.2009) (finding International Finance Corporation waived immunity from promissory estoppel and breach of confidentiality claims concerning alleged representations made during negotiations for sale of its investments to private parties).
Plaintiff attempts to avail himself of this limited waiver of immunity by characterizing his contractual relationship with the IADB as "participation in work ... with the `outside world' in a commercial setting." Pl.'s Opp'n at 35 (emphasis in original). He describes his project with the OVE as the "gathering of data, via computerized research and direct contact with officials in member countries, to compose the Country Evaluations, which are central to the [IADB's] function," id., and required him to manage a partnership with a consulting
"One of the most important protections granted to international organizations is immunity from suits by employees of the organization in actions arising out of the employment relationship." Mendaro, 717 F.2d at 615. Such immunity "is rooted in the need to protect international organizations from unilateral control by a member nation over the activities of the international organization within its territory." Id. (citation omitted). For example, the District of Columbia Circuit "upheld the immunity of the Organization of American States from a suit brought by employees alleging breach of their employment contracts." Id. at 616 (citing Broadbent v. Org. of Am. States, 628 F.2d 27 (D.C.Cir. 1980)). It found that "[d]enial of immunity opens the door to divided decisions of the courts of different member states passing judgment on the rules, regulations, and decisions of international bodies," serving to "undercut[] uniformity in the application of staff rules or regulations" which "would undermine the ability of the organization to function effectively." Broadbent, 628 F.2d at 35 (footnote omitted). Lawsuits arising from true commercial transactions "contrast sharply with the harassing interference noted in Mendaro of allowing a type of employee suit where an organization operates in many different countries." Vila, 570 F.3d at 282.
Plaintiff offers no argument or authority to establish that the IADB has waived immunity with respect to suits filed by employees, or that such suits further the IADB's purposes. Absent such a showing, the Court must find that it lacks subject matter jurisdiction over plaintiff's claims. See Aguado v. Inter-Am. Dev. Bank, 85 Fed.Appx. 776, 777 (D.C.Cir.2004) (per curiam) (finding that appellant failed to show that a lawsuit furthers the IADB's objectives so as to distinguish her claims from other employment disputes); Dujardin v. Int'l Bank for Reconstr. & Dev., 9 Fed. Appx. 19, 20 (D.C.Cir.2001) (concluding that bank was immune under the IOIA from defamation suit); Fazzari v. Inter-Am. Dev. Bank, 254 F.3d 315, 315 (D.C.Cir.2000) (per curiam) (finding that plaintiff's status as a retiree did not distinguish his claim from those that arise out of an employment relationship); Broadbent, 628 F.2d at 36 ("finding that "the employment disputes between the appellants and OAS were disputes concerning the internal administrative staff of the Organization," and absent a waiver of immunity with respect to such "non-commercial activity," the appellant's action had to be dismissed"); see also Atkinson v. Inter-Am. Dev. Bank, 156 F.3d 1335, 1336 (D.C.Cir. 1998) (affirming dismissal of declaratory judgment action against the IADB on the ground that it is absolutely immune under the IOIA from garnishment proceedings initiated in order to enforce Maryland court judgments for alimony and child support).
Because the Court lacks subject matter jurisdiction, defendant's motion to dismiss
Compl., Ex. 8C at 2 & Ex. 8D at 3.
Compl., Ex. 8C at 3 & 8D at 3.
To enable the [IADB] to fulfill its purpose and the functions with which it is entrusted, the status, immunities, and privileges set forth in this article shall be to the [IADB] in the territories of each member.
The [IADB] shall possess juridical personality and, in particular, full capacity:
Actions may be brought against the [IADB] only in a court of competent jurisdiction in the territories of a member in which the [IADB] has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities.
No action shall be brought against the [IADB] by members or persons acting for or deriving claims from members. However, member countries shall have recourse to such special procedures to settle controversies between the [IADB] and its members as may be prescribed in this Agreement, in the by-laws and regulations of the [IADB] or in contracts entered into with the [IADB].
Property and assets of the [IADB] shall, wheresoever located and by whomsoever held, be immune from all forms of seizure, attachment or execution before the delivery of final judgment against the [IADB].
Each member, in accordance with its juridical system, shall take such action as is necessary to make effective in its own territories the principles set forth in this article, and shall inform the Bank of the action which it has taken on the matter.
Agreement Establishing the Inter-American Development Bank art. XII, Apr. 8, 1959, 10 U.S.T. 3029.