D.C. Circuit Review – Reviewed: International Organization Immunity
Only a single decision out of the D.C. Circuit this week, and no administrative law to be found. But it does feature a win for my co-contributor Haley Proctor, who was on the brief representing Cuban physicians in Rodriguez v. Pan American Health Organization. The physicians sued the Pan American Health Organization (PAHO) for its role acting as a financial intermediary between Brazil and Cuba for a Brazilian program under which Cuba supplied physicians to Brazil—allegedly without their consent and in violation of human trafficking laws. Among other things, the physicians claimed that PAHO’s conduct violated 18 U.S.C. 1589, which prohibits “knowingly benefit[ting], financially or by receiving anything of value, from participation in a venture which has engaged in the providing or obtaining of labor or services by” force or threat. PAHO argued that it was immune from the claims under the International Organizations Immunities Act, which grants international organizations the same immunity as foreign sovereigns with respect to suits brought in American courts. But the district court held that PAHO lost its immunity under the commercial-activity exception, and the D.C. Circuit affirmed in a unanimous opinion by Judge Henderson.
The panel determined that it would analyze whether the commercial-activities exception applied by considering the gravamen of the action on a claim-by-claim basis rather than looking at the entirety of the complaint. Upon doing so, the panel concluded that the gravamen of the claim under section 1589 was PAHO’s conduct moving money for a fee—and thereby financially benefitting from participation in human trafficking—which occurred through its Washington, D.C. bank account. That wrongful conduct existed separate and apart from anything PAHO allegedly participated in abroad and thus fell within the exception.
PAHO also claimed that, as the WHO’s Regional Office for the Americas, it is entitled to immunity under the WHO Constitution. The WHO Constitution provides that the WHO “shall enjoy in the territory of each Member such privileges and immunities as may be necessary for the fulfillment of its objective and for such exercise of its functions.” But the Court concluded that this provision of the WHO’s Constitution is not self-executing and could not provide PAHO immunity absent a further agreement defining the WHO’s privileges and immunities.
Congrats to Haley and her colleagues on surviving the motion to dismiss!