Zuza v. Office of the High Representative , 857 F.3d 935 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted March 2, 2017 Decided May 30, 2017
No. 16–7027
ZORAN ZUZA,
APPELLANT
v.
OFFICE OF THE HIGH REPRESENTATIVE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:14–cv–01099)
Zoran Zuza, pro se, was on brief for the appellant.
Mark A. Cymrot was on brief for the appellees.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General at the time the brief was filed, United States
Department of Justice, H. Thomas Byron, III, and Edward
Himmelfarb, Attorneys, were on brief as amicus curiae in
support of the appellees.
Before: HENDERSON, TATEL and SRINIVASAN, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: This case
presents a straightforward question: What happens to a pending
lawsuit when the defendants establish that they are statutorily
immune from “legal process”? We conclude that it must cease.
We therefore affirm the district court’s dismissal for lack of
subject matter jurisdiction.
I. BACKGROUND
At the start of the 1990s, the Socialist Federal Republic of
Yugoslavia (Yugoslavia) was a multiethnic federation in
southeastern Europe. But throughout the early 1990s, the
country began to disintegrate. Bosnia and Herzegovina—one
of Yugoslavia’s six constituent republics—declared its
independence in early 1992. A bloody conflict ensued, ending
several years later with the 1995 Dayton Peace Agreement
(Agreement). The Agreement established Bosnia and
Herzegovina as an independent, democratic and multiethnic
state with two separate political subdivisions—the Republika
Srpska and the Federation of Bosnia and Herzegovina. It also
established the Office of the High Representative (OHR), a
body charged with overseeing parts of the Agreement’s
implementation on behalf of the international community. The
OHR receives “political guidance” from the Steering Board of
the Peace Implementation Council (PIC), the latter comprising
fifty-five countries and agencies that support the peace process
in various ways. Supplemental Appendix 11–12.
In the years following the Agreement, the PIC formally
convened several times. At one such gathering in Bonn,
Germany in December 1997, the PIC granted the High
Representative authority to “mak[e] binding decisions, as he
judges necessary, on . . . measures to ensure implementation of
the Peace Agreement throughout Bosnia and Herzegovina.” Id.
at 37. The measures include “actions against persons holding
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public office or officials . . . who are found by the High
Representative to be in violation of legal commitments made
under the Peace Agreement or the terms for its
implementation.” Id. One year later, at its December 1998
Madrid Conference, the PIC determined that “leaders whom
the High Representative . . . bar[s] from official office may
also be barred from running in elections and from any other
elective or appointive public office and from office within
political parties until further notice.” Id. at 66.
In June 2004, then-High Representative Jeremy Ashdown
removed Zoran Zuza from his post in the Republika Srpska
government. Ten years later, Zuza sued the OHR, Ashdown
and Valentin Inzko, the current High Representative. Zuza v.
Office of High Representative, 107 F. Supp. 3d 90, 92 (D.D.C.
2015). On June 4, 2015, the district court determined that all
defendants were statutorily immune to Zuza’s suit under the
International Organizations Immunities Act (IOIA), 22 U.S.C.
§§ 288 et seq. As the court explained, the IOIA generally
extends immunity to an international organization, its officers
and its employees, if the United States participates in it and if
the President has designated it as entitled to immunity through
an executive order. 22 U.S.C. §§ 288, 288a(b), 288d(b).1 To
extend such protection to the OHR, the Congress in 2010
enacted legislation making the OHR immune “in the same
manner, to the same extent, and subject to the same conditions”
as an international organization in which the United States
participates. Extending Immunities to the Office of the High
1
IOIA immunity is absolute. Atkinson v. Inter-Am. Dev. Bank,
156 F.3d 1335, 1341–42 (D.C. Cir. 1998). Nevertheless, it comes
subject to two sources of limitation: An organization may expressly
waive its immunity and the President may limit or modify an
organization’s immunity under certain circumstances. Mendaro v.
World Bank, 717 F.2d 610, 613–14 (D.C. Cir. 1983).
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Representative in Bosnia and Herzegovina and the
International Civilian Office in Kosovo Act of 2010, sec. 2,
§ 17, 124 Stat. 1260 (2010) (codified at 22 U.S.C. § 288f-7).
On March 8, 2011, the President issued an Executive Order
formally extending IOIA immunity to the OHR, its officers and
its employees. Exec. Order No. 13,568, 76 Fed. Reg. 13,497
(Mar. 8, 2011). Given this history, the district court readily
concluded OHR, Ashdown and Inzko were immune from
Zuza’s suit, which it accordingly dismissed for lack of subject
matter jurisdiction.
Shortly thereafter, Zuza sought reconsideration. Among
other things, he argued that Ashdown and Inzko had not
complied with section 8(a) of the IOIA and so were not entitled
to immunity. Section 8(a) provides that no person is entitled to
IOIA immunity until one of three conditions precedent is
fulfilled. 22 U.S.C. § 288e(a). The first is met when the person
seeking immunity “ha[s] been duly notified to and accepted by
the Secretary of State as a representative, officer, or
employee[.]” Id.2 The district court ordered supplemental
briefing and requested a statement of interest from the United
States. The United States responded that Ashdown and Inzko
had been notified to and accepted by the Secretary of State
(Secretary) and thus qualified for immunity.
The defendants and the United States submitted four
letters substantiating Ashdown’s and Inzko’s notification and
acceptance. The first was a June 2011 letter from Inzko to then-
Secretary Hillary Clinton, notifying her of nearly three dozen
2
The other two are fulfilled when a person “ha[s] been
designated by the Secretary of State, prior to formal notification and
acceptance, as a prospective representative, officer, or employee” or
“is a member of the family or suite, or servant, of one of the
foregoing accepted or designated representatives, officers, or
employees.” 22 U.S.C. § 288e(a).
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OHR officers and employees. That list included Inzko but not
Ashdown. The other three letters were all dated August 2015
or later, meaning they were written well after Zuza brought
suit. On August 13, 2015, Inzko wrote then-Secretary John
Kerry to “formally present and ‘notify’” Ashdown to him.
Supplemental Appendix 135. Then, on August 17, 2015, Inzko
wrote Ambassador Gentry O. Smith to “request written
confirmation that the notifications of Lord Ashdown and
[Inzko] were accepted by the Secretary of State.” Joint
Appendix 105. And finally, on November 20, 2015, Clifton
Seagroves, the Acting Deputy Director of the State
Department’s Office of Foreign Missions, composed a letter
confirming that State Department records reflected both
Ashdown’s and Inzko’s notification and acceptance.
Based on these letters, the district court denied
reconsideration. It found that Ashdown and Inzko met section
8(a)’s requirements. The court found no problem with the fact
that most of the letters postdated Zuza’s suit. It concluded that
IOIA immunity can apply “retroactively” to reach litigation
already commenced. Zuza v. Office of the High Representative,
No. CV 14-01099 (RC), 2016 WL 447442, at *6 (D.D.C. Feb.
4, 2016). It thus denied reconsideration and Zuza appealed.
II. ANALYSIS
Zuza’s challenges on appeal are many. We have fully
considered each but find none persuasive. We limit our
discussion to one—namely, whether Ashdown and Inzko were
entitled to immunity, even if section 8(a)’s requirements were
not met until August 2015 or later. We review the district
court’s resolution of this question of law de novo. Nyambal v.
Int’l Monetary Fund, 772 F.3d 277, 280 (D.C. Cir. 2014).3 We
3
It is of no moment that the district court addressed this issue
in denying Zuza’s Rule 59(e) reconsideration motion. Although we
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agree that the district court lacked subject matter jurisdiction
regardless of the date Ashdown and Inzko’s immunity vested.
The IOIA’s text compels our conclusion. It entitles
qualifying officers and employees to immunity not only from
“suit” but also from “legal process.” 22 U.S.C. § 288d(b).
Legal process is an expansive term. It refers broadly to “[t]he
proceedings in any action.” BLACK’S LAW DICTIONARY 1399
(10th ed. 2014); see WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY, UNABRIDGED 1808 (1993) (defining process to
include “the course of procedure in a judicial action or in a suit
in litigation”). As we have explained, IOIA immunity, “where
justly invoked, properly shields defendants not only from the
consequences of litigation’s results but also from the burden of
defending themselves.” Tuck v. Pan Am. Health Org., 668 F.2d
547, 549 (D.C. Cir. 1981) (internal quotation marks omitted).
For these reasons, IOIA immunity does not operate only at a
lawsuit’s outset; it compels prompt dismissal even when it
attaches mid-litigation.
This is not an anomalous conclusion. Courts have found
that other forms of immunity acquired pendente lite mandate
dismissal of a validly commenced lawsuit. See, e.g., Abdulaziz
v. Metro. Dade Cty., 741 F.2d 1328, 1329–30 (11th Cir. 1984)
(“[D]iplomatic immunity . . . serves as a defense to suits
already commenced.”). And that makes sense. Federal courts
are tribunals of “limited jurisdiction,” possessing “only that
power authorized by Constitution and statute[.]” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
When intervening events deprive a court of its adjudicative
authority, the litigation must end. For example, an action may
ordinarily review a Rule 59(e) motion’s denial for abuse of
discretion, our review is de novo when the district court considers
and rejects a legal argument. E.g., Dyson v. District of Columbia,
710 F.3d 415, 420 (D.C. Cir. 2013).
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be dismissed upon the repeal of the jurisdictional statute under
which the case was brought. Landgraf v. USI Film Prod., 511
U.S. 244, 274 (1994). Or it may end when the President
exercises his lawful authority to restore a nation’s previously
abrogated sovereign immunity. Republic of Iraq v. Beaty, 556
U.S. 848, 866 (2009). Circumstances vary but the guiding
principle is the same: Removing judicial power to adjudicate a
case compels its dismissal.
So too here. Seagroves’s letter left no doubt that Ashdown
and Inzko had been “duly notified to and accepted by the
Secretary of State as a representative, officer, or employee[.]”
22 U.S.C. § 288e(a). Under these circumstances, they are
“immune from suit and legal process relating to acts performed
by them in their official capacity and falling within their
functions as such representatives, officers, or employees[.]” Id.
§ 288d(b). Accordingly, we affirm the district court’s
judgment.
So ordered.