Eugene Nyambal v. International Monetary Fund , 772 F.3d 277 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 5, 2014 Decided November 25, 2014
No. 13-7115
EUGENE NYAMBAL,
APPELLEE
v.
THE INTERNATIONAL MONETARY FUND,
APPELLANT
Consolidated with 14-7025
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-01037)
Patrick J. Carome argued the cause for appellant. With
him on the brief were Christopher L. Morgan and Adam I.
Klein.
John M. Shoreman argued the cause and filed the briefs
for appellee.
Before: TATEL and BROWN, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge BROWN.
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BROWN, Circuit Judge: The International Monetary
Fund’s (“Fund’s”) motion to dismiss this tort suit was
converted into a discovery dispute when the district court,
over the Fund’s objections, granted plaintiff’s request for
jurisdictional discovery. The Fund sought reconsideration of
the discovery order; the court denied it and separately
disposed of the motion to dismiss as moot because the
plaintiff had filed an amended complaint. Because we think
more than a bare assertion that “something may turn up” is
necessary to justify jurisdictional discovery in the face of the
Fund’s broad immunity, we reverse.
I
Eugene Nyambal, a former senior advisor to the Fund,
says he was terminated after raising allegations of corruption.
Shortly after he and the Fund went their separate ways, Mr.
Nyambal says he entered the Bank-Fund Staff Credit Union
(“Credit Union”), a public credit union located in leased space
on the Fund’s premises, to transact personal banking business
and was “accosted” by the Credit Union’s security personnel
who “escorted [him] from the Credit Union in full view of the
public and a professional colleague . . . .” Complaint at 6
¶ 13, Nyambal v. Int’l Monetary Fund, No. 1:12-cv-01037
(D.D.C. May 2, 2014). Based on this incident, Nyambal filed
suit against the Fund, asserting claims for assault, false
imprisonment, and intentional infliction of emotional distress.
The Fund submitted affidavits categorically denying any
express waiver of the absolute immunity conferred by its
Articles of Agreement and the International Organization’s
Immunity Act (IOIA), see generally Articles of Agreement,
Art. IX § 3 (given force of law by 22 U.S.C. § 286h); IOIA,
Pub. L. No. 79-291, 59 Stat. 669 (1945) (codified at 22 U.S.C.
3
§ 288a(b)). When the Fund moved to dismiss, invoking its
absolute immunity, Nyambal countered by moving to stay the
dismissal motion and seeking jurisdictional discovery to show
the Fund had expressly waived its immunity in its contracts
with the Credit Union or the security services firm. Although
the Fund’s affidavits confirmed no express waiver had been
contemplated, presented to the Board, or approved, the district
court authorized jurisdictional discovery. The Fund moved
for reconsideration and voluntarily furnished complete copies
of the Credit Union and security services contracts. The
Fund’s overtures proved unavailing. The district court
rebuffed its entreaty for reconsideration; in the court’s view,
full disclosure of the two pertinent contracts did not, “obviate
the need for further jurisdictional discovery.” Minute Order,
Nyambal v. Int’l Monetary Fund, No. 1:12-cv-01037 (D.D.C.
Feb. 12, 2014).
The district court agreed with Nyambal that
“inconsistencies in the contracts,” id., rendered
reconsideration ill-advised. Article 28 of the Credit Union
lease contract expressly provides for non-waiver. See
Patterson Aff. ¶ 2 (“[T]he Fund “does not, by virtue of this
Lease, waive [its] immunities, which may only be waived by
a decision of the Executive Board of the International
Monetary Fund.”). Yet Article 13.1 provides that the Fund
“shall not be liable for any personal injury to, or damages to
the personal property of, Tenant, Tenant’s . . . business
invitees, . . . customers, clients, [or] . . . guests[,] . . . arising
from the use, occupancy and condition of the Premises or the
Building, unless such personal injury or damage to property
resulted solely from the negligence or willful misconduct of
the Landlord, its agents or employees.” Brief of Defendant-
Appellant at 48, Nyambal v. Int’l Monetary Fund, No. 13-
7115 (D.C. Cir. May 2, 2014) (emphasis added). Thus, in
Nyambal’s—and the district court’s—view the second sub-
4
clause of Article 13.1 is suggestive of waiver or is otherwise
in tension with Article 28’s broad and express denial.
In a separate order, issued the same day, the court also
granted Nyambal’s motion to amend his complaint. In light
of Nyambal’s amended complaint, the court denied the
Fund’s motion to dismiss as moot.
Twice spurned below on the issue of jurisdictional
discovery, the Fund now challenges the district court’s
discovery orders on appeal. The Fund also contests the denial
of its motion to dismiss.
II
A couple of preliminary questions about our jurisdiction
must be resolved before we can consider the substance of the
Fund’s claims. Ordinarily, we have jurisdiction only to
review final decisions of the district court, 28 U.S.C. § 1291,
but under collateral order doctrine, section 1291 jurisdiction is
available for a small subset of decisions which “finally
determine claims of right separable from, and collateral to,
rights asserted in the action, too important to be denied review
and too independent of the cause itself to require [] appellate
consideration to be deferred . . . .” Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949). Thus, a decision may
be collaterally appealed if it: [1] “conclusively determine[s]
the disputed question, [2] resolve[s] an important issue
completely separate from the merits of the action, and [3] [is]
effectively unreviewable on appeal from final judgment.”
Will v. Hallock, 546 U.S. 345, 349 (2006).
A district court’s grant of discovery against an absolutely
immune defendant is sufficiently conclusive to qualify for
collateral review. See generally Foremost-McKesson, Inc. v.
5
Islamic Republic of Iran, 905 F.2d 438, 443 (D.C. Cir. 1990).
“[A] trial court’s denial of an immunity defense entitles the
defendant to an immediate appeal . . . .” In re Papandreou,
139 F.3d 247, 251 (D.C. Cir, 1998). Just as a district court’s
denial of sovereign immunity finally determines the foreign
state’s right to be immune from the burden of a lawsuit, a
court’s grant of jurisdictional discovery denies an
international organization protection from similar burdens.
See Beecham v. Socialist People’s Libyan Arab Jamahiriya,
424 F.3d 1109, 1111 (D.C. Cir. 2005). “Here too . . .
immediate review is appropriate.” In re Papandreou, 139
F.3d at 251.
Similarly, the denial of a motion to dismiss on immunity
grounds would satisfy the Cohen criteria for interlocutory
review. Kilburn v. Socialist People’s Arab Jamahiriya, 376
F.3d 1123, 1126 (D.C. Cir. 2004). However, in this case, the
district court’s denial did not rest on the Fund’s claim of
immunity. Instead, the court found Nyambal’s filing of an
amended complaint mooted the motion to dismiss. Because
the court did not resolve the question of immunity in denying
the motion to dismiss, interlocutory review is available for the
grant of jurisdictional discovery but not the determination of
mootness. As the Fund itself concedes, Nyambal’s amended
pleading “effect[s] no material change in his factual
allegations or legal theories,” Brief of Defendant-Appellant at
55, or otherwise requires more than a single renewal of the
Fund’s pre-existing motion.
III
Our review of “[a] foreign nation’s entitlement to
sovereign immunity raises questions of law reviewable de
novo.” McKesson HBOC, Inc. v. Islamic Republic of Iran,
271 F.3d 1101, 1105 (D.C. Cir. 2001), vacated on other
6
grounds, 320 F.3d 280 (D.C. Cir. 2003). See also Kirkham v.
Société Air France, 429 F.3d 288, 291 (D.C. Cir. 2005).
However, “we review the district court’s findings of fact—
including facts that bear upon immunity and therefore upon
jurisdiction—for clear error; hence, . . . once the facts have
been settled, we decide de novo whether those facts are
sufficient to divest the foreign sovereign of its immunity.”
Price v. Socialist People’s Libyan Arab Jamahiriya, 389 F.3d
192, 197 (D.C. Cir. 2004). We apply the same analytical
approach to an international organization’s claim of
immunity.
In the context of the IOIA, we have noted that “immunity,
where justly invoked, [] shields defendants not only from the
consequences of litigation’s results but also from the burden
of defending . . . .” Tuck v. Pan Am. Health Org., 668 F.2d
547, 549 (D.C. Cir. 1981). The sweep of the Fund’s
immunity is broader than the protection afforded by the
IOIA’s aegis alone. Under the dual protections conferred by
the Fund’s Articles of Agreement and the IOIA, “[t]he Fund .
. . enjoy[s] immunity from every form of judicial process
except to the extent that it expressly waives its immunity for
the purpose of any proceedings or by the terms of any
contract.” Articles of Agreement, Art. IX § 3; IOIA, Pub. L.
No. 79-291, 59 Stat. 669 (1945). Nyambal does not dispute
that the Fund is immune absent express waiver under its
Articles of Agreement. In light of the Third Circuit’s decision
in OSS Nokalva, Inc. v. European Space Agency, 617 F.3d
756 (3d Cir. 2010), he nonetheless requests this Court to “re-
visit” its decision in Atkinson v. Inter-American Dev. Bank,
156 F.3d 1335 (D.C. Cir. 1998), and narrow the scope of
IOIA sovereign immunity for international organizations. We
decline to do so. Atkinson remains vigorous as Circuit law;
international organizations “enjoy the same immunity from
suit and every form of judicial process as is enjoyed by
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foreign governments, except to the extent that such
organizations [] expressly waive their immunity.” 156 F.3d at
1337. See Critical Mass Energy Project v. Nuclear
Regulatory Comm’n, 975 F.2d 871, 876 (D.C. Cir. 1992)
(“[Prior] decisions . . . bind the circuit unless and until
overturned by the court en banc or by Higher Authority.”).
The Fund argues that its multi-layered immunities warrant
blanket protection from effectively all forms of jurisdictional
discovery. Such a result is unwarranted; though unusually
expansive, the Fund’s immunity may be defeated by a
showing of express waiver. The Fund’s entitlement . . . to
immunity from suit therefore remains “a critical preliminary
determination” and the parties “must be afforded a fair
opportunity to define issues of fact and law, and to submit
evidence necessary to the resolution of the issues.” Foremost-
McKesson, Inc., 905 F.2d at 449. While jurisdictional
discovery may be warranted only in comparatively rare
circumstances, it is appropriate where a plaintiff articulates a
“specific, well-founded allegation that an express waiver
exists.” Polak v. Int’l Monetary Fund, 657 F. Supp. 2d 116,
122 (D.D.C. 2009); see Jacobs v. Vrobel, 724 F.3d 217, 221
(D.C. Cir. 2013) (looking to the “plausibility” of allegations,
in the context of a waiver of immunity under the Federal Tort
Claims Act).
Nyambal stumbles at this threshold hurdle of plausibility.
“[D]iscovery should be ordered circumspectly and only to
verify allegations of specific facts crucial to an immunity
determination.” First City, Texas-Houston, N.A. v. Rafidain
Bank, 150 F.3d 172, 176 (2d Cir. 1998). Yet Nyambal relied
below upon little more than bare assertion in support of his
initial requests for discovery; for example, simply speculating
that the Credit Union and security service contracts would
“undoubtedly address the [Fund’s] liability for actions arising
8
from acts and occurrences related to” public transactions
performed under the contract without offering any specific,
non-conclusory factual allegations to explain why such
contracts could plausibly be thought to incorporate an express
waiver of the Fund’s immunity as to third party invitees.
Plaintiff’s Response to Motion to Dismiss at 6, Nyambal v.
Int’l Monetary Fund, No. 1:12-cv-01037 (D.D.C. Dec. 28,
2012). Because Nyambal’s assertions amount to mere
“conjecture and surmise,” they cannot provide sufficient
support to justify jurisdictional discovery. Crist v. Republic
of Turkey, 995 F. Supp. 5, 13 (D.D.C. 1998).
Moreover, the Fund’s subsequent voluntary disclosure of
the Credit Union contract conclusively resolved any question
of waiver. 1 Article 13.1 of the contract provides that the Fund
“shall not be liable for any personal injury to or damage to . . .
[the Credit Union’s] business invitees, . . . customers, clients,
[or] . . . guests . . . unless such personal injury or damage to
property resulted solely from the negligence or willful
misconduct of the Landlord.” Brief of Defendant-Appellant
at 48. Nyambal postulates that the “unless” sub-clause is an
express waiver that directly contradicts the contract’s Article
28 blanket non-waiver provision. He therefore argues that the
Fund’s voluntary release of the contract did not eliminate the
need for further discovery because, in his view, the contract
“raise[s] more questions than [it] answer[s].” Brief of
Plaintiff-Appellee at 18–20, Nyambal v. Int’l Monetary Fund,
No. 13-7115 (D.C. Cir. June 4, 2014).
Nothing in Article 13.1 of the Credit Union contract,
however, directly contradicts Article 28’s broad language of
1
The Fund’s contract with the security services firm was also
voluntarily furnished. Waiver under that contract is not directly
contested on appeal.
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non-waiver. Indeed, the thrust of the article’s intent is clear
from its title: it deals with “limitations o[n] liability” to the
Fund under the contract. The article’s “unless” sub-clause
can readily be interpreted as a limitation on waiver where the
Fund has already expressly waived its immunity, rather than a
curiously obscure form of express waiver buried in a clause
intended to limit the scope of liability owed by the Fund.
See 17A Am. Jur. 2d Contracts § 384 (“No contract provision
should be construed as being in conflict with another unless
no other reasonable interpretation is possible.”). Read in
context, the “unless” sub-clause of Article 13.1 is simply
insufficient to be interpreted as constituting a potential
express waiver warranting further discovery. Moreover, the
Fund’s affidavits, e.g., Lin Aff. at ¶¶ 3–4, and the
unambiguous language of Article 28’s contractual non-waiver
clause require that any waiver of immunity occur through a
“decision of the Executive Board of the International
Monetary Fund,” Patterson Aff. at ¶ 3 (quoting Article 28).
Nyambal has not raised any specific, plausible assertion that
the contracts contain an express waiver; or that the Board
itself has actually ratified any purported contractual waiver;
nor has he otherwise suggested that an express waiver can
occur in the absence of such ratification. 2 Consequently, the
Fund’s voluntary disclosure of the contested contracts did
obviate the need for any further discovery.
Nyambal raises a secondary argument that the Credit
Union’s Article 15 indemnification clause is inexplicable
2
In addition to the Board ratification requirement of Article 28 of
the Credit Union contract, the Fund’s affidavits assert any
purported waiver is inoperative absent ratification under the Fund’s
Articles of Agreement and its By-Laws. Lin Aff. at ¶ 3. Whether
an express waiver of immunity in a contract signed by an executive
officer of the Fund would be nullified by the absence of Board
ratification is a question we leave for another day.
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absent an intention for the Fund to waive its immunity.
Nyambal reasons that the contract thereby creates a
“framework” to allow the Fund to expressly waive its
immunity in the normal course of business. But a
“framework” permitting the possibility of waiver is not a
“specific, well-founded allegation that an express waiver
[actually] exists.” Polak, 657 F. Supp. 2d at 122. It is
undisputed that the Fund “could” waive its immunities.
Nyambal’s framework theory consists of nothing more than
unsupported speculation that the Fund “may” have done so.
IV
For the foregoing reasons we reverse the district court’s
orders permitting jurisdictional discovery. We remand for
further proceedings consistent with this decision.
So ordered.