Zuza v. Office of the High Representaitve ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ZORAN ZUZA, :
:
Plaintiff, :
: Civil Action No.: 14-01099 (RC)
v. :
: Re Document Nos.: 19, 28, 30, 37
OFFICE OF THE HIGH REPRESENTATIVE, :
et al., :
:
Defendants. :
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 urges
1
Pub. L. No. 79-291, 59 Stat. 669 (1945) (codified as amended at 22 U.S.C.
§§ 288–288f-7).
the 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 as
2
a 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 with
2
Given that King’s relevant portions cite repeatedly to Supreme Court precedent, King
arguably does not articulate any new rule of statutory interpretation. See, e.g., King, 135 S. Ct. at
2489.
3
King’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’s
3
Extending Immunities to the Office of the High Representative in Bosnia and
Herzegovina and the International Civilian Office in Kosovo Act of 2010, Pub. L. No. 111-177,
124 Stat. 1260 (codified at 22 U.S.C. § 288f-7).
4
Exec. Order No. 13,568, 76 Fed. Reg. 13,497 (Mar. 8, 2011).
5
Indeed, Zuza appears to use King merely as a vehicle for reasserting his rejected
arguments concerning lack of waiver, a Ninth Circuit opinion’s silence, and the “U.S. Presence
Requirement.” See Mem. P. & A. Supp. Pl.’s Mot. Recons. 6–11; see also Zuza, 107 F. Supp. 3d
at 96–97 & n.7 (rejecting these arguments).
4
rejection 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 specifically
5
grant 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.
6
Zuza avers that he is “prepared to amend the Complaint to cite Lord Ashdown in his
‘official capacity as former High Representative.’” Mem. P. & A. Supp. Pl.’s Mot. Recons. 3 n.2,
42 n.70. To the extent that Zuza requests leave to amend the complaint in this manner, the Court
denies his request because it would be futile. See Zuza, 107 F. Supp. 3d at 99 (reviewing cases
and holding that a former official enjoys international official immunity under the IOIA “against
claims arising out of actions taken in his (prior) official capacity”). See generally Ali v. Carnegie
Inst. of Wash., 309 F.R.D. 77, 87 (D.D.C. 2015) (explaining that an amended pleading is futile if
it cannot withstand a motion to dismiss).
7
Without deciding the issue, the Court’s discussion of 22 U.S.C. § 288e(a) assumes, as
the Court’s prior opinion did, that Defendants have the burden to prove their IOIA immunity. See
Zuza v. Office of the High Representative, 107 F. Supp. 3d 90, 94 n.3 (D.D.C. 2015).
6
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 the Office of Foreign Missions. See Statement of Interest Ex. A, ECF No.
41-1. According to that letter, “[t]he official records of the Department of State” indicate that
Inzko and Ashdown “have been notified to the Secretary of State and accepted by the Director of
the Office of Foreign Missions, acting pursuant to delegated authority from the Secretary of
State.” Id.b. Notification and Acceptance Shown
With the government’s statement of interest and Seagroves’s signed letter, it is clear that
Inzko and Ashdown meet 29 U.S.C. § 288e(a)’s requirements. Seagroves’s letter expressly
confirms that Inzko and Ashdown have been “notified to” and “accepted by” the Secretary of
State, just as § 288e(a) prescribes. See 29 U.S.C. § 288e(a); Statement of Interest Ex. A. Letters
from Inzko to the State Department also show that the State Department was notified of Inzko
and Ashdown. See Defs.’ Suppl. Opp’n Ex. 24 & Ex. A, ECF No. 27-1 (requesting that a list of
individuals, including Inzko himself, be accepted as officers and employees entitled to IOIA
immunity); Defs.’ Suppl. Opp’n Ex. 25, ECF No. 26-11 (same, for Ashdown). And Zuza himself
implies that a certificate or letter from the Department of State is sufficient to show acceptance.
See Pl.’s Suppl. Brief 2, 11–15.
Instead of attacking the fact of Inzko’s and Ashdown’s notification and acceptance, Zuza
merely argues that the documents verifying notification and acceptance are “unauthenticated and,
therefore, inadmissible.” See Pl.’s Evidentiary Obj. 1, ECF No. 31 (objecting to Inzko’s letters to
7
the State Department); Pl.’s Evidentiary Obj. Exs. Attached to Statement of Interest, ECF No. 44
(objecting to Seagroves’s letter). But Federal Rule of Evidence 901 requires a proponent of
evidence merely to produce “evidence sufficient to support a finding that the item is what the
proponent claims it is.” Fed. R. Evid. 901(a). To satisfy the authentication requirement, the
proponent may use “[t]he appearance, contents, substance, internal patterns, or other distinctive
characteristics of the item, taken together with all the circumstances.” Fed. R. Evid. 901(b)(4).
Here, the letters from Inzko to the State Department bear the same letterhead and style as
a later letter, which the United States expressly endorsed as being from Inzko. Compare Defs.’
Suppl. Opp’n Ex. 24 & Ex. A and Defs.’ Suppl. Opp’n Ex. 25 with Statement of Interest Ex. B.
See also Statement of Interest 4 n.2 (describing the letter the government produced as a “Letter
from Valentin Inzko to Ambassador Gentry O. Smith”). In light of these circumstances, the
Court sees no reason to question the authenticity of Inzko’s letters.
Similarly, Seagroves’s letter was submitted directly by the Department of Justice on
behalf of the United States and bears the letterhead of the State Department. See Statement of
Interest Ex. A. Independent inquiry confirms that Clifton Seagroves is the Acting Deputy
Director of the Office of Foreign Missions and exercises State Department functions associated
with 22 U.S.C. § 288e. See Re-Delegation of Certain Authorities and Functions Under the
International Organizations Immunities Act, 80 Fed. Reg. 75,700 (Dec. 3, 2015) (delegating
§ 288e duties to the Deputy Director of the Office of Foreign Missions and other State
Department personnel); Key Personnel, U.S. Dep’t of State, http://www.state.gov/ofm/contact/
personnel/index.htm (last visited Feb. 4, 2016) (informing the public of Mr. Seagroves’s service
as Acting Deputy Director). As with Inzko’s letters, nothing gives the Court reason to question
the authenticity of the State Department’s letter.
8
Zuza’s evidentiary objections lack merit, and Zuza makes no arguments disputing the
relevant facts: Inzko and Ashdown were notified under 29 U.S.C. § 288e(a) to the Secretary of
State, and the Secretary of State accepted them under § 288e(a) as appropriate recipients of IOIA
immunity. Inzko and Ashdown therefore meet the requirements set forth in § 288e(a). On this
front, Zuza has not shown a “need to correct a clear error” of law. Ciralsky v. CIA, 355 F.3d 661,
671 (D.C. Cir. 2004); see also Kittner v. Gates, 783 F. Supp. 2d 170, 172 (D.D.C. 2011) (placing
the burden of proof for a Rule 59(e) motion on the movant).
c. Retroactive Notification and Acceptance Permissible
Even if Inzko and Ashdown did not meet 29 U.S.C. § 288e(a)’s requirements at the time
Zuza’s complaint was filed, that would not bar their IOIA immunity now. The IOIA itself states
that, once individuals merit IOIA immunity, they are immune not just “from suit,” but also from
“legal process.” 22 U.S.C. § 288d(b). And the weight of relevant case law favors finding that if
international officials acquire immunity during the pendency of a suit, the suit must be
dismissed. See generally Abdulaziz v. Metro. Dade Cnty., 741 F.2d 1328, 1329–30 (11th Cir.
1984) (discussing diplomatic immunity and holding that it “serves as a defense to suits already
commenced”); Fun v. Pulgar, 993 F. Supp. 2d 470, 474 (D.N.J. 2014) (same); Republic of
Philippines v. Marcos, 665 F. Supp. 793, 799 (N.D. Cal. 1987) (same). The Supreme Court, in
discussing foreign sovereign immunity, has stated that “such immunity reflects current political
realities and relationships, and aims to give foreign states and their instrumentalities some
present ‘protection from the inconvenience of suit as a gesture of comity.’” Republic of Austria
v. Altmann, 541 U.S. 677, 696 (2004). More broadly, the D.C. Circuit has explained that, for
parties who merit IOIA immunity, the IOIA creates a “baseline” of “absolute immunity” to all
kinds of suits. Atkinson v. Inter-Am. Dev. Bank, 156 F.3d 1335, 1341 (D.C. Cir. 1998).
9
These authorities persuade the Court that the IOIA, like diplomatic immunity and foreign
sovereign immunity, can serve as a defense to suits already commenced. As this Court has noted
before, IOIA immunity “is an immunity from trial and the attendant burdens of litigation, and not
just a defense to liability on the merits.” Garcia v. Sebelius, 919 F. Supp. 2d 43, 47 (D.D.C.
2013) (internal quotation marks omitted) (quoting Foremost–McKesson, Inc. v. Islamic Republic
of Iran, 905 F.2d 438, 443 (D.C. Cir. 1990))).8
Because IOIA immunity can apply retroactively, 22 U.S.C. § 288e(a)’s requirements will
not bar Inzko and Ashdown’s IOIA immunity, even if they first satisfied those requirements after
Zuza filed his complaint in this case. Thus, § 288e(a) is not a reason for the Court to disturb its
decision to find Inzko and Ashdown immune from suit.
3. Functional Immunity
Zuza also argues that the Court improperly held that the “functional” immunity
referenced in Tuck v. Pan American Health Organization, 668 F.2d 547, 550 n.7 (D.C. Cir.
1981), displaces the text of 22 U.S.C. § 288f-7. See Zuza v. Office of the High Representative,
8
Analogously, courts have held that IOIA immunity, even if obtained after the events at
issue in the litigation, still serves as a defense to suit. See, e.g., Garcia v. Sebelius, 867 F. Supp.
2d 125, 143–44 (D.D.C. 2012), vacated in part on other grounds, 919 F. Supp. 2d 43 (D.D.C.
2013); Weidner v. Int’l Telecomms. Satellite Org., 392 A.2d 508, 510 (D.C. 1978). For instance,
the District of Columbia Court of Appeals declared in this context that “[i]f a cause of action
arises and an individual . . . is subsequently clothed with immunity, courts lack jurisdiction to
entertain actions brought against such individuals . . . so long as the immunity exists.” Weidner,
392 A.2d at 510.
Although these cases assessed IOIA immunity using the date on which the complaints
were filed, they did so because of the facts of those cases. Both Garcia and Weidner concerned
foreign officials who gained immunity after the events triggering the lawsuits, but before the
complaints were filed. See Garcia, 867 F. Supp. 2d at 144; Weidner, 392 A.2d at 510. The
question before the Court now—whether immunity may apply retroactively if it is acquired
during the pendency of suit—was not squarely presented. Thus, where cases like Garcia and
Weidner imply that, for IOIA immunity to apply, it must be present when the complaint is filed,
that implication is merely dicta. It is not central to those cases’ holdings and accordingly does
not affect the Court’s analysis here.
10
107 F. Supp. 3d 90, 98–100 (D.D.C. 2015); Mem. P. & A. Supp. Pl.’s Mot. Recons. 38–39. But
his argument merely reiterates one the Court already rejected: Zuza’s previous argument that the
IOIA uses the words “officer” and “employee” in their technical sense. See Zuza, 107 F. Supp.
3d at 98–99; see also Pl.’s Mem. Opp’n Defs.’ Mot. Dismiss 38–42 (making the argument for a
technical interpretation). As the Court noted before, “the IOIA cannot bear such an ‘absurd
result.’” Zuza, 107 F. Supp. 3d at 98 (quoting Defs.’ Reply 5); see also United States v. Turkette,
452 U.S. 576, 580 (1981) (instructing that, in statutory interpretation, “absurd results are to be
avoided”). A motion for reconsideration is not a vehicle to relitigate this issue. See Estate of
Gaither ex rel. Gaither v. District of Columbia, 771 F. Supp. 2d 5, 10 (D.D.C. 2011).
D. Factual Background Adopted in the Court’s Opinion
Lastly, Zuza contends that the Court erred by including in its opinion certain facts not
alleged in the complaint concerning the Dayton Peace Agreement and the Peace Implementation
Council. See Mem. P. & A. Supp. Pl.’s Mot. Recons. 43–44; Zuza v. Office of the High
Representative, 107 F. Supp. 3d 90, 91 (D.D.C. 2015). Specifically, Zuza argues that because
Defendants had “conceded” certain factual issues, the Court should not have adjudicated them in
Defendants’ favor. See Mem. P. & A. Supp. Pl.’s Mot. Recons. 43.
The standard of review for a Rule 12(b)(1) motion to dismiss allows the Court to
“consider the complaint supplemented by undisputed facts evidenced in the record, or the
complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Coal.
for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation
mark omitted) (quoting Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)). But
contrary to Zuza’s argument, Defendants did not concede the factual issues to which Zuza refers,
and so those facts are not “undisputed.” Instead, Defendants’ motion to dismiss outlines the very
11
facts (adopted by the Court in its opinion) that Zuza says his complaint contradicts. See Mem. P.
& A. Supp. Defs.’ Mot. Dismiss 2–4, ECF No. 4-1. These facts were thus “disputed,” and the
Court was not required to adopt Zuza’s version; it could resolve the disputed facts based on the
record at the time of the Court’s decision. See Coal. for Underground Expansion, 333 F.3d at
198. For that reason, the Court’s factual summary did not contain “a clear error,” and the Court
need not reconsider its prior decision. See 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)).9
In sum, none of Zuza’s arguments urging reconsideration have merit. The Court will
therefore deny Zuza’s motion for reconsideration.
E. Zuza’s Other Motions
1. Motion to Strike
Zuza has also moved to strike portions of Defendants’ supplemental brief. See Pl.’s Mot.
Strike, ECF No. 28; see also Defs.’ Suppl. Opp’n, ECF No. 26 (containing the text at issue in
Zuza’s motion to strike). But this motion, like his motion for reconsideration, lacks merit.
Contrary to Zuza’s claim that the arguments contained in Defendants’ brief are “immaterial”
under Federal Rule of Civil Procedure 12(f), Defendants’ arguments directly respond to the
Court’s order, which directs the parties to address whether “Inzko and Ashdown presently satisfy
9
Moreover, in the portion of the Court’s opinion devoted to the Dayton Peace Agreement
and the Peace Implementation Council, the facts set forth there did not affect the merits of the
Court’s decision. See Zuza, 107 F. Supp. 3d at 93–100 (omitting, in the entirety of the Court’s
analysis, any reference to the Dayton Peace Agreement or the Peace Implementation Council).
Even if the Court’s view of these background facts were to change, it would not change the IOIA
immunity analysis. Zuza’s argument here is therefore futile. See generally Aygen v. District of
Columbia, 311 F.R.D. 1, 3 (D.D.C. 2015) (explaining, in the Rule 60(b) context, that “the
movant must provide the district court with reason to believe that vacating the judgment will not
be an empty exercise or a futile gesture” (alteration and internal quotation mark omitted)
(quoting Murray v. District of Columbia, 52 F.3d 353, 355 (D.C. Cir. 1995))).
12
the requirements of section 8(a).” See Order 3, ECF No. 23; Defs.’ Suppl. Opp’n 4–12; cf. Pl.’s
Mem. P. & A. Supp. Mot. Strike 3–6, ECF No. 28-1. And the remainder of Zuza’s motion seeks
to strike material that does not affect the Court’s analysis here. See Pl.’s Mot. Strike 6–8
(discussing personal jurisdiction and other defenses briefly mentioned in Defendant’s
supplemental brief); supra Parts III.A–D (declining to address those topics). The Court will
therefore deny Zuza’s motion to strike.
2. Motion for Jurisdictional Discovery
Zuza’s motion for leave to conduct jurisdictional discovery alleges that Zuza “requires
facts in order to respond to Individual Defendants’ fact-based jurisdictional defense.” Mem. P. &
A. Supp. Mot. for Leave to Conduct Limited Jurisdictional Discovery 3, ECF No. 30-1. But the
facts here are so clear that any jurisdictional discovery would be futile. See Peterson v. Islamic
Republic of Iran, 563 F. Supp. 2d 268, 274 (D.D.C. 2008) (“[J]urisdictional discovery . . . should
not be allowed when discovery would be futile.” (internal quotation marks omitted) (quoting
Crist v. Republic of Turkey, 995 F. Supp. 5, 12 (D.D.C. 1998))). Zuza does not factually dispute
the government’s statement that Inzko and Ashdown were notified to and accepted by the
Secretary of State, just as 29 U.S.C. § 288e(a) requires. See generally supra Part III.C.2
(discussing how the government’s statement is conclusive on this issue). As set forth above,
Zuza only challenges the authenticity of documents and legal implications of those facts. See id.
Neither of which requires the uncovering of unknown facts.
In fact, Zuza has offered no theory of what “facts” jurisdictional discovery would
uncover to refute Defendants’ immunity claims. See Mem. P. & A. Supp. Mot. for Leave to
Conduct Limited Jurisdictional Discovery 3. Because “jurisdictional discovery should be
permitted ‘only to verify allegations of specific facts,’” the Court will deny Zuza’s motion for
13
leave to conduct jurisdictional discovery. See Crist, 995 F. Supp. at 13 (quoting Arriba Ltd. v.
Petroleos Mexicanos, 962 F.2d 528, 534 (5th Cir. 1992)).
3. Motion for Order
Zuza’s last motion seeks an order obliging Defendants to respond to Zuza’s motion to
strike, Zuza’s motion for jurisdictional discovery, and one of Zuza’s evidentiary objections. See
Pl.’s Mot. Order, ECF No. 37. Because the Court will deny Zuza’s other motions and also finds
Zuza’s evidentiary objection meritless, the Court will deny Zuza’s last motion as moot. See
supra Part III.C.2.b (refuting Zuza’s evidentiary objection); supra Parts III.E.1–2 (discussing
Zuza’s motion to strike and motion for jurisdictional discovery).
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s motion for reconsideration (ECF No. 19) is
DENIED, Plaintiff’s motion to strike (ECF No. 28) is DENIED, Plaintiff’s motion for
jurisdictional discovery (ECF No. 30) is DENIED, and Plaintiff’s motion for the order adverted
to in the minute order of September 24, 2015 (ECF No. 37) is DENIED AS MOOT. An Order
consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: February 4, 2016 RUDOLPH CONTRERAS
United States District Judge
14