Smith v. World Bank Group

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
ADRIENNE SMITH, )
)
Plaintiff, )
)
v. ) Civ. Action No. 14-728 (EGS)
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WORLD BANK GROUP, and JIM YONG )
KIM, President, World Bank Group, )
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Defendants. )
__________________________________)
MEMORANDUM OPINION
Adrienne Smith brings this lawsuit alleging that the World
Bank and its President, Jim Yong Kim, discriminated against her
during the course of her employment. Ms. Smith appeared to have
properly served the defendants in September 2014, but the
defendants did not timely respond to the Complaint and the Clerk
of Court entered default against them. Days later, before any
motion for default judgment was filed, the defendants moved to
vacate the entry of default and to dismiss this case for lack of
jurisdiction. Upon consideration of the motions, the responses
and replies thereto, the applicable law, and the entire record,
the Court GRANTS the defendants’ motions, VACATES the default,
and DISMISSES this case.
I. Background
Ms. Smith worked for the World Bank from 1997 to 2012. See
Compl., ECF No. 1 at 2. Ms. Smith’s precise allegations of
discrimination are not clear from the Complaint, although she
alleges that “World Bank senior personnel managers resorted to
‘Gestapo,’ ‘Shang hai’ style tactics and threats against
Plaintiff.” Id. at 10; see also id. at 14 (alleging that a
manager, for discriminatory reasons, “targeted Plaintiff” and
sought to have her removed from her position). Ms. Smith also
makes more generalized allegations regarding the World Bank,
including that its “internal conflict system . . . has failed
miserably to provide due process to Black and African staff.”
Id. at 6; see also id. at 7–8.
In July 2012, Ms. Smith filed a complaint with the Equal
Employment Opportunity Commission (“EEOC”), alleging that the
World Bank had discriminated against her during the course of
her employment. See id. at 2. Ms. Smith’s complaint was
dismissed by the EEOC for lack of jurisdiction in January 2014.
See id.
Ms. Smith filed this lawsuit on April 25, 2014 “as the next
step” following the denial of her EEOC Complaint. See id. at 1.
On August 4, 2014, the Court entered an Order noting that the
deadline for Ms. Smith to serve process on the defendants was
approaching. See Order, ECF No. 3 at 1. The Court directed her
to do so by August 25, 2014, or risk dismissal of the case. See
id. On August 18, 2014, Ms. Smith filed an affidavit that
appeared to be partly responsive to the Court’s Order. See Aff.,
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ECF No. 4. The Court directed Ms. Smith to provide supplemental
materials sufficient to demonstrate that the defendants had been
properly served by no later than September 2, 2014. See Minute
Order of August 21, 2014.
Ms. Smith submitted in September 2014 a document that appeared
to show that she had served the defendants on September 8, 2014,
which produced a deadline of September 29, 2014 for their
response to the Complaint. See Minute Order of October 16, 2014.
Because no response had been filed by October 16, and Ms. Smith
had not further prosecuted her case, the Court entered a Minute
Order directing Ms. Smith to “show cause why this case should
not be dismissed for her failure to comply with Federal Rule of
Civil Procedure 55.” Id. (emphasis omitted).
On October 21, 2014, Ms. Smith submitted an affidavit seeking
entry of default. See Aff. for Default, ECF No. 9. The Clerk
entered default on October 22, 2014. See Entry of Default, ECF
No. 10. Six days later, the defendants moved to vacate that
entry of default and to dismiss the case for lack of
jurisdiction. See Mot. to Vacate, ECF No. 11; Mot. to Dismiss,
ECF No. 12. The Court then entered an Order, citing the D.C.
Circuit’s decisions in Fox v. Strickland, 837 F.2d 507 (D.C.
Cir. 1988) and Neal v. Kelly, 963 F.2d 453 (D.C. Cir. 1992),
which directed Ms. Smith to respond to the motions by no later
than November 28, 2014. See Order, ECF No. 13 at 2. Ms. Smith’s
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opposition brief was timely filed, Pl.’s Opp., ECF No. 15, and
the defendants filed their reply brief on December 8, 2014. See
Def.’s Reply, ECF No. 16. Ms. Smith subsequently moved for leave
to file a surreply. Mot. for Leave, ECF No. 17. The Court GRANTS
that unopposed motion and considers the surreply in adjudicating
the pending motions.1
II. Standard of Review
A. Vacating Entry of Default
Pursuant to Federal Rule of Civil Procedure 55(a), “[w]hen a
party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the
party’s default.” The Court may later “set aside an entry of
default for good cause.” Fed. R. Civ. P. 55(c). Generally, a
district court considering whether to set aside an entry of
default must consider “whether (1) the default was willful, (2)
a set-aside would prejudice plaintiff, and (3) the alleged
defense was meritorious.” Jackson v. Beech, 636 F.2d 831, 836
(D.C. Cir. 1980) (quotation marks omitted). Where a defendant is
immune from suit, however, “the Clerk’s subsequent entry of a
1 On March 24, 2015, Ms. Smith filed a “request for emergency
relief,” which appears to request expedited consideration of her
claims. See Mot. for Emergency Relief, ECF No. 19. In light of
the Court’s ruling that it lacks jurisdiction over this case,
that motion is DENIED AS MOOT.
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default . . . [is] void from the outset for lack of
jurisdiction.” Garcia v. Sebelius, 919 F. Supp. 2d 43, 46
(D.D.C. 2013) (citing Swarna v. Al-Awadi, 622 F.3d 123, 141 (2d
Cir. 2010)). “[W]ithout a valid entry of default in the first
instance, there is nothing for the Court to vacate.” Id.B. Rule 12(b)(1)
A federal district court may only hear a claim over which it
has subject matter jurisdiction; therefore, a Rule 12(b)(1)
motion for dismissal is a threshold challenge to a court’s
jurisdiction. On a motion to dismiss for lack of subject matter
jurisdiction, the plaintiff bears the burden of establishing
that the Court has jurisdiction. Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992). In evaluating the motion, the Court
must accept all of the factual allegations in the complaint as
true and give the plaintiff the benefit of all inferences that
can be drawn from the facts alleged. See Thomas v. Principi, 394
F.3d 970, 972 (D.C. Cir. 2005). The Court, however, is “not
required . . . to accept inferences unsupported by the facts
alleged or legal conclusions that are cast as factual
allegations.” Cartwright Int’l Van Lines, Inc. v. Doan, 525 F.
Supp. 2d 187, 193 (D.D.C. 2007) (quotation marks omitted).
III. Analysis
Although the defendants have filed separate motions for
vacatur of the entry of default and for dismissal of this case,
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the motions focus on the same issue: Whether the World Bank and
Mr. Kim are immune from this suit. If they are, the entry of
default would be void, Garcia, 919 F. Supp. 2d at 46, and the
case would be subject to dismissal. See Mendaro v. World Bank,
717 F.2d 610, 614 (D.C. Cir. 1983). If they are not immune, the
case may proceed.
The International Organizations Immunities Act, 22 U.S.C. §
288a, provides that:
International organizations, their property and their
assets, wherever located, and by whomsoever held, shall
enjoy the same immunity from suit and every form of
judicial process as is enjoyed by foreign governments,
except to the extent that such organizations may
expressly waive their immunity for the purpose of any
proceedings or by the terms of any contract.
Id. § 288a(b). Executive Order 9751 makes the World Bank subject
to this immunity. See Exec. Order No. 9751, 11 Fed. Reg. 7713(July 13, 1946). “There are only two sources of limitation to
the immunity: (1) the organization itself may waive its immunity
and (2) the President may specifically limit the organization’s
immunities when he selects the organization as one entitled to
enjoy the [Act’s] privileges and immunities.” Dujardin v. Int’l
Bank for Reconstruction & Dev., 9 F. App’x 19, 20 (D.C. Cir.
2001).
The World Bank has waived its immunity narrowly, only for
“actions relating to its external activities and contracts, and
not the internal administration of its civil servants.” Mendaro,
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717 F.2d at 621; see also Atkinson v. Inter-American Dev. Bank,
156 F.3d 1335, 1338 (D.C. Cir. 1998) (addressing a similar
waiver: “[T]he Bank’s immunity should be construed as not waived
unless the particular type of suit would further the Bank’s
objectives.”) (emphasis in original). As a consequence, the
World Bank has repeatedly been found not to have waived its
immunity in connection with internal employment-related
lawsuits. See, e.g., Mendaro, 717 F.2d 610 (employee’s Title VII
claim); Dujardin, 9 F. App’x at 20 (employee’s defamation
claim); Hudes v. Aenta Life Ins. Co., 806 F. Supp. 2d 180, 188
(D.D.C. 2011) (wrongful-termination claim).
Ms. Smith’s claims fall within this immunity. As another Judge
of this Court stated in finding that a claim regarding withheld
employee benefits could not proceed against the World Bank,
“[n]o matter how approached, this case cannot be characterized
as anything other than a suit arising out of the Bank’s
relationship with its own employees.” Chiriboga v. Int’l Bank
for Reconstruction & Dev., 616 F. Supp. 963, 967 (D.D.C. 1985)
(quotation marks and alteration omitted). Ms. Smith’s assertion
that she suffered discrimination in connection with her
employment is similarly subject to no characterization but that
of an employee-relations lawsuit. For that reason, the Court
finds that the World Bank has not waived its immunity from Ms.
Smith’s claims.
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Nor is there any indication that the President has directed
that the World Bank’s immunity be waived in a manner that would
permit Ms. Smith’s claims to proceed. The Executive Order
subjecting the World Bank to the immunity grant of 22 U.S.C. §
288a contained no such limitation. See Exec. Order No. 9751, 11
Fed. Reg. 7713 (July 13, 1946). Nor has Ms. Smith pointed the
Court to any other action or legal authority that might effect
such a waiver. Accordingly, the World Bank is immune from suit
for Ms. Smith’s claims.2
2 Ms. Smith alluded in her pleadings to various legal sources,
although she did not clearly identify those sources, and she
appears to concede that they did not create an additional waiver
of the World Bank’s immunity. See Compl., ECF No. 1 at 3
(requesting “external due process of mediation through the 2011
United States Appropriations Act, the Lugar/Leahy Act and the
Equal Employment Opportunity Commission (EEOC) Agreement to
Mediate”); id. at 6 (describing the 2011 “United States
Consolidated Appropriations Acts and the Lugar/Leahy Act” as
“not advocat[ing] against jurisdictional immunity for
organizations but express[ing] the clear legislative intention
that multilateral Bank employees must be able to seek due
process through alternative, external legal means such as
mediation or arbitration”); Pl.’s Opp., ECF No. 15 at 7 (“the
United States Consolidated Appropriation Act [of] 2012 . . .
requires the U.S. government to withhold approval for the Bank’s
capital increase until it has made substantial progress in
providing external, independent judicial access for staff. . . .
The intent of the Lugar-Leahy Amendment is to introduce an
independent, fair grievance resolutions system as an
international best practice without infringing on the World
Bank’s immunity”) (emphasis in original). To the extent that Ms.
Smith intended to rely on these provisions as a basis for
finding a waiver of immunity, her failure to identify the
relevant legal provisions combined with her admission at times
that those provisions do not affect the World Bank’s immunity,
renders such an argument impossible to evaluate. To the extent
Ms. Smith intended to rely on the appropriations bills and the
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For similar reasons, the World Bank’s President, Mr. Kim, is
immune from suit regarding these claims. Mr. Kim’s immunity is
governed by 22 U.S.C. § 288d(b), which states:
[O]fficers and employees of [international
organizations] shall be immune from suit and legal
process relating to acts performed by them in their
official capacity and falling within their functions .
. . except insofar as such immunity may be waived by the
. . . international organization concerned.
Ms. Smith has pointed to no basis for a finding that the World
Bank has waived Mr. Kim’s immunity in any way that would render
it less than the immunity reserved to the Bank. Because any
involvement by Mr. Kim in the employment actions giving rise to
Ms. Smith’s claims would relate to “acts performed by [him] in
[his] official capacity and falling within [his] functions,”
id., Mr. Kim is immune from Ms. Smith’s claims. Cf. Tuck v. Pan
Am. Health Org., 668 F.2d 547, 550 (D.C. Cir. 1981) (director of
the Pan-American Health Organization was immune under 22 U.S.C.
§ 288d “[t]o the extent that the acts alleged in the complaint
relate to [his] functions” as director).
IV. Conclusion
Because the Court finds that Mr. Kim and the World Bank are
immune from Ms. Smith’s claims, the Court must VACATE the entry
“Lugar-Leahy Amendment” as supporting an independent cause of
action entitling her to mediation or arbitration, she has failed
to plead such a claim with any sufficient particularity, Fed. R.
Civ. P. 8(a), and, in any event, the bank’s immunity would
appear to apply equally to such a cause of action.
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of default in this case as void. See Garcia, 919 F. Supp. 2d at
46. Moreover, the defendants’ immunity renders this Court
without jurisdiction, so the case must be DISMISSED. In light of
the Court’s lack of jurisdiction over this case, Ms. Smith’s
motion for emergency relief is DENIED AS MOOT. An appropriate
Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
April 21, 2015
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