Kling v. The World Health Organization, 532 F.Supp.3d 141

Background

Plaintiffs (Westchester County residents) sued the World Health Organization (WHO) for negligence in its early COVID-19 response, alleging delays and misinformation arising December 2019–March 2020 caused injury to plaintiffs and a putative countywide class.
Alleged WHO conduct: reliance on Chinese authorities, public praise of China, delayed recognition of human-to-human transmission, late declaration of PHEIC, and global guidance dissemination (including via online platforms and regional offices such as PAHO and the Western Pacific office).
WHO is a UN specialized agency with U.S. membership and offices worldwide; plaintiffs sued in Southern District of New York. Complaint amended twice; WHO moved to dismiss on immunity grounds under the WHO Constitution and the International Organizations Immunities Act (IOIA)/FSIA.
The Court considered jurisdiction under Rule 12(b)(1), accepted SAC factual allegations as true for the motion, and allowed consideration of evidence outside the complaint where appropriate.
Court held WHO immune: IOIA/FSIA supplies immunity; plaintiffs’ attempt to invoke the FSIA non-commercial tort exception failed because the "entire tort" did not occur in the U.S. and the alleged acts were discretionary policy decisions.
Leave to amend was denied with prejudice because plaintiffs had multiple opportunities to cure defects and immunity is a substantive bar not susceptible to further pleading.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether WHO is immune from suit under the WHO Constitution or IOIA/FSIA	WHO constitution/treaty immunity does not preclude suit or is not dispositive given U.S. withdrawal argument and other challenges	WHO enjoys absolute immunity under its constitution and independent immunity under IOIA/FSIA	Court did not resolve self-execution of WHO Constitution but found independent immunity under IOIA/FSIA and dismissed suit
Whether FSIA non-commercial tort exception applies ("entire tort" occurred in U.S.)	WHO disseminated injurious information via internet and U.S.-based platforms (and PAHO) so the tort occurred in the U.S.	The challenged conduct occurred abroad (China, Geneva, regional offices); use of U.S.-based internet platforms is insufficient to locate the entire tort in the U.S.	Exception fails: plaintiffs did not plausibly show the entire tort occurred in the U.S.
Whether discretionary-function exception bars suit even if tort occurred in U.S.	IHR and other instruments impose mandatory duties on WHO so decisions were non-discretionary	WHO’s decisions about public-health assessment and information-sharing involve policy judgments and are discretionary	Discretionary-function exception applies; policy judgments about risk and communication are immune from second-guessing by courts
Whether plaintiffs should get leave to amend	Plaintiffs sought opportunity (and earlier sought discovery) to cure defects	Defendant opposed; argued immunity is dispositive and facts were known earlier	Leave denied with prejudice as plaintiffs had multiple amendments, were given notice, and immunity is a substantive, incurable bar

Key Cases Cited

Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.A.R.L., 790 F.3d 411 (2d Cir. 2015) (standard for Rule 12(b)(1) and consideration of evidence outside the complaint)
Makarova v. United States, 201 F.3d 110 (2d Cir. 2000) (plaintiff bears burden to prove subject-matter jurisdiction)
Jam v. Int’l Fin. Corp., 139 S. Ct. 759 (2019) (FSIA governs immunity of international organizations under the IOIA)
In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 109 (2d Cir. 2013) ("entire tort" rule for FSIA non-commercial tort exception)
Jerez v. Republic of Cuba, 775 F.3d 419 (D.C. Cir. 2014) (entire-tort requires actionable conduct to occur within U.S.)
United States v. Gaubert, 499 U.S. 315 (1991) (discretionary-function exception covers policy-based governmental judgments)
USAA Cas. Ins. Co. v. Permanent Mission of Republic of Namib., 681 F.3d 103 (2d Cir. 2012) (discretionary-function exception applies in FSIA context)
Smith v. Socialist People’s Libyan Arab Jamahiriya, 101 F.3d 239 (2d Cir. 1996) (jus cogens violation does not constitute implied waiver of FSIA immunity)
Medellín v. Texas, 552 U.S. 491 (2008) (distinction between self-executing and non-self-executing treaties)