956 F.Supp.2d 17
D.D.C.2013Background
- Lempert, pro se attorney/anthropologist, sues UN, UNDP, and Rice for breach of contract, fraud, and harassment over a Laos project.
- UNV/UNDP Laos offered a one-year renewable position; start delayed and visa/clearance issues arose; UNDP later rescinded the position when Laos government would not issue a long-term visa.
- Plaintiff alleges UN/UNDP withheld or displaced him with two other lawyers and failed to obtain proper government approvals, concealing misconduct.
- Plaintiff claims Rice failed to respond or intervene, and seeks damages and an independent investigation; complaint lacks specific relief allocation.
- Defendants move to dismiss; government files Statement of Interest on UN immunity; plaintiff seeks service and sanctions against UN/UNDP; court considers jurisdiction and immunity issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are UN/UNDP immune from suit and thus dismissed for lack of subject matter jurisdiction? | Lempert argues immunity should not bar review and that service should be allowed. | UN/UNDP enjoy absolute immunity under the General Convention and IOIA; no express waiver present. | UN/UNDP immune; claims dismissed for lack of jurisdiction. |
| Whether Rice is properly sued and whether FTCA substitutes the United States for her in official capacity claims? | Sues Rice personally/officially for contract breach and related harms. | Westfall Act certifies Rice acted within scope; United States substituted; contract claim against Rice fails. | Claims against Rice dismissed; United States substituted where appropriate. |
| Whether Lempert's FTCA-based claims against Rice/USA satisfy administrative exhaustion requirements? | FTCA claims are viable for tort-like conduct by federal employees. | FTCA administrative filing requirements were not exhausted; dismissal required. | FTCA exhaustion not satisfied; fraud claim against United States dismissed for lack of jurisdiction. |
| Whether Lempert plausibly states a fraud claim against Rice or is barred by lack of proper pleading? | Rice facilitated the UN's alleged fraud; should be liable for related harms. | Allegations are conclusory and fail to plead essential elements of fraud. | Fraud claim against Rice dismissed for failure to plead fraud elements. |
| Whether a Bivens claim against Rice in her personal capacity is viable and should be allowed or dismissed? | Requests constitutional remedies against Rice personally. | Bivens claim not properly pleaded; no individual liability shown; service deficiencies. | Bivens claim dismissed; cannot survive dismissal. |
Key Cases Cited
- Brzak v. United Nations, 597 F.3d 107 (2d Cir. 2010) (UN immunity generally absolute absent express waiver)
- Boimah v. United Nations General Assembly, 664 F. Supp. 69 (E.D.N.Y. 1987) (immunity framework under UN General Convention and IOIA)
- De Luca v. United Nations Org., 841 F. Supp. 531 (S.D.N.Y. 1994) (UN immunity analysis and IOIA impact)
- Atkinson v. Inter-American Development Bank, 156 F.3d 1335 (D.C. Cir. 1998) (IOIA and immunity scope in international financial institutions)
- Osborn v. Haley, 549 U.S. 225 (2007) (Westfall Act certification; replacement by United States as defendant)
- Edwards v. Dist. of Columbia, 616 F. Supp. 2d 112 (D.D.C. 2009) (FTCA administrative exhaustion requirements guidance)
- Bennett v. Kiggins, 377 A.2d 57 (D.C. 1977) (fraud pleading standards and reliance principles)