El Omari v. the International Criminal Police OrganizationEl Omari v. the International Criminal Police Organization
Oussama El Omari appeals from the dismissal, for lack of subject matter jurisdiction, of his civil action against the International Criminal Police Organization (“Interpol“), based on the district court‘s conclusion that Interpol is immune from suit under the International Organizations Immunities Act,
SCOTT M. MOORE, Moore International Law PLLC, New York, NY, for Plaintiff-Appellant.
GINGER D. ANDERS (Jonathan S. Meltzer, on the brief), Munger, Tolles & Olson LLP, Washington, DC, for Defendant-Appellee.
Plaintiff-Appellant Oussama El Omari brought this action in the United States District Court for the Eastern District of New York against the International Criminal Police Organization, commonly known as “Interpol,” charging negligent infliction of emotional distress and violation of his right to due process of law under the New York State Constitution, after Interpol refused to delete a so-called “red notice” identifying El Omari as a convicted criminal in the United Arab Emirates (“UAE“). The district court (Sterling Johnson, Jr., J.) granted Interpol‘s motion to dismiss for lack of subject matter jurisdiction, holding that Interpol is a protected organization under the International Organizations Immunities Act (“IOIA“),
We conclude that Interpol qualifies as a “public international organization” within the meaning of
We therefore AFFIRM the order and judgment of the district court.
BACKGROUND
I. Interpol and the Headquarters Agreement
Interpol is an organization headquartered in Lyon, France. Although it is sometimes depicted in the popular culture as an operational law enforcement organization along the lines of the FBI, Interpol‘s primary function is simply to facilitate communications between the various domestic police agencies in its 194 participating countries. One way Interpol performs that function is by issuing color-coded notices at the request of participating countries. A red notice is, in effect, a notice that an identified person is wanted for prosecution or has been convicted by one of the participating countries. Interpol‘s procedures for issuing and maintaining
In 2008, Interpol negotiated a Headquarters Agreement with the Government of France to “define, on the territory of the French Republic, the status, privileges and immunities of . . . [Interpol,] which are necessary for the exercise of its functions and the achievement of its aims.” Joint App‘x 153. That agreement entered into force on September 4, 2009. Under Article 24 of the agreement, “any dispute between [Interpol] and a private party shall be settled in accordance with the Optional Rules for Arbitration between International Organizations and Private Parties of the Permanent Court of Arbitration” by a tribunal of “members appointed by the Secretary General of the Permanent Court of Arbitration.”2 Id. at 160. On March 17, 2016, the Government of
France promulgated Decree No. 2016-326 in the form of letters between Interpol and French government officials clarifying that the arbitration provision in Article 24 “does not apply . . . to disputes regarding the processing of data in Interpol‘s Information System – such as Interpol notices, diffusions or messages.” Id. at 166. That decree seemingly clarified that the Headquarters Agreement does not enable private parties to force Interpol into arbitration over its handling of red notices.
II. El Omari‘s Interactions With Interpol
According to the complaint he filed in this case, Oussama El Omari is a United States citizen who lives in North Carolina. He previously worked in the UAE for a member of one of that country‘s ruling families, Sheikh Faisal bin Saqr Al Qassimi. El Omari asserts that his trouble began after Sheikh Faisal fell out with his brother, Sheikh Saud bin Saqr Al Qasimi, the ruler of Ras Al Khaimah, one of the UAE‘s seven Emirates. See Zoarab v. Mukasey, 524 F.3d 777, 778 (6th Cir. 2008). As a result of that fraternal dispute, El Omari and his co-workers were terminated from their positions and wrongfully prosecuted on a variety of spurious charges before secretive tribunals.
When El Omari returned to the United States on July 31, 2016, he was temporarily detained by U.S. Customs officers – causing him to miss his connecting flight – and informed that he was wanted in the UAE. El Omari later learned that Interpol had issued a red notice for him at the request of the UAE following his February 8, 2015, conviction in absentia for embezzlement and abuse of position by the Criminal Court of Ras Al Khaimah.
El Omari asked Interpol to remove or modify the red notice, arguing that he had been wrongfully convicted for political reasons.3
El Omari responded by bringing this action against Interpol, alleging that its refusal to remove or otherwise alter the red notice constituted negligent infliction of emotional distress and violated his due process rights under the New York State Constitution. The district court dismissed the case for lack of subject matter jurisdiction, concluding that Interpol was immune from suit under the IOIA, and had not waived that immunity. See El Omari v. International Crim. Police Org. - Interpol, No. 19-cv-1457, 2021 WL 1924183, at *4-7 (E.D.N.Y. May 13, 2021). This appeal followed.
DISCUSSION
“We review de novo a district court‘s dismissal of a claim for lack of subject-matter jurisdiction.” Brzak v. United Nations, 597 F.3d 107, 110–11 (2d Cir. 2010), citing Flores v. S. Peru Copper Corp., 414 F.3d 233, 241 (2d Cir. 2003). “We also review de novo legal conclusions which grant or deny immunity.” Id. at 111, citing Aurelius Cap. Partners, LP v. Republic of Argentina, 584 F.3d 120, 129 (2d Cir. 2009).
I. Interpol Is Immune from Suit Under the IOIA.
The IOIA, first enacted in 1945, provides that “[i]nternational organizations . . . 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.”
[1] a public international organization [2] in which the United States participates pursuant to any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation for such participation, and [3] which shall have been designated by the President through appropriate Executive order as being entitled to enjoy the privileges, exemptions, and immunities provided in this subchapter.
The parties disagree, however, about whether Interpol is a “public international organization” within the meaning of
A. Public International Organizations Under the IOIA
“Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009) (internal quotations omitted). To determine that ordinary meaning, courts may look to contemporary dictionary definitions. See id. at 176. If the text of the statute “is not entirely clear, we then turn to the broader statutory context and its history.” Khalid v. Sessions, 904 F.3d 129, 132 (2d Cir. 2018).
Starting with the text, the district court found that the term “public” ordinarily means “of or provided by the state rather than an independent, commercial company.” El Omari, 2021 WL 1924183, at *5. That is generally consistent with dictionary definitions that existed at the time the IOIA was adopted. See, e.g., Public, THE OXFORD ENGLISH DICTIONARY (1933) (“Of or pertaining to the people as a whole; that belongs to, affects, or concerns the community or nation“). The term “public” was also defined as being the antithesis of “private.” See, e.g., Public, THE OXFORD ENGLISH DICTIONARY (1933) (“In general, and in most of the senses, the opposite of Private.“). During the same time period, “international” was defined as concerning relations between nations, and “organization” referred to a coordinated entity. See, e.g., International, THE OXFORD ENGLISH DICTIONARY (1933) (“Existing, constituted, or carried on between different nations; pertaining to the relations between nations.“); Organization, THE OXFORD ENGLISH DICTIONARY (1933) (“An organized structure, body, or being . . . .“). Those definitions suggest that a “public international organization” must be a coordinated product of states and governments acting to serve their public interest. Interpol thus meets the straightforward dictionary definition of a public international organization.
To the extent there is any ambiguity about the meaning of a “public international organization” under the IOIA, the legislative history confirms that a public international organization includes any organization whose membership is composed of governments. As explained in the House Report for the IOIA:
The term “international organization” as used in the bill and generally in this report is specifically limited to public international organizations, i. e., those which are composed of governments as members—and of these, to those of which the United States is a member and which shall have been designated by the President by Executive order as being entitled to enjoy the benefits of the bill.
H.R. REP. NO. 79-1203, at 1 (1945) (“House Report“) (emphasis added). In other words, the House Report explicitly defined “public international organizations” in the context of the IOIA as organizations
That understanding is further confirmed by its adoption by the executive branch. The first executive order designating Interpol as entitled to IOIA protections was issued after President Reagan sought and obtained legal advice from the Department of Justice‘s Office of Legal Counsel (“OLC“). OLC responded to President Reagan with a January 1983 memorandum concluding that Interpol qualified as a “public international organization” because it is “composed of governments as members.” Joint App‘x 566-68, quoting House Report. OLC‘s 1983 conclusion tracked the requirements contained in the State Department‘s 1946 guidance for applicants seeking designation under the IOIA. See 14 State Department Bulletin No. 348, at 348-49 (Mar. 3, 1946). The decision by the State Department and, in turn, OLC to adopt the definition from the House Report, and the decisions by successive Presidents to rely on that analysis, are entitled to considerable persuasive weight. See Gonzales v. Oregon, 546 U.S. 243, 268-69 (2006) (noting that the persuasiveness of the Executive Branch‘s interpretation of statutes outside of the rulemaking context depends, inter alia, on “the thoroughness evident in its consideration” and “its consistency with earlier and later pronouncements“).
On appeal, El Omari proposes several alternative criteria that he argues should be required to qualify an entity as a “public international organization” within the meaning of the IOIA. First, he argues that Interpol is not “public” because it is not a government actor. Second, he argues that “public” is a term of art within United States tax law, and thus Interpol cannot be “public” because it would not qualify as tax exempt public charity under
There is no persuasive basis, textual or otherwise, for limiting a “public international organization” under
We also disagree that Jam limits “public international organizations” to bodies that have been formed through international treaties. In Jam, the Supreme Court held that the IOIA “grants international organizations the same immunity from suit as is enjoyed by foreign governments at any given time.” 139 S.Ct. at 772 (internal quotations omitted). As part of its discussion, the Supreme Court identified the United Nations, the International Monetary Fund, the World Bank, and the World Health Organization as examples of organizations entitled to immunity under the IOIA, and noted that the scope of that immunity can be curtailed by either the terms of the organization‘s founding charter or by the President acting pursuant to the authority delegated by the IOIA to withhold or withdraw the immunity of otherwise qualified public international organizations. See id. at 764-765. The Jam opinion did not address the proper interpretation of “public international organizations” under
Moreover, the text of the IOIA itself refutes El Omari‘s contention that a “public organization” must be one created by treaty. “It is a cardinal principle of statutory
construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal citations and quotations omitted). The IOIA explicitly extends its protections to otherwise eligible organizations “in which the United States participates pursuant to any treaty or under the authority of any Act of Congress authorizing such participation.”
B. Interpol Qualifies as a Public International Organization.
We next turn to whether Interpol is properly categorized as a “public international organization” under that definition, and is thus eligible for designation by the President to receive the privileges and immunities conferred by the IOIA. El Omari‘s complaint
alleged that Interpol is composed of “member countries.” Joint App‘x 9. Interpol seemingly agrees with that characterization, describing itself throughout its brief as being composed of “member countries.” See, e.g., Appellee‘s Br. 1. More technically, however, Article 4 of Interpol‘s Constitution specifies that membership in Interpol is conferred on government agencies rather than on the nations they represent. Article 4 provides that participating countries “may delegate as a Member to the Organization any official police body whose functions come within the framework of activities of the Organization.” Joint App‘x 93 (emphasis added). Therefore, membership in Interpol formally belongs to the delegated “official police body” of each participating country.7
Interpol‘s extending membership to police organizations, combined with the fact that Interpol was not formed by international treaty, has led some to question whether Interpol is truly an international organization.8 But to qualify as a “public international
organization” under the IOIA, it is sufficient that membership in Interpol is restricted to official government actors whose involvement is controlled by the particular participating nations. The political branches may authorize a government-controlled agency to represent the interests of the United States
“represent[]” the countries to which Interpol‘s Constitution applies). Because Interpol is functionally restricted to governments as members, acting through their chosen delegates, we conclude that it qualifies as a “public international organization” within the meaning of
II. Interpol Has Not Waived Its Immunity.
The IOIA provides immunity to public international organizations designated by the President “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.”
At the outset, we note that the Headquarters Agreement is a contract between Interpol and the Government of France that by its express terms is designed to define the “status, privileges and immunities” afforded to Interpol ”on the territory of the French Republic.” Headquarters Agreement, Preamble, Joint App‘x 153 (emphasis added). There is no indication that either Interpol or the Government of France had any thought, in agreeing upon the terms on which Interpol would be subject to disputes arising from its day-to-day business on French soil, as to the rights, under New York law, of American citizens affected by Interpol‘s dissemination of information in the United States about criminal cases pending in the UAE.
Moreover, even if we were to make the extraordinary assumption that the dispute resolution provisions of the Headquarters Agreement had some application to this case, those provisions do not waive any immunity Interpol might have from suit in the courts of France, let alone of the United States. Article 24 of the Headquarters Agreement, which El Omari points to as a possible immunity waiver, provides a right to settle disputes “in accordance with the Optional Rules for Arbitration between International Organizations and Private Parties of the Permanent Court of Arbitration by a tribunal composed either of one or of three members appointed by the Secretary General of the Permanent Court of Arbitration.” Joint App‘x 160. At most, that provision creates only a right to arbitration. By comparison, other portions of the Headquarters Agreement suggest, if anything, that Interpol is immune to most civil suits within the French legal system. See, e.g., Headquarters Agreement Art. 5, Joint App‘x 154 (Interpol “shall enjoy immunity from legal process” except in certain enumerated cases). On no reasonable reading can the Headquarters Agreement be understood
Nor can we accept El Omari‘s argument that the Headquarters Agreement should be understood as an implicit immunity waiver. In the context of sovereign immunity under the Foreign Sovereign Immunities Act (“FSIA“),
forum, or where another nation has stipulated that American law should govern any contractual disputes.” Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 377 (7th Cir. 1985) (internal citations omitted). But cf. Cargill Int‘l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1017 (2d Cir. 1993) (“[A]n agreement to arbitrate in a foreign country, without more, ought not to operate as a waiver of sovereign immunity in United States courts, especially in favor of a non-party to the agreement.” ). El Omari urges that, in view of Jam, similar restrictions would apply to international organizations under the IOIA. See 139 S. Ct. at 769 (“The IOIA . . . link[s] the law of international organization immunity to the law of foreign sovereign immunity, so that the one develops in tandem with the other.“). But even assuming that similar standards apply in the FSIA and IOIA contexts, the Headquarters Agreement would not function as an implicit immunity waiver. Unlike the contracts discussed in Frolova as potentially creating such a waiver, the Headquarters Agreement specifies a particular forum for the arbitration, and a specialized set of rules to govern the arbitration that differ from general American law. See 761 F.2d at 377. If anything, the Headquarters Agreement is more akin to the sorts of agreements to arbitrate in foreign countries that, without more, do not generally act as immunity waivers to permit suit in federal district court. See Cargill, 991 F.2d at 1017.
For those reasons, even assuming that the right to arbitration in the Headquarters Agreement applied to the present suit, that right to arbitration would not act as either an explicit or implicit immunity wavier permitting El Omari to bring the present suit against Interpol in a federal district court.
Finally, we note that, before the present dispute between El Omari and Interpol arose, the French government promulgated Decree No. 2016-326, expressly accepting Interpol‘s understanding that the arbitration provision in Article 24 “does not apply . . . to disputes regarding the processing of data in Interpol‘s Information System – such as Interpol notices, diffusions or messages.” Joint App‘x 166. Thus, the parties to the Headquarters Agreement themselves – the Government of France and Interpol acting through its Secretary General – have made clear that the provisions on which El Omari relies for his contention that Interpol has waived immunity do not permit private parties to force Interpol into arbitration, still less into any court, over its handling of red notices. Therefore, even if the Headquarters Agreement would have somehow acted as an immunity waiver in the past, any such hypothetical waiver does not apply to El Omari‘s present suit.
For all of the above reasons, El Omari‘s argument that Interpol has waived the protections of the IOIA is without merit.
III. Jurisdictional Discovery
Finally, El Omari argues that the district court erred by denying him leave to conduct jurisdictional discovery prior to dismissal. Specifically, El Omari sought a variety of documents intended to show
from suit.” Appellant‘s Br. 20. The district court tacitly denied El Omari‘s request by granting Interpol‘s motion to dismiss for want of subject matter jurisdiction. See El Omari, 2021 WL 1924183, at *4.
“We review a district court‘s denial of jurisdictional discovery for abuse of discretion, always mindful that a district court has wide latitude to determine the scope of discovery.” Arch Trading Corp. v. Republic of Ecuador, 839 F.3d 193, 206 (2d Cir. 2016) (internal citations and quotations omitted). “When sovereign immunity is at issue, discovery is warranted ‘only to verify allegations of specific facts crucial to an immunity determination.‘” Id. at 207, citing EM Ltd. v. Republic of Argentina, 473 F.3d 463, 486 (2d Cir. 2007). A similar standard applies to immunity under the IOIA because it “develops in tandem” with the law of foreign sovereign immunity. Jam, 139 S. Ct. at 769.
In the present case, the information sought by El Omari has no bearing on the immunity determination. Interpol‘s non-profit status under the laws of France sheds no light on whether Interpol qualifies as a “public international organization” entitled to the protections conferred by the IOIA.
germane to the immunity determination, it was not an abuse of discretion for the district court to deny the request for jurisdictional discovery. See Arch Trading, 839 F.3d at 207.
CONCLUSION
To summarize, we conclude that:
- The term “public international organizations” as used in
22 U.S.C. § 288 includes any international organization that is composed of governments as its members, regardless of whether it has been formed by international treaty. - Interpol qualifies as a “public international organization” for the purposes of
22 U.S.C. § 288 because its members are official government actors whose involvement is subject to control by participating nations. - The Headquarters Agreement between Interpol and the Government of France does not constitute an immunity waiver that would permit the present suit in a United States district court.
- The district court did not abuse its discretion by denying El Omari‘s request for jurisdictional discovery prior to dismissal.
Accordingly, the judgment of the district court is AFFIRMED.