Matos Rodriguez v. Pan American Health OrganizationMatos Rodriguez v. Pan American Health Organization
MEMORANDUM OPINION
Most public attention on human trafficking and forced labor understandably focuses on destitute victims who live on the margins of society. In this case, however, those allegedly taken advantage of were Cuban physicians, who assert that their government, through threats and intimidation, coerced them into providing medical services in Brazil, restricted their movement and contacts while abroad, and withheld and eventually confiscated the lion‘s share of their wages. Plaintiffs, four Cuban physicians now living in the United States, claim that they were victims of the Mais Medicos program, a medical mission operated by the Brazilian government in conjunction with Cuba, from 2013 to 2017. Plaintiffs, however, do not name Cuba or Brazil as defendants in this lawsuit. Instead, they bring this putative class action against the Pan American Health Organization, an international body affiliated with the World Health Organization and tasked with advancing public health in the Western Hemisphere. Plaintiffs charge that PAHO provided, or knowingly benefited from others having provided, their forced labor, and they seek damages under the Trafficking Victims Protection Act and the Racketeer Influenced and Corrupt Organizations Act.
PAHO now moves to dismiss, principally contending that it is immune from suit under the
The Court ultimately concludes that it has jurisdiction over PAHO as to several, though not all, of Plaintiffs’ claims against it. The Court also rejects PAHO‘s alternative request that this suit be dismissed for reasons of international comity and its argument that it has not been properly served. The case will therefore proceed.
I. Background
A. Factual Background
As this Opinion mainly concerns PAHO‘s assertion of immunity, the Court need set out only briefly the relevant facts as alleged by Plaintiffs. (There is no occasion to assess the veracity of these factual assertions, which the Court must accept as true at this stage.) Plaintiffs claim that they were recruited into the Mais Medicos program “under threat of harsh social, economic, political personal, reputational, and legal repercussions” from the Cuban regime and that they were not told where they would be sent or what work they would perform. See ECF No. 50 (Second Amended Complaint), ¶ 2. As to PAHO in particular, Plaintiffs’ allegations center on its role in facilitating Mais Medicos as an essential intermediary between the Cuban and Brazilian governments.
Beginning in 2012, officials from both countries began discussing the possibility of Brazil‘s joining the many countries to which Cuba “export[s] . . . medical services.” Id., ¶ 40; see id., ¶¶ 41–47. Per multiple State Department reports cited in the Complaint, “medical missions” comprised of Cuban doctors “constitute a significant source of Cuban government income,” and “[s]ome participants in [those] missions as well as other sources allege that Cuban officials force or coerce participation in the program.” Id., ¶ 30. As relevant here, Cuban officials proposed sending six thousand specialists in internal medicine to Brazil. Id., ¶ 41. As discussions wore on, it became clear to Brazilian officials that any arrangement between the two countries could not be implemented as an “intergovernmental agreement” because, if it were, it would “have to be submitted to [Brazil‘s] Congress” as well as other government ministries and “would generate controversy.” Id., ¶ 45 (quoting remarks of Brazil‘s ambassador to Cuba). The need to arrive at a “legal framework” for the program that would avoid a “bilateral agreement,” “which would require approval by the Brazilian Congress,” led Brazilian officials to “present[] [to Cuba] the proposal to use the Pan American Health Organization as an intermediary, characterizing the contracting of services as cooperation in the medical field.” Id., ¶ 47 (quoting December 2012 diplomatic cable).
PAHO‘s alleged conduct in that middleman role falls into two main buckets. First, and Plaintiffs’ main focus, PAHO agreed to serve as a financial intermediary between the two countries. Rather than having the Brazilian government pay Cuba directly as compensation for the physicians, it would pay PAHO, which would then pay the Cuban regime. Id., ¶¶ 18, 38, 50–51. This role fulfilled an earlier agreement between PAHO and Cuba, in which PAHO had endeavored to help “triangulat[e] . . . health care cooperation and the moving of resources.” Id., ¶¶ 19(c), 49. Formalizing its go-between status, PAHO entered into several agreements with the Brazilian government and a Cuban government-affiliated firm, which “called for Brazil to make payment to PAHO‘s Citibank account in Washington, D.C.” Id., ¶ 18. “Pursuant to these agreements, PAHO collected hundreds
Second, Plaintiffs allege that PAHO played an important role in “enforc[ing]” the terms of the Mais Medico program and “cover[ing] up” its objectionable elements. Id., ¶ 38. The SAC repeatedly asserts in general terms that, true to that role, PAHO helped “organize[], administer[], and enforce[]” Mais Medicos. Id., ¶ 3; see also id., ¶¶ 15, 18, 57, 86. In addition, Plaintiffs claim that PAHO officials proposed shaping the relevant agreements to hide the fact that Cuba was also sending “consultants” (read: government minders) along with its physicians. Id., ¶ 52; see also id., ¶ 85. PAHO also allegedly hired Cuban intelligence officers to provide on-the-ground surveillance and help ensure doctors’ compliance with their harsh employment conditions. Id., ¶¶ 5, 86, 100, 113. Among those conditions, Plaintiffs were not allowed their passports and thus could not travel; their day-to-day movements were limited and subject to pre-approval by their minders; their social-media presences were monitored; they were paid a relative pittance; and they were required to propagandize for Cuba to their patients. Id., ¶¶ 27, 98, 113. PAHO‘s pressure campaign was not limited to the Cuban doctors themselves; one senior PAHO official allegedly “pressured the Brazilian Attorney General to intervene and shut down, or divert,” cases brought in the Brazilian court system by Cuban doctors. Id., ¶ 19(e).
B. Procedural History
Plaintiffs filed this action in late 2018 in the U.S. District Court for the Southern District of Florida. See ECF No. 1 (Complaint). After they filed an amended complaint, see ECF No. 9, PAHO moved to transfer the case to this district on the ground that it is the only appropriate venue under the
C. Plaintiffs’ Claims
Before assessing these arguments, the Court pauses to note an important wrinkle: while the several alleged TVPA violations are all contained within “Count I” of the operative Complaint, it is clear that Plaintiffs have really brought three separate TVPA claims, corresponding with
Plaintiffs first allege that PAHO “violated . . .
Each of these provisions proscribes distinct conduct — providing or obtaining forced labor under 1589(a), knowingly benefiting from participation in a venture using forced labor under 1589(b), and trafficking under 1590 — and Plaintiffs have set out each violation in “[i]ndividual numbered paragraphs within the complaint,” making it “unmistakabl[e] that plaintiffs seek relief on these” separate grounds. Save Our Sch. v. D.C. Bd. of Educ., No. 04-1500, 2005 WL 8178067, at *2 (D.D.C. Jan. 12, 2005). Consistent with that conclusion, courts appear to treat violations of sections 1589(a), 1589(b), and 1590 as separate criminal offenses and separate bases for civil recovery. See, e.g., Gilbert, 423 F. Supp. 3d at 1133 (differentiating 1589(a) and 1590); Adia v. Grandeur Mgmt., Inc., 933 F.3d 89, 94 (2d Cir. 2019) (same); United States v. Paz-Rodriguez, No. 20-82, 2020 WL 5607821, at *1 (N.D. Okla. Sept. 18, 2020) (differentiating 1589(a) and 1589(b)); Paguirigan v. Prompt Nursing Employment Agency LLC, No. 17-1302, 2019 WL 4647648, at *19 (E.D.N.Y. Sept. 24, 2019) (differentiating all three). The Court will therefore construe the Second Amended Complaint as asserting three distinct TVPA claims and within the Analysis below consider PAHO‘s invocation of immunity separately for each.
The bulk of the Court‘s examination concerns immunity, but it will thereafter address international comity, service of process, and Plaintiffs’ request for jurisdictional discovery.
A. Immunity
PAHO argues first and foremost that Plaintiffs’ claims must be dismissed for lack of subject-matter jurisdiction because it is immune from suit. It expressly “contests only the legal sufficiency of the plaintiff‘s jurisdictional claims,” and, as a result, the applicable standard “is akin to that applied under Rule 12(b)(6).” EIG Energy Fund XIV, L.P. v. Petroleo Brasileiro, S.A., 894 F.3d 339, 345 (D.C. Cir. 2018). Now is therefore not the time for “a final determination whether jurisdiction exists . . .; nor [does the Court] mak[e] any final factual determinations.” Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 440 n.3 (D.C. Cir. 1990). Instead, it must “treat the complaint‘s factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.‘” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal citation omitted). The Court need not accept as true, however, “a legal conclusion couched as a factual allegation,” or an inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm‘n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
PAHO claims immunity from suit principally under the
1. IOIA Immunity
In considering the
a. Commercial Activity
The
As the text of the statute indicates, the Court‘s first task when assessing a specific claim is to “identify the particular conduct on which the action is ‘based,‘” which requires determining the “foundation” or “gravamen” of the claim by “zero[ing] in on [its] core.” OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390, 395–96 (2015); see also id. at 397 n.2 (suggesting gravamen may be different for different claims); Devengoechea v. Bolivarian Republic of Venezuela, 889 F.3d 1213, 1223 (11th Cir. 2018) (arguing that Sachs “expressly recognized that the gravamina of different claims” may be different conduct). Once the act or acts forming a claim‘s “essentials” are identified, Sachs, 136 S. Ct. at 397, the question becomes whether that conduct amounts to “commercial activity” or is “in connection with a commercial activity,”
Ascertaining whether the conduct at issue amounts to commercial activity is more difficult, especially in the context of an international organization. As applied to foreign sovereigns, courts have long deployed an intuitive distinction: “[A] state engages in commercial activity . . . where it exercises only those powers that can also be exercised by private citizens, as distinct from those powers peculiar to sovereigns.” Saudi Arabia v. Nelson, 507 U.S. 349, 360 (1993) (internal quotation omitted). “Put differently, a foreign state engages in commercial activity . . . only where it acts ‘in the manner of a private player within’ the market.” Id. (quoting Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992)). Crucially, the
As the district court in Jam recognized on remand from the Supreme Court, applying this test to “international organizations . . . is fraught with difficulty.” Jam v. Int‘l Fin. Corp., No. 15-612, 2020 WL 4933618, at *8 (D.D.C. Aug. 24, 2020). The core doctrinal dichotomy between commercial and noncommercial activity — acting as a sovereign versus as a market participant — cannot be easily applied to an entity like PAHO, which is, of course, not a nation state. It is hard to imagine an action PAHO could take that would be of a type “exclusively reserved for the sovereign.” Ghawanmeh v. Islamic Saudi Acad., 672 F. Supp. 2d 3, 9 (D.D.C. 2009).
Aware of this problem, PAHO suggests that the Court should analogize its way to a different dichotomy for international organizations: “between conduct that falls within an international organization‘s mission,” which would be non-commercial
PAHO suggests that, the old rules notwithstanding, Jam foreshadowed a new approach for international organizations. In that case, which was brought against an international development bank known as the International Finance Corporation, the Supreme Court suggested that “the lending activity of at least some development banks, such as those that make conditional loans to governments, may not qualify as ‘commercial’ under the
Courts must therefore apply the existing test as best they can to all international organizations: if the conduct alleged is “the sort of action” “typically performed by participants in the market,” it is commercial for purposes of the
In any event, many international organizations are not banks or other institutions whose activities are overwhelmingly commercial. One can imagine a number of actions that PAHO, for example, might take that could hypothetically form the basis of a lawsuit against it but would not qualify as “engag[ing] in trade and traffic or commerce,” Weltover, 504 U.S. at 614 — e.g., negotiating a multilateral agreement or providing vaccinations to poor, remote communities. Here, however, it is alleged that PAHO acted quite like a bank insofar as it performed the role of financial intermediary between Cuba and Brazil. Those actions suffice to bring one of Plaintiffs’ claims — its second claim: that PAHO knowingly benefited from its participation in the Mais Medicos venture — within the commercial-activity exception. The Court begins by discussing that claim, as it takes up the bulk of the analysis in this section, before looking at the other two.
i. TVPA Claim 2
Plaintiffs’ claim under section 1589(b) of the TVPA is their most straightforward one: according to the operative Complaint, the Mais Medicos–related agreements into which PAHO entered “called for Brazil to make payment to PAHO‘s Citibank account in Washington, D.C.,” SAC, ¶ 18, and for PAHO to “transfer [those] hundreds of millions of dollars to the Government of Cuba.” Id., ¶ 51. Pursuant to those agreements, PAHO acted as a conduit for over $1.5 billion and retained 5%, or $75 million, for itself “in fees.” Id., ¶ 18; see also id., ¶¶ 87, 103 (alleging that money kept by PAHO was not all for administrative expenses of program). PAHO acted in this role, per the Complaint, because for domestic political reasons the Brazilian government did not want to directly compensate the Cuban government (or its fronts) for the provision of its doctors. Id., ¶¶ 45, 47. Plaintiffs thus allege that PAHO knew that the Cuban component of the Mais Medicos program was “engaged in the providing or obtaining” of forced labor and received over $75 million for its “participati[on] in [that] venture.”
The gravamen of this claim, accordingly, is PAHO‘s moving of money, for a fee, between Cuba and Brazil. As Plaintiffs argue, even if PAHO had “played no other role in Cuba‘s trafficking scheme” other than as a financial intermediary, “its receipt of a financial benefit from that scheme . . . would still” amount to conduct “for which Congress has afforded Plaintiffs a private right of action.” ECF No. 58 (Opp.) at 20. PAHO‘s alleged behavior as a knowing money middleman is therefore at “the core” of Plaintiffs’ second TVPA claim — it is conduct that, “if proven, would entitle [Plaintiffs] to relief under [their] theory of the case.” Sachs, 136 S. Ct. at 396 (quoting Nelson, 507 U.S. at 357).
The Court concludes that such conduct qualifies as commercial activity under the
The final requirement — viz., that PAHO‘s conduct amount to “commercial activity carried on in the United States” — is easily met here. According to the Complaint, PAHO carried out its agreed-to role as financial intermediary using its Citibank account in Washington, D.C. See SAC, ¶¶ 18, 50–51, 54. Plaintiffs also allege that the Director-General of PAHO, based out of PAHO‘s headquarters in this city, approved the agreements committing PAHO to its role as intermediary. Id., ¶¶ 51, 54. That is more than enough to establish that Defendant‘s conduct had “substantial contact with the United States” was therefore “carried on” here under the statute. See
Instead, it contends that the above analysis goes wrong at the threshold step of identifying the gravamen. See PAHO MTD at 29–30; PAHO Reply at 13–14, 17–18. As PAHO sees it, the core of Plaintiffs’ claim is not any injury traceable to PAHO‘s financial activities, but rather is “the alleged forced labor itself.” PAHO Reply at 13. Plaintiffs’ true gripe, PAHO posits, is therefore with Cuba, the party whose conduct most directly injured them. Id. at 13–14. PAHO insists that Plaintiffs have engaged in an impermissible “recast[ing]” of their true claim by neglecting to name Cuba as a defendant and instead coming after PAHO, id. at 13, even though “[t]he gravamen of their suit is wrongful conduct by other entities outside the United States, not by PAHO.” Id. at 18 (emphasis removed).
The Court cannot concur. Plaintiffs’ knowing-beneficiary claim against PAHO does not rely on a “feint of language,” Sachs, 577 U.S. at 36 (quoting Nelson, 507 U.S. at 363), repackaging the same essential conduct by the same defendant as a new claim under a related but technically distinct legal theory. Instead, Plaintiffs’ 1589(b) claim turns on separate and separately wrongful conduct, distinct from any acts that could form the basis of a claim against Cuba or Brazil, by a defendant other than Cuba or Brazil — to wit, PAHO‘s procurement of a financial benefit from knowing participation in the allegedly exploitative Mais Medicos program. Although PAHO is correct that there is nothing inherently “wrongful” (at least under the TVPA and RICO) about acting as a financial middleman between Cuba and Brazil, it is not true that such conduct became “wrongful” only as a result of Cuba‘s separate malfeasance. Under Plaintiffs’ theory of the case, PAHO‘s receipt of a benefit from the Mais Medicos program turned from lawful to unlawful because of PAHO itself‘s alleged knowledge that the program it was benefiting from was using forced labor. The conduct at the heart of Plaintiffs’ entitlement to relief is thus PAHO‘s knowing participation, not the actions of others involved, in Mais Medicos.
PAHO rejoins that under Sachs and Nelson, the gravamen must be the conduct that “actually injured” Plaintiffs, and that it was their conscription at the hands of Cuba, not PAHO‘s alleged financial role in the venture, that directly harmed the four physicians. See Sachs, 136 S. Ct. at 396. Those cases, however, do not establish a “bright-line rule that the conduct that ‘actually injured’ plaintiffs is always the gravamen.” Jam, 2020 WL 4933618, at *2 (calling that view “incorrect“); see also Sachs, 136 S. Ct. at 397 n.2 (expressly disclaiming any categorical rule). Rather, they represent a typical application of the
Congress, moreover, expressed in the TVPA its judgment that, as a matter of law, a knowing beneficiary of and participant in a forced-labor scheme injures the victim of that scheme just as much as any other participant in that venture. See
To sum up, Plaintiffs’ second claim against PAHO under section 1589(b) of the TVPA, which centers on Defendant‘s alleged role as financial intermediary between Cuba and Brazil, is “based upon a commercial activity carried on in the United States by” PAHO. See
ii. TVPA Claim 1
Clearly demarcating Plaintiffs’ three separate TVPA claims in Count I pays dividends here, since their other two do not fall within the commercial-activity exception. Their first alleges that PAHO violated section 1589(a) of the Act, which makes it unlawful to “knowingly provide[] or obtain[] the labor or services of a person” by “means of force,” “physical restraint,” “serious harm,” “abuse of law or legal process,” or any threats thereof, or by “means of any scheme, plan, or pattern intended to cause the person to believe that” he would face such reprisals. See
The operative Complaint does not make clear exactly how PAHO ran afoul of this provision; for the most part, it simply repeats the statutory text. See SAC, ¶ 132 (“PAHO[] . . . knowingly provided and obtained the labor or services of Plaintiffs by threats of force, physical restraint, [etc.].“). The basic idea seems to be that, as the SAC repeatedly states in general terms, PAHO helped “organize[], administer[], and enforce[]” the Mais Medicos program. Id., ¶ 3; see also id., ¶¶ 15, 18, 57, 86. In terms of specifics, there are three main allegations that could support Plaintiffs’ claim (to be clear, the Court offers no opinion as to whether these allegations do state a claim for relief): (1) PAHO signed an agreement between Brazil and a Cuban front firm promising “to enforce the obligations of Cuban doctors to” those entities, id., ¶ 18; (2) PAHO contracted with or
Because the fit between Plaintiffs’ specific allegations and their claim that PAHO “provided or obtained” forced labor is not exactly snug, the Court finds it somewhat difficult to ascertain the gravamen of their claim under section 1589(a). Ultimately, though, it need not get hung up on that step. Any way the gravamen of this claim is conceived of, it is not based upon commercial activity.
Begin by focusing only on the core allegation, regardless of the specific predicate facts: that PAHO participated in forcing Plaintiffs to work as part of the Mais Medicos program. Although one might initially think that such conduct could qualify as commercial activity, the
caselaw is unanimous the other way. See Lubian v. Republic of Cuba, 440 F. App‘x 866, 868 (11th Cir. 2011) (“Plaintiffs’ underlying claims [against Cuba for medical mission in Venezuela] for false imprisonment and forced labor . . . are not commercial in nature.“); Hwang Geum Joo v. Japan, 172 F. Supp. 2d 52, 64 (D.D.C. 2001) (“Japan‘s operation of ‘comfort stations’ [during World War II] was not a commercial activity within the meaning of the
Looking to Plaintiffs’ specific allegations, moreover, does not change this result, as none of the relevant conduct PAHO is accused of amounts to commercial activity evaluated on its own. First, Plaintiffs assert that the organization committed by contract to “enforce the obligations of Cuban doctors to [a Cuban front firm] and to Brazil.” SAC, ¶ 18. It is not clear what those obligations were, although presumably they must have included working under certain conditions that amount to force, physical restraint, threats thereof, or the like; if they did not, Plaintiffs’
Entering into such a contract is not a commercial activity for the same reasons
The two other categories of PAHO‘s relevant conduct are similarly not commercial activity under the caselaw. For the reasons just provided, its alleged hiring of Cuban intelligence officials to spy on and intimidate Cuban doctors in Brazil does not fit the bill. See id. at 141. And, as for threats directed at public officials, Plaintiffs make no argument that they qualify as commercial activity either. All told, then, Plaintiffs’ claim under
iii. TVPA Claim 3
Little more need be added about Plaintiffs’ third TVPA claim, which alleges that PAHO violated
b. Expropriation Exception
Given its above conclusions, the Court need not further examine Plaintiffs’ second claim under the
Plaintiffs argue in their brief that PAHO “took” their property — and is thus subject to suit under
Plaintiffs’ first and third TVPA claims fall outside the expropriation exception for two reasons. First, neither of the two claims — which allege, respectively, that PAHO provided or obtained their labor by means or threats of force and that PAHO trafficked them — puts “rights in property . . . in issue.”
Plaintiffs’ TVPA claims do not appear to meet that test as it has been applied, as they do not sound in “conversion [or] unjust enrichment” or some other direct entitlement to property. Id. at 141; cf. Philipp v. Fed. Republic of Germany, 894 F.3d 406, 410, 414 (D.C. Cir. 2018) (allowing “replevin, conversion, unjust enrichment, and bailment” claims to proceed under expropriation exception), cert. granted, No. 19-351, 2020 WL 3578677 (U.S. July 2, 2020); De Csepel v. Republic of Hungary, 859 F.3d 1094, 1102 (D.C. Cir. 2017) (bailment, conversion, and unjust-enrichment claims). According to the Complaint itself, Plaintiffs’ employment contracts expressly dictated that they would receive only $400 a month with another $600 deposited in a Cuban bank account. See SAC, ¶ 81. Plaintiffs’ claims thus raise no question as to who rightfully owns any of the other $9,000 per month transferred to Cuba or kept by PAHO as its fee, nor do they provide any basis to conclude that the $9,000 was Plaintiffs’ property at any point. See id., ¶¶ 16, 27(e). And, as for the $600 per month allegedly confiscated by Cuba upon Plaintiffs’ defection, there is no allegation or plausible inference that PAHO misappropriated those funds. Plaintiffs’ claims instead assert an entitlement to fair compensation for the labor that they allege they were forced to provide; in essence, they believe that the property interests that are “in issue” are their interests in control over their labor. While that theory is perhaps interesting grist for a law-school (or philosophy) seminar, Plaintiffs do not offer, and the Court is not aware of, any precedent holding that such a claim puts “rights in property . . . in issue” within the meaning of the expropriation exception.
Plaintiffs point out that they “seek, among other things, the portion of their compensation that PAHO unlawfully retained and transferred” as damages. See
Second, even assuming Plaintiffs’ TVPA claims do put rights in property in issue, the Court agrees with PAHO that such property has not been “taken in violation of international law” here. Those familiar with constitutional or international law should have a strong sense of the meaning of that phrase: improperly confiscated by a government. See Taking, Black‘s Law Dictionary (11th ed. 2019) (defining “taking,” in the public-law context, to mean “[t]he government‘s actual or effective acquisition of private property“). Indeed, that is the interpretation of
The
Plaintiffs point out that the House Report, after explaining that the phrase “taken in violation of international law” includes nationalization and expropriation, adds that it “would also include takings which are arbitrary or discriminatory in nature.” H.R. Rep. No. 94-1487, at 20. They contend that this additional sentence confirms that “other forms of ‘taking‘” beyond those by a government actor are covered by
Finally, although no party directly raises this argument, the Court does not believe that Jam requires it to interpret the expropriation exception as covering “takings” by international organizations. It essentially reads the statutory phrase “taken in violation of international law” as equivalent to “taken by a foreign state acting under color of official authority in violation of international law,” and if
* * *
To summarize: Plaintiffs’ claim under
A brief word is also required on Plaintiffs’ RICO claim. It alleges that PAHO‘s “violations of
2. Treaty Immunity
As the Court has found PAHO immune from two of Plaintiffs’ TVPA (and related RICO) claims, it need consider them no further. Because any source of immunity protects Defendant, the Court next considers whether PAHO is immune from Plaintiffs’
a. U.N. Charter
Article 105 of the U.N. Charter states that “[t]he Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.” U.N. Charter art. 105, ¶ 1. PAHO maintains that it is part of “the Organization” and further insists that the “necessary” immunities it “shall enjoy” include absolute immunity from suit, which would obviously apply to bar Plaintiffs’ claims here. The Court need not address either of those issues, however, for PAHO‘s argument fails at an antecedent step: this part of the U.N. Charter is not a self-executing treaty and thus does not create domestic federal law that this Court is bound, or indeed able, to enforce. As this issue is one of first impression — recall that until Jam, PAHO was thought to be absolutely immune under the
The Supreme Court has long recognized and applied the “distinction between treaties that automatically have effect as domestic law, and those that — while they constitute international law commitments — do not by themselves function as binding federal law.” Medellin v. Texas, 552 U.S. 491, 504 (2008). The former are known as “self-executing” treaties, the latter as “non-self-executing.” A non-self-executing treaty amounts to no more than an international-law commitment that “depends
Into which category a treaty falls is a question of treaty interpretation. Id. at 514 (court has “obligation to interpret treaty provisions to determine whether they are self-executing“). That inquiry proceeds on a provision-by-provision basis, as “[a] treaty need not be wholly self-executing” or wholly non-self-executing. United States v. Postal, 589 F.2d 862, 884 n.35 (5th Cir. 1979); Restatement (Fourth) of Foreign Relations Law § 310 cmt. b (“inquiry” is “an assessment of whether the particular treaty provision at issue is self-executing“). The key question is whether the relevant treaty “terms reflect a determination by the President who negotiated it and the Senate that confirmed it that the treaty has domestic effect.” Medellin, 552 U.S. at 521; see also id. at 505 (whether “the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on those terms“). That inquiry “begins with [the treaty‘s] text” but also should account for “the negotiation and drafting history of the treaty,” “the understanding of the Executive Branch when the President agreed to the [treaty],” and “‘the postratification understanding’ of signatory nations.” Id. at 506-07, 510 (quoting Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226 (1996)).
PAHO argues, as it must, that article 105 of the U.N. Charter is self-executing. Focusing almost exclusively on the text of the article, PAHO contends that Medellin, the touchstone case in this area, compels that conclusion. In that case, the argument goes, the Supreme Court found a treaty non-self-executing because it did “not provide that the United States ‘shall’ or ‘must’ comply” with the relevant obligation, but rather stated that the signatory nations “undertake[] to comply.” Medellin, 552 U.S. at 508. The treaty was not, accordingly, a “directive to domestic courts” to enforce the obligation immediately, but rather a “call upon governments” to do so in the future. Id. (citation omitted). PAHO argues that under Medellin, article 105 falls on the self-executing side of the line because it states, directly and in “mandatory language,” PAHO Reply at 3, that PAHO “shall enjoy in the territory of [the United States] such privileges and immunities as are necessary for the fulfilment of its purposes.” U.N. Charter art. 105, ¶ 1 (emphasis added).
While the bare text does cut in PAHO‘s favor, it cannot bear the weight Defendant places on it. For one thing, PAHO treats the word “shall” as a sufficient condition for a treaty to be self-executing, whereas courts usually suggest that such mandatory language is a necessary, but not sufficient, condition. Put another way, it is difficult for a treaty to be regarded as self-executing without language like “shall” or “must,” but the presence
Under PAHO‘s strict “shall is enough” approach, furthermore, there would be no need to look at the other interpretive tools that courts, including the Medellin Court, have consistently relied upon in the self-executing analysis. See 552 U.S. at 507, 510; Brzak v. United Nations, 597 F.3d 107, 111 (2d Cir. 2010) (“In determining whether a treaty is self-executing, we look to the text, the negotiation and drafting history, and the postratification understanding of the signatory nations.“). As it happens, each of those sources indicates that article 105 was not intended to have “immediate legal effect in domestic courts.” Medellin, 552 U.S. at 508.
To begin, paragraph one of article 105 must be read in conjunction with paragraph three, which provides that “[t]he General Assembly may make recommendations” or “propose conventions to the Members of the United Nations” “with a view to determining the details of the application of paragraph[] 1.” U.N. Charter art. 105, ¶ 3. In context, then, paragraph one “anticipates future action . . . . to implement or honor the treaty obligation,” a hallmark of a non-self-executing provision. Republic of Marshall Islands v. United States, 865 F.3d 1187, 1194 (9th Cir. 2017). The open-ended language of paragraph one — which refers to immunity “necessary for the fulfilment of [PAHO‘s] purposes” — supports that reading. Where a treaty “le[aves] to the signatory‘s discretion to determine what measures are ‘appropriate,‘” or here, “necessary,” that is usually an indication that the “provision has no immediate legal effect,” Doe, 763 F.3d at 256, as it is “addresse[d] . . . to the political, not the judicial department.” Foster, 27 U.S. (2 Pet.) at 314; see also Republic of Marshall Islands, 865 F.3d at 1194 (treaty unlikely to be self-executing where it “fails to provide a rule of decision for courts because it contains indeterminate, vague, or aspirational language“). Article 105‘s text, moreover, confirms that this usual rule is soundly applied here, as paragraph three establishes “an express diplomatic” mechanism for fleshing out the details so conspicuously absent from paragraph one. See Medellin, 552 U.S. at 509. Such a mechanism is “itself evidence that” the provision was “not meant to be enforceable in domestic courts.” Id.; see also Bahel, 662 F.3d at 629 (“[T]he fact that the U.N. Charter provides for a diplomatic remedy in the event of a nation‘s non-compliance with [the relevant] Charter obligation[] strongly suggests that the . . . provision . . . was not meant to be self-executing.“).
Both the “negotiation and drafting history of” article 105 and “the understanding of [our] Executive Branch [and Senate] when [both] agreed to the U.N. Charter” corroborate this reading of paragraph one. Medellin, 552 U.S. at 507, 510. The U.N. Committee that drafted article 105 explained that while it wished to “provid[e] in general terms for the privileges and immunities of the Organization,”
Article 105 was understood the same way by the “President who negotiated it and the Senate that confirmed it.” Medellin, 552 U.S. at 521. The Secretary of State‘s Report to President Truman summarizing the Charter‘s negotiation and drafting, known as the San Francisco Conference Report, made clear the Secretary‘s view that “[s]o far as the United States [was] concerned, legislation w[ould] be needed to enable the officials of the United States to afford all of the appropriate privileges and immunities due the Organization . . . under” article 105. See Charter of the United Nations, Report to the President on the Results of the San Francisco Conference by the Chairman of the United States Delegation, the Secretary of State 160 (June 26, 1945) (San Francisco Conference Report), https://bit.ly/3frM1xC. That Report was also considered by the Senate, to whom State Department officials offered the same analysis. See Charter of the United Nations: Hearings Before the S. Comm. on Foreign Relations, 79th Cong. 34 (1945); id. at 319 (statement of Leo Pasvolsky, Special Assistant to the Secretary of State for International Organization and Security Affairs) (“[Article 105] provides for the extension of privileges and immunities to the Organization by the Members in their territories. . . . [B]ut just what kind of privileges and immunities would be extended would be a matter for future determination.“).
In the face of this advice, Congress moved quickly to implement its international-law obligation to provide the U.N. with immunity by enacting further domestic legislation, passing the
On a related note, consider how the political branches of our federal government responded to related and contemporaneous international-law developments. Not long after the Charter came into effect, the General Assembly exercised its
Even if article 105 is a self-executing provision of federal law, the Court cannot resist wondering (though neither party raises this argument) whether the
b. WHO Constitution
PAHO also believes that article 67 of the WHO Constitution provides it immunity from this action, but that position yields no more success — and for the same reason. Article 67 has strikingly similar language to article 105 of the U.N. Charter, stating that “[t]he Organization shall enjoy in the territory of each Member such privileges and immunities as may be necessary for the fulfillment of its objective and for the exercise of its functions.” WHO Constitution art. 67(a). Indeed, as PAHO itself argues, the WHO Constitution‘s “technical preparatory committee” “modeled” article 67 after article 105, paragraph 1 of the U.N. Charter. See PAHO MTD at 16; see also PAHO Reply at 9 (calling the language “virtually identical“). That alone is enough to conclude that article 67, like article 105, is not self-executing.
The other relevant evidence all supports that conclusion. As Plaintiffs point out, there is direct evidence that the United States did not intend to convert the WHO Constitution into domestic law by joining the organization. The joint resolution “authoriz[ing]”
Like the U.N. Charter, moreover, the WHO Constitution has a separate provision confirming that paragraph 67, read in full context, is not intended to have immediate and direct legal effect. Article 68 of the WHO Constitution, referring directly to paragraph 67, clarifies that “[s]uch . . . privileges and immunities shall be defined in a separate agreement to be prepared by the Organization in consultation with the Secretary-General of the United Nations and concluded between the Members.” WHO Constitution art. 68. Article 67, therefore, must be read as a precatory statement of general principle, the actual metes and bounds of which will be worked out in a “separate agreement.” And, as with the U.N. Charter, many signatory nations have taken the contemplated further step by ratifying the separate CPISA, which covers the WHO. See CPISA art. 1 § 1(ii)(g). Again, the United States chose not to do so.
In short, neither article 105, paragraph one of the U.N. Charter nor article 67 of the WHO Constitution is cognizable domestic law that this Court may enforce. Neither provision, therefore, renders PAHO immune from this action.
B. International Comity
Having won some battles while nonetheless losing the immunity war, PAHO next contends that the Court should dismiss this entire suit on abstention grounds under the doctrine of international comity. That doctrine is one “of deference based on respect for the decisions of foreign sovereigns” and “provides that a U.S. court should give full effect to a foreign judgment that has been rendered with impartiality and due process.” United States v. One Gulfstream G-V Jet Aircraft, 941 F. Supp. 2d 1, 8 (D.D.C. 2013).
PAHO argues that adjudicating this case would “flout[] comity principles” as to both nations whose conduct is relevant to the merits: Brazil and Cuba. See PAHO MTD at 36. As to Cuba, Defendant suggests that an examination and adjudication of whether “official acts of the Cuban government” violated federal laws against forced labor would “necessarily tread on Cuban sovereignty and cause offense to a foreign state.” Id. As to Brazil, PAHO makes similar points but argues in addition that the Brazilian courts have already issued a number of rulings “rejecting arguments that . . . Cuban physicians were coerced into participating” in Mais Medicos or that they “received unequal treatment in relation to others participating in the program.” Id. at 37. PAHO contends that this Court must respect the sovereignty and decisions of those foreign tribunals.
PAHO has no leg to stand on when it comes to Cuba, as “[a] defendant invoking the doctrine of comity must . . . point to a valid legal proceeding to which [this] [C]ourt must defer.” One Gulfstream G-V, 941 F. Supp. 2d at 9 (“[T]he doctrine . . . will not impede a judicial proceeding when no foreign judgment exists.“); Doe v. Exxon Mobil Corp., 654 F.3d 11, 64 (D.C. Cir. 2011) (“In order to invoke this doctrine, [a defendant] must either point to a legal proceeding [in a foreign country] involving these particular plaintiffs to which the court must defer or at least the availability of effective and non-futile local remedies.“), vacated on other grounds, 527 F. App‘x 7 (D.C. Cir. 2013). It is not enough to fret that the Court will have to scrutinize “official acts of the Cuban government,” PAHO MTD at 36 — if federal courts could not do so, there would be no point to the
Perhaps recognizing this defect, PAHO‘s reply brief focuses on Brazil, pointing to what it claims is a qualifying judgment of the highest Brazilian court, the Supremo Tribunal Federal. See PAHO MTD at 37; PAHO Reply at 22-23. PAHO asserts that this decision “rejected
challenges to the legality of the Mais Medicos program that concerned the same issues and subject matter presented here” by “finding that the participating Cuban doctors “were aware of [the program‘s] conditions” and were “not coerced into accepting” positions.” PAHO Reply at 22 (quoting ECF No. 54-5 (Summary Article) at ECF p.5). Plaintiffs disagree with that characterization, contending that the decision was focused on whether the operation of the Mais Medicos program violated a number of Brazilian laws and did not adjudicate whether Cuban physicians were forced into the program. See Opp. at 36.
The Court cannot, at least at this juncture, dismiss on comity grounds. As PAHO recognizes, “[C]omity is an affirmative defense,” and thus the party seeking its application “bears the burden of proof.” De Csepel v. Republic of Hungary, 714 F.3d 591, 607 (D.C. Cir. 2013) (quoting Taveras v. Taveraz, 477 F.3d 767, 783 (6th Cir. 2007)) (internal quotation marks omitted). A corollary of that principle is that in general, “dismissal at the [motion-to-dismiss] stage is improper.” Id. at 608; see also United States v. Sum of $70,990,605, 4 F. Supp. 3d 189, 204 (D.D.C. 2014) (“[A]s an affirmative defense, dismissing on the basis of international comity . . . is appropriate only if the facts that give rise to the defense are clear from the face of the complaint.“) (quotation omitted). Where there are “factual disputes . . . about issues such as the character, scope, and findings of” judicial opinions of other nations, therefore, it is appropriate to “defer[] resolution of an international comity . . . defense at the motion to dismiss stage.” Sum of $70,990,605, 4 F. Supp. 3d at 205. There is such a dispute here, and the Court finds it difficult to resolve on the basis of the exhibits before it, which appear to be articles summarizing the Brazilian court‘s decision and which are often fairly ambiguous on the matter at hand, perhaps due to translation from Portuguese to English. See, e.g., Summary Article at ECF p.5 (“With regard to the Cuba case, it is possible to agree or disagree.“); id. (“In this case, the Cuban state supervisory entity controls [the process] and withholds a portion [of payment]. . . . What happens is that within this treaty, within the pact, each country structures itself in a certain manner.“). The Court will therefore reserve decision.
That said, it is worth noting several other reasons for the Court‘s present belief that abstention is not warranted here. First, even if the case in Brazil did involve the same subject matter and factual issues presented here, neither the Plaintiffs in this action nor Defendant
Second, the Court takes heed that “the obligation of comity expires when the strong public policies of the forum are vitiated by the foreign act.” Laker Airways, 731 F.2d at 937; see One Gulfstream G-V, 941 F. Supp. 2d. at 10 (“[D]ismissal would not be appropriate [under international comity] when doing so “would be contrary to the policies or prejudicial to the interests of the United States.““) (quoting Pravin Banker Assocs., Ltd. v. Banco Popular Del Peru, 109 F.3d 850, 854 (2d Cir. 1997)). The United States has undertaken international-law obligations to prevent and punish human trafficking. See, e.g., United Nations Convention Against Transnational Organized Crime, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children art. 3, Dec. 15, 2000, 2225 U.N.T.S. 209. Those obligations are reflected in the TVPA, an act of Congress with significant criminal and civil penalties. And a significant part of PAHO‘s alleged conduct in violation of that federal law was undertaken on American soil, indeed in its capital. See Usoyan, 438 F. Supp. 3d at 24 (no comity where “[c]ourt is applying United States law to actions which occurred in the United States“); United States v. Portrait of Wally, A Painting by Egon Schiele, No. 99-9940, 2002 WL 553532, at *10 (S.D.N.Y. Apr. 12, 2002) (“Dismissal on international comity grounds [was] not warranted” where violation of U.S. law was alleged because “[t]he United States . . . has a strong interest in enforcing its own laws as applied to conduct on its own soil.“). In numerous respects, then, abstaining from adjudicating Plaintiffs’ case on the ground of comity would seem contrary to public policy.
To be clear, the Court reaches no final decision at this stage, and PAHO remains free to reassert the defense of international comity as the litigation continues. Perhaps it can adduce more evidence and greater detail regarding the decisions of the Brazilian court(s). For example, PAHO‘s brief suggests, without providing citation, that other “[l]ower courts in Brazil have adjudicated and dismissed multiple challenges to [Mais Medicos].” PAHO MTD at 37. Regardless, if PAHO is to renew this defense, it must grapple with the points made above, which find little airing in PAHO‘s briefing to date.
C. Service of Process
PAHO last argues that this entire action should be dismissed under
PAHO contends first that it is absolutely immune from service of process under the U.N. Charter and WHO Constitution, a position that, as just explained, holds no water because neither international agreement is self-executing domestic law. PAHO also argues, however, that in light of Jam, service on international organizations is governed by the specific rules for serving foreign nations set out in the FSIA. See
As it happens, the Court believes that PAHO waived its service objection by failing to raise it in its motion to transfer this case from the Southern District of Florida. This terminates the inquiry. Even were the Court to address the merits, it would nevertheless conclude that PAHO reads the IOIA incorrectly: international organizations covered by the IOIA may be served under Rule 4, as PAHO was here.
1. Waiver
The Federal Rules state that “[a] party waives any defense listed in Rule 12(b)(2)–(5) by . . . omitting it from a motion in the circumstances described in Rule 12(g)(2).”
PAHO‘s pending request that this Court dismiss for “insufficient service of process” is a Rule 12(b)(5) defense. Plaintiffs argue that such defense is therefore waived because PAHO‘s earlier motion to transfer the case to this district (1) did not raise this argument and (2) qualifies as a previous “motion under this rule [Rule 12].”
Plaintiffs have the better of this dispute. PAHO‘s motion to transfer primarily argued that “[t]ransfer [was] required
Of course, as PAHO points out, it technically did not file a motion to dismiss under
In response, PAHO cites authorities stating that “a motion to transfer venue is not a Rule 12 motion.” PAHO Reply at 23 (cleaned up) (citing Means v. U.S. Conference of Catholic Bishops, 836 F.3d 643, 648-49 (6th Cir. 2016)). Yet each of the cited authorities discusses only motions to transfer under
PAHO briefly suggests that even if it was required to preserve its 12(b)(5) argument in its motion to transfer, it “expressly reserve[d] its ineffective-service defense.” PAHO Reply at 23. In full, PAHO said the following in that motion:
PAHO intends to move to dismiss this action in light of those immunities [including immunity from service of process]. That motion, however, should be resolved by the U.S. District Court for the District of Columbia, because that is the only forum for this case that is even arguably appropriate. Subject to and without waiving any of its immunities, privileges, rights, or defenses, PAHO therefore moves to transfer this action there.
Mot. to Transfer at 1. Unfortunately for PAHO, “[t]he Federal Rules of Civil Procedure do not recognize any such “preservation of rights.“” Davis v. Shawnee Mission Med. Ctr., Inc., No. 07-2323, 2008 WL 4758591, at *8 (D. Kan. Oct. 27, 2008), aff‘d sub nom. Davis v. Liese, 353 F. App‘x 95 (10th Cir. 2009). “The language of the[] two rules, 12(g)(2) and 12(h)(1) . . . suggests that to preserve its 12(b)(2)-(5) defenses prior to answering, a party cannot simply “assert” or “reserve” the defense, but must actually argue that defense in a motion that prays the Court to enter a ruling or order.” Hunter v. Serv-Tech, Inc., No. 07-9009, 2009 WL 2858089, at *2 (E.D. La. Aug. 28, 2009). PAHO has offered no authority to the contrary.
2. Merits
Although this ruling puts PAHO‘s service defense to bed, the Court believes that, given the new world Jam has ushered in, some guidance on service under the IOIA will prove beneficial. Recall that the IOIA guarantees to PAHO “the same immunity from suit and every form of judicial process as is enjoyed by foreign governments.”
Defendant‘s argument is superficially appealing. On closer inspection, though, it relies on a false premise: that the FSIA makes foreign sovereigns immune from being served in any way other than the four it specifies. That need not be the case; it could simply be that the Act sets out the exclusive means of serving foreign nations, thereby displacing Rule 4, without conferring any sort of jurisdictional “immunity from . . . judicial process” in the sense used by the IOIA. That distinction may appear more linguistic than substantive, but it makes all the difference for purposes of deciding the question at hand, which depends on interpreting the language of the IOIA.
As it happens, the text of the FSIA clearly indicates that the non-immunity reading is correct.
This reading of the IOIA and FSIA comports with the usual way in which concepts such as immunity, service of process, and jurisdiction are typically understood in our federal system. Put simply, immunity is typically a question of subject-matter jurisdiction, whereas service of process typically falls under the umbrella of personal jurisdiction. See Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 494 n. 20 (1983) (“Under the [FSIA], . . . subject matter jurisdiction turns on the existence of an exception to foreign sovereign immunity.“); Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444-445 (1946) (“[S]ervice of summons is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served.“); Lemma v. Hispanic Nat‘l Bar Ass‘n, 318 F. Supp. 3d 21, 24 (D.D.C. 2018) (citing Omni Capital Int‘l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987)) (service-of-process requirement “must be satisfied . . . before a federal court may exercise personal jurisdiction over a defendant“). The FSIA fully embraces this dichotomy in section 1330, which reads as follows:
(a) The district courts shall have original jurisdiction . . . of any nonjury civil action against a foreign state as defined in section 1603(a) of this title as to any claim for relief in personam with respect
to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement. (b) Personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction under subsection (a) where service has been made under section 1608 of this title.
What is more, requiring plaintiffs to serve international organizations using the FSIA‘s specific methods would be both absurd and pointless. It is apparent on first blush that several, if not all four, of the FSIA‘s methods make no sense as applied to international organizations. There is no “international convention on service of judicial documents” that is “applicable” to an international organization like PAHO. See
Out of luck on the merits, PAHO contends that its reading of the IOIA is compelled by the law of the case. See PAHO Reply at 24. It argues that Judge Darrin Gayles of the Southern District of Florida already concluded, in his opinion granting the motion to transfer, that PAHO was subject to service only under section 1608(a). It is true that Judge Gayles wrote in a somewhat cryptic footnote that the “FSIA‘s specific provisions for service of foreign states” were among the items “to which the IOIA‘s immunity from judicial process refers.” ECF No. 46 (Transfer Op.) at 10-11 n.6. But that brief, unreasoned aside was not necessary to the holding, which was that the “IOIA‘s textual guarantee of the “same immunity from suit as enjoyed by foreign governments” . . . incorporates the FSIA‘s venue restrictions.” Id. at 9; see Ferring Pharm., Inc. v. Azar, 296 F. Supp. 3d 166, 176 (D.D.C. 2018) (“Dicta is not part of the law of the case.“) (cleaned up) (quoting United States v. Singleton, 759 F.2d 176, 185 (D.C. Cir. 1985)).
Nor does Judge Gayles‘s holding logically compel the conclusion PAHO advances here. His opinion relied heavily on a comparison between foreign sovereign immunity and the sovereign immunity of U.S. states, and he read the law of state sovereign immunity to give states control over both “whether” and “where” they are sued. See Transfer Op. at 13-15 (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984)). In Judge Gayles‘s view, the FSIA thus essentially confers immunity from suit in any venue not specifically provided for in the FSIA. Id. Applying that same logic does not help PAHO on the service-of-process question, though, because state-sovereign-immunity principles do not confer any particular privileges on states as to how they may be served. See
In brief, then, even had PAHO preserved its argument that it has not been served properly, the Court concludes that such argument gets the law wrong and must be rejected.
D. Jurisdictional Discovery
One word is needed in order to tie up a final loose end. In addition to their commercial activity and expropriation arguments, Plaintiffs also maintain in their Opposition that “PAHO may have waived its immunity [under the IOIA] either expressly or by implication by entering into agreements in which it voluntarily assumed obligations under U.S. law.” Opp. at 33 (citing
Rather than consider the Jurisdictional Discovery Motion now, however, the Court
III. Conclusion
Given the number of complex issues addressed in this Opinion and the related procedural nuances, the Court once more summarizes its decision below.
PAHO is not immune from suit in federal court under the U.N. Charter or the WHO Constitution, as both are not self-executing and thus are not cognizable domestic law. Subject-matter jurisdiction therefore turns on the IOIA, which incorporates the FSIA‘s exceptions to immunity. Applying those exceptions, the Court has jurisdiction per the commercial-activity exception of the FSIA/IOIA over Plaintiffs’ claim under
The Court will, accordingly, deny PAHO‘s Motion to Dismiss Plaintiffs’ 1589(b) and RICO claims, and it will hold in abeyance the same Motion as to Plaintiffs’ 1589(a) and 1590 claims pending the receipt of further information from Plaintiffs at the next status conference. A contemporaneous Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: November 9, 2020