Ramona Matos Rodriguez v. Pan American Health OrganizationRamona Matos Rodriguez v. Pan American Health Organization
David W. Bowker argued the cause for appellant. With him on the briefs were Patrick J. Carome and Daniel S. Volchok.
Jeffrey T. Green and Marisa S. West were on the brief for amici curiae The International Bank for Reconstruction and Development, et al. in support of appellant.
Samuel J. Dubbin argued the cause for appellees. With him on the brief were Jonathan W. Cuneo, Charles J. Cooper, Michael W. Kirk, Haley N. Proctor and Joseph O. Masterman.
Martina E. Vandenberg and Stuart A. Raphael were on the brief for amicus curiae Human Trafficking Legal Center in support of appellees. Elbert Lin entered an appearance.
Agnieszka M. Fryszman was on the brief for amici curiae Senator Robert Menendez, et al. in support of appellees.
Lewis Yelin, Attorney, U.S. Department of Justice, argued the cause for amicus curiae The United States in support of neither party. With him on the brief were Brian M. Boynton, Acting Assistant Attorney General, and Sharon Swingle, Attorney.
Before: HENDERSON, TATEL and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
I. BACKGROUND
On review of a dismissal denial, “we must accept as true all material allegations of the complaint, drawing all reasonable inferences from those allegations in plaintiffs’ favor, and presuming that generаl allegations embrace those specific facts that are necessary to support the claim.” LaRoque v. Holder, 650 F.3d 777, 785 (D.C. Cir. 2011) (cleaned up). We recite the facts accordingly.
In 2012, Brazilian and Cuban officials discussed Cuba‘s “export[ing]” medical services to Brazil. Rodriguez v. Pan Am. Health Org., 502 F. Supp. 3d 200, 208 (D.D.C. 2020). According to the United States Department of State, Cuba relies on “medical missions” as a significant source of income and recruits physicians under the threat of “harsh social, economic, political[,] personal, reputational, and legal repercussions.” Id. Cuba proposed sending six thousand internal medicine specialists to Brazil. Id. Brazilian officials did not want to enter into an “intergovernmental agreement,” which required approval of the Brazilian Congress and thus could “generate controversy.” Id. To avoid an intergovernmental agreement, Brazilian officials proposed using PAHO as an intermediary. Id. Accordingly, PAHO entered into an agreement with Brazil and Cuba, the “Technical Cooperation Agreement Between the Ministry of Public Health of the Republic of Cuba and the Pan American Health Organization/World Health Organization for Expanded Access by the Brazilian Population to Primary Health Care” (Agreement).
PAHO‘s participation in the Mais Medicos program is somewhat ambiguous, as the complaint alleges two alternative roles that PAHO played. First, the complaint alleges that PAHO directly participated in human trafficking. PAHO “knowingly provided and obtained the labor or services of Plaintiffs by threats of force, рhysical restraint, threats of physical restraint, serious harm, threats of serious harm, abuse of laws and legal process, threats of abuse of laws and legal process, and by participating in a scheme, plan, or pattern intended to cause Plaintiffs and Class members to believe that if they did not comply with the restrictions and work under the conditions PAHO instituted and enforced, they would suffer serious harm or physical restraint.” App. 123. By its alleged conduct, the complaint continues, PAHO violated the Trafficking Victims Protection Act (TVPA),
Alternatively, the complaint alleges that PAHO acted as a financial intermediary between Brazil and Cuba, to wit: “PAHO . . . entered into a bilateral agreement with the Cuban government to guarantee it would transfer resources from third parties as a way to compensate Cuba for the
The complaint acknowledges that under the Agreement, PAHO is to provide technical medical expertise necessary to facilitate the Mais Medicos program. “In June of 2012, PAHO entered into an agreement with the Government of Cuba that call[ed] for PAHO [t]o facilitate international cooperation . . . and the triangulation in health care cooperation and the moving of resources.” App. 72 (internal quotation marks omitted) (second alteration in original). Under the Agreement, then, PAHO was to servе as a “broker—for a fee—of medical services” and “triangulat[e] health care services between Cuba and [Brazil] for compensation” App. 66, 72-73 (internal quotation marks omitted). According to the complaint, however, PAHO‘s outward role to “facilitate” or “triangulate” medical services was merely a “pretext for being a conduit of money.” App. 88.
Four Cuban Mais Medicos physicians escaped to the United States and filed a class-action suit against PAHO in the U.S. District Court for the Southern District of Florida. Rodriguez, 502 F. Supp. 3d at 209. The complaint contains two civil counts: first, PAHO participated in human trafficking and violated the TVPA,
The district court determined that “Count I“—alleging that PAHO violated the TVPA—itself included three separate claims. Id. at 209-10. First, PAHO obtained and provided human labor through intimidation, violating
The district court upheld PAHO‘s IOIA immunity as to the first and third TVPA claims as well as the RICO claim, id. at 211-23, and held those claims in abeyance while it determined whether to allow jurisdictional discovery, id. at 236-37. Accordingly, those claims are not yet before us.
On the second TVPA claim, the district court rejected PAHO‘s IOIA immunity. Because the IOIA grants designated international organizations the same immunity as foreign sovereigns,
The district court also concluded that the WHO Constitution did not render PAHO immune from the second TVPA claim. Id. at 227-28. PAHO claimed immunity under a provision that grants the WHO, PAHO‘s parent organization, “privileges and immunities as may be necessary” to carry out WHO functions. Id. at 227; WHO CONST. art. 67(a). The district court ruled that the provision is not self-executing because Article 68 of the WHO Constitution provides that the “privileges and immunities shall be defined in a separate agreement.” Rodriguez, 502 F. Supp. 3d at 228. Because the United States has not entered into a qualifying “separate agreement,” id., PAHO is without WHO Constitution immunity from suit.2 PAHO timely appealed.
Pursuant to
II. ANALYSIS
PAHO asserts its immunity under both the IOIA and the WHO Constitution. Our review is de novo. Zuza v. Off. of the High Representative, 857 F.3d 935, 938 (D.C. Cir. 2017). “Where, as here, the defendant contests only the legal sufficiency of [the] jurisdictional claims, the standard is similar to that of Rule 12(b)(6), under which dismissal is warranted if no plausible inferences can be drawn from the facts alleged that, if proven, would provide
A. IOIA Immunity
The IOIA grants an international organization “the same immunity from suit . . . as is enjoyed by foreign governments.”
The IOIA, through the FSIA provisions, grants PAHO immunity from suit brought in American courts.
1. Whether to determine the gravamen on a claim-by-claim basis
PAHO contends that we should look to the entire complaint in determining the gravamen of the action. It notes that the commercial activity exсeption applies if “the action is based upon a commercial activity,”
First, the FSIA text does not require courts to look to the entire lawsuit to determine the gravamen thereof. PAHO relies significantly on the assumption that “action” in
Second, Sachs instructs courts to define the “gravamen” on a claim-by-claim basis. Earlier, in Nelson, the plaintiff had claimed that the commercial activity exception lifted Saudi Arabia‘s sovereign immunity. 507 U.S. at 355-56. In that case, the Supreme Court read the commercial activity exception to require a court to look to the “elements of a claim that, if proven, would entitle a plaintiff to relief under his theory of the case” in determining whether an action is “based upon” commercial activity in the United States. Id. at 357. After Nelson, the Ninth Circuit Sachs opinion adopted an “element-by-element” approach under which the commercial activity exception applies if any element of а claim involves a “commercial activity . . . in the United States.” Sachs v. Republic of Austria, 737 F.3d 584, 599 (9th Cir. 2013) (en banc).3
In our circuit, we read Nelson to say that the commercial activity must constitute an essential element of the claim. Kirkham v. Société Air France, 429 F.3d 288, 292 (D.C. Cir. 2005) (“so long as the alleged commercial activity establishes a fact without which the plaintiff will lose, the commercial activity exception applies“). In Kirkham, we explained that the plaintiff “must show she purchased a plane ticket in order to establish a passenger-carrier relationship with the airline” and proceed with her negligence claim against Air France. Id. The Fourth and Fifth Circuits interpreted Nelson similarly. See Globe Nuclear Servs. & Supply (GNSS), Ltd. v. AO Techsnabexport, 376 F.3d 282, 287 (4th Cir. 2004) (what plaintiff “will need to prove” constitutes what action is “based upon“); Kelly v. Syria Shell Petroleum Dev. B. V., 213 F.3d 841, 853 (5th Cir. 2000) (inquiry is whether alleged commercial activity is “an essential element of the claims“).
The Third Circuit read Nelson to “require the actual legal claims being pursued to have arisen materially from the commercial activity undertaken by the foreign state.” Fed. Ins. Co. v. Richard I. Rubin & Co., 12 F.3d 1270, 1288 (3d Cir. 1993). It therefore held that tort claims arising from deficient electriсal and fire detection systems were not “based upon” a Dutch-controlled entity that invested in American property. Id. at 1289. The investments were not “directly connected to the cause of action” or the “‘basis’ or ‘foundation’ of the claims.” Id.
omitted). PAHO argues that the Sachs Court, in saying that Nelson “did not undertake . . . an exhaustive claim-by-claim, element-by-element analysis of the Nelsons’ 16 causes of action,” id. at 34, instructs us to look to the entire lawsuit to determine whether an action is “based upon” commercial activity in the U.S. But Sachs rejected the Ninth Circuit‘s “one-element” approach and instead reaffirmed its direction to look to the “gravamen” of the suit. Indeed, Sachs itself considered individual claims, declaring that “the gravamen of Sachs‘s suit plainly oсcurred abroad. All of her claims turn on the same tragic episode in Austria.” Id. (emphasis added). The Court explicitly rejected Sachs‘s assertion that some of her claims were based upon American activity. Id. at 35-36 (“Sachs maintains that some of those claims are not limited to negligent conduct or unsafe conditions in Austria, but rather involve at least some wrongful action in the United States. . . . However Sachs frames her suit, the incident in Innsbruck remains at its foundation.“). The Court in fact emphasized its opinion‘s limited reach, noting it “consider[ed] here only a case in which the gravamen of each claim is found in the same place.” Id. at 36 n.2 (emphasis added). Sachs, then, approves considering the “gravamen” on a claim-by-claim basis.
Since Sachs, wе have considered “FSIA immunity determinations on a claim-by-claim basis.” Simon v. Republic of Hungary, 812 F.3d 127, 141 (D.C. Cir. 2016) (citing precedent from other circuits), vacated on other grounds by Federal Republic of Germany v. Philipp, 141 S. Ct. 703 (2021); see also Action All. of Senior Citizens of Greater Philadelphia v. Sullivan, 930 F.2d 77, 83 (D.C. Cir. 1991) (vacated opinions “continue to have precedential weight, and in the absence of contrary authority, we do not disturb them“). In Simon, we reviewed claims made by fourteen Holocaust survivors against the Republic of Hungary and its state-owned railway. Id. at 132. The survivors “assert[ed] causes of action ranging from the common law torts of conversion and unjust enrichment for the plaintiffs’ property loss, to false imprisonment, torture, and assault for their personal injuries, to international law violations.” Id. at 134. They argued that FSIA‘s expropriation exception applied, id. at 140, which requires, inter alia, “that the claims аre ones in which ‘rights in property’ are ‘in issue,‘” id. at 141 (quoting
2. Whether the gravamen occurred in the United States
The parties also dispute how to define the gravamen under the claim-by-claim approach and whether the gravamen constitutes “commercial activity carried оn in the United States.” PAHO maintains that the “gravamen” is the activity that in fact injured the physicians, the alleged human trafficking and forced labor. In Sachs, the Supreme Court rejected Sachs‘s argument that, for her failure-to-warn claim, the gravamen occurred in the United States. 577 U.S. at 35-36. “Under any theory of the case that Sachs presents . . . there is nothing wrongful about the sale of the [train] pass standing alone. Without the existence of the unsafe boarding conditions in [Austria], there would have been nothing to warn Sachs about when she bought the [train] pass. However Sachs frames her suit, the incident in [Austria] remains at its foundation.” Id. Moreover, in Jam v. International Finance Corporation, 3 F.4th 405 (D.C. Cir. 2021), we recently applied a similar rationale. The plaintiff alleged that the International Finance Corрoration (IFC) negligently lent money to an Indian power-generation project that allegedly caused significant environmental damage. Id. at 407. Relying in part on the Supreme Court‘s earlier decision in the case, see Jam, 139 S. Ct. at 779 (“[I]f the ‘gravamen’ of a lawsuit is tortious activity abroad, the suit is not ‘based upon’ commercial activity within the meaning of the FSIA‘s commercial activity exception.“), we held that, notwithstanding the IFC loan transaction took place in the United States, the “gravamen” occurred in India because all the allegedly wrongful conduct occurred there. Jam, 3 F.4th at 409.
PAHO asserts that “moving money for a fee” likewise becomes “wrongful” only due to activity that occurred elsewhere—in this instance, аlleged human trafficking and forced labor in Cuba and/or Brazil. Absent the alleged trafficking and forced labor, PAHO would have merely acted as a typical financial intermediary. As in Sachs and in Jam, PAHO argues that we should look to what “actually injured” the physicians in identifying the “gravamen.” See Sachs, 577 U.S. at 35-36. If PAHO is right, the “gravamen” occurred abroad and the commercial activity exception would not apply.
We think that Sachs does not require defining the “gravamen” by looking to the acts that “actually injured” the physicians. In defining the “gravamen” according to the activity that injured the plaintiffs, the Sachs Court clarified that “[d]omestic conduct with respect to different types of commercial activity may play a more significant role in other suits.” 577 U.S. at 36 n.2; see also id. (“Justice Hоlmes wrote that the ‘essentials’ of a personal injury narrative will be found at the ‘point of contact‘—‘the place where the boy got his fingers pinched.’ At least in this case, that insight holds true.” (citation
Here, however, the alleged financial activity itself gives rise to a cause of action. See
B. WHO Constitution Immunity
PAHO also claims immunity under the WHO Constitution. The WHO Constitution provides that it “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 CONST. art. 67(a). “Such . . . privileges and immunities shall be defined in a separate agreement to be prepared by the Organization in cоnsultation with the Secretary-General of the United Nations and concluded between the Members.”
Although the Supremacy Clause of the United States Constitution guarantees that “all Treaties . . . shall be the supreme Law of the Land,”
To determine whether a treaty is self-executing, the court must “decide whether a treaty‘s 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. “The interpretation of a treaty [is] like the interpretation of a statute.” Id. at 506. We first look to the treaty‘s text. Id. Because a treaty is “an agreement among sovereign powers, we have traditionally [also] considered as aids to its interpretation
As made plain by the language of Articles 67(a) and 68 of the WHO Constitution, Article 67(a) is not self-executing. First, Article 67(a) does not provide an enforceable rule-of-decision. If a treaty provision does not contain a judicially manageable rule of decision, the provision is ordinarily not self-executing. See Diggs v. Richardson, 555 F.2d 848, 851 (D.C. Cir. 1976) (treaty is not self-executing if it does “not provide specific standards“); cf. Edye v. Robertson, 112 U.S. 580, 598-99 (1884) (“A treaty, then, is a law of the land as an act of congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined.“). Article 67(a) provides that the WHO enjoys “privileges and immunities . . . necessary for the fulfillment of [the WHO‘s] objective.” That standard is far too general to establish a rule of decision.
Moreover, Article 68 stipulates that the political branches will enforce Article 67(a). See WHO CONST. art. 68 (Article 67(a)‘s “privileges and immunities shall be defined in a separate agreement to be рrepared by the Organization in consultation with the Secretary-General of the United Nations and concluded between the Members“). If treaty language requires a political branch to take future action, courts almost always conclude that the treaty language committed discretion to the political branches and is therefore not self-executing. See Diggs, 555 F.2d at 851 (treaty not self-executing if it “call[s] upon governments to take certain action“); Republic of Marshall Islands v. United States, 865 F.3d 1187, 1194 (9th Cir. 2017) (treaty provision that “anticipates future action . . . to implement or honor the treaty obligation” is not self-executing); cf. Medellin, 552 U.S. at 509 (“The U.N. Charter‘s provision of an express diplomatic—that is, nonjudicial—remedy is itself evidence that [International Court of Justice] judgments were not meant to be enforceable in domestic courts.“). Article 68 states that Article 67(a)‘s “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.” The WHO Constitution thereby requires members to conclude an agreement defining the privileges and immunities. By adopting the WHO Constitution, the President and the Congress thereby agreed that another agreement is required to define the WHO‘s privileges and immunities, relieving the courts of the task of defining them.
In response, PAHO relies on Article 67(a)‘s mandatory language. See WHO CONST. art. 67(a) (WHO “shall enjoy . . . such privileges and immunities as may be necessary for the fulfillment of its objective
PAHO also asserts that the U.S. has by implication bound itself to the separate treaty that defines the WHO‘s “privileges and immunities.” In 1947, as provided by Article 68, the United Nations General Assembly approved the Convention on the Privileges and Immunities of the Specialized Agencies (CPISA). See Convention on the Privileges and Immunities of the Specialized Agencies, 33 U.N.T.S. 261 (1947) (art. I, § 1(ii)(g) & art. III, § 4). The CPISA grants the WHO immunity from every form of legal process.
PAHO contends that the United States “by implication” ratified the CPISA, at least insofar as it defines the “privileges and immunities” of Article 67(a) of the WHO Constitution, when it ratified the WHO Constitution. But the United States did not ratify the CPISA by virtue оf the WHO Constitution‘s provision requiring a subsequent agreement defining “privileges and immunities.” Indeed, when the U.S. eventually entered into a corresponding treaty that granted immunity to the U.N.—the Convention on the Privileges and Immunities of the United Nations (CPIUN)—the Senate Report indicates that the political branches had not ratified treaties like the CPISA because they thought that the IOIA itself provided sufficient immunity to international organizations. S. Exec. Rep. No. 91-17, p. 1, 8, 11, 14 (1970). Moreover, the political branches thought it necessary to ratify the CPIUN—which expanded IOIA immunity in “minor ways,”
Finally, we note that the United States has submitted an amicus brief affirming that, in its view, WHO Constitution Article 67(a) is not self-executing. “Respect is ordinarily due the reasonable views of the Executive Branch concerning the meaning of an international treaty.” El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168 (1999). The Executive Branch‘s position reinforces our decision.
For the foregoing reasons, we affirm the district court‘s judgment denying PAHO‘s motion to dismiss the
So ordered.