Zoran ZUZA, Appellant v. OFFICE OF THE HIGH REPRESENTATIVE, et al., Appellees
No. 16-7027
United States Court of Appeals, District of Columbia Circuit.
Submitted March 2, 2017. Decided May 30, 2017
935
Mark A. Cymrot, Washington, DC, was on brief for the appellees.
Benjamin C. Mizer, Principal Deputy Assistаnt Attorney General at the time the brief was filed, United States Department of Justice, H. Thomas Byron, III, and Edward Himmelfarb, Attorneys, Washington, DC, were on brief as amicus curiae in support of the appellees.
Before: HENDERSON, TATEL and SRINIVASAN, Circuit Judges.
KAREN LECRAFT HENDERSON, Circuit Judge:
This case presents a straightforward question: What happens to a pending lawsuit when the defendants establish that they are statutorily immune from “legal process“? We cоnclude that it must cease. We therefore affirm the district court‘s dismissal for lack of subject matter jurisdiction.
I. BACKGROUND
At the start of the 1990s, the Socialist Federal Republic of Yugoslavia (Yugoslavia) was a multiethnic federation in southeastern Europe. But throughout the early 1990s, the country began to disintegrate. Bosnia and Herzegovina—one of Yugoslavia‘s six constituent republics—declared its independence in early 1992. A bloody conflict ensued, ending several years later with the 1995 Dayton Peace Agreement (Agreement). The Agreement established Bosnia and Herzegоvina as an independent, democratic and multiethnic state with two separate political subdivisions—the Republika Srpska and the Federation of Bosnia and Herzegovina. It also established the Office of the High Representative (OHR), a body charged with overseeing parts of the Agreement‘s implementation on behalf of the international community. The OHR receives “political guidance” from the Steering Board of the Peace Implementation Council (PIC), the latter comprising fifty-five countries and agencies that support the peаce process in various ways. Supplemental Appendix 11-12.
In the years following the Agreement, the PIC formally convened several times. At one such gathering in Bonn, Germany in December 1997, thе PIC granted the High Representative authority to “mak[e] binding decisions, as he judges necessary, on ... measures to ensure implementation of the Peace Agreement throughout Bosnia аnd Herzegovina.” Id. at 37. The measures include “actions against persons holding public office or officials ... who are found by the High Representative to be in violation of legal cоmmitments made under the Peace Agreement or the terms for its implementation.” Id. One year later, at its December 1998 Madrid Conference, the PIC determined that “leaders whom the High Representative bar[s] from official office may also be barred from running in elections and from any other elective or appointive public office and from office within politiсal parties until further notice.” Id. at 66.
In June 2004, then-High Representative Jeremy Ashdown removed Zoran Zuza from his post in the Republika Srpska government. Ten years later, Zuza sued the OHR, Ashdown and Valentin Inzko, the current High Representative. Zuza v. Office of High Representative, 107 F.Supp.3d 90, 92 (D.D.C. 2015). On June 4, 2015, the district court determined that all defendants were statutorily immune to Zuza‘s suit under the International Organizations Immunities Act (IOIA),
Shortly thereafter, Zuza sought reconsideration. Among other things, he argued that Ashdown and Inzko had not complied with section 8(a) of the IOIA and so were not entitled to immunity. Section 8(a) provides that no person is entitled to IOIA immunity until one of three conditions precedеnt is fulfilled.
The defendants and the United States submitted four letters substantiating Ashdown‘s and Inzko‘s notification and acceptance. Thе first was a June 2011 letter from Inzko to then-Secretary Hillary Clinton, notifying her of nearly three dozen OHR officers and employees. That list included Inzko but not Ashdown. The other three letters were all dаted August 2015 or later, meaning they were written well after Zuza brought suit. On August 13, 2015, Inzko wrote then-Secretary John Kerry to “formally present and ‘notify‘” Ashdown to him. Supplemental Appendix 135. Then, on August 17, 2015, Inzko wrote Ambassador Gentry O. Smith to “request written confirmation that the notifications of Lord Ashdown and [Inzko] were accepted by the Secretary of State.” Joint Appendix 105. And finally, on November 20, 2015, Clifton Seagrоves, the Acting Deputy Director of the State Department‘s Office of Foreign Missions, composed a letter confirming that State Department records reflected both Ashdown‘s and Inzko‘s notification and acceptance.
Based on these letters, the district court denied reconsideration. It found that Ashdown and Inzko met section 8(a)‘s requirements. The court found no problem with the fact that most of the letters postdated Zuza‘s suit. It concluded that IOIA immunity can apply “retroactively” to reach litigation already commenced. Zuza v. Office of the High Representative, No. CV 14-01099 (RC), 2016 WL 447442, at *6 (D.D.C. Feb. 4, 2016). It thus denied reconsideration and Zuza appealed.
Zuza‘s challenges on appeal are many. We have fully considered each but find none persuasive. We limit our discussion to one—namely, whether Ashdown and Inzko were entitled to immunity, evеn if section 8(a)‘s requirements were not met until August 2015 or later. We review the district court‘s resolution of this question of law de novo. Nyambal v. Int‘l Monetary Fund, 772 F.3d 277, 280 (D.C. Cir. 2014).3 We agree that the district court lacked subject matter jurisdiction regardless of the date Ashdown and Inzko‘s immunity vested.
The IOIA‘s text compels our conclusion. It entitles qualifying officers and employees to immunity not only from “suit” but also from “legal process.”
This is not an anomalous conclusion. Courts have found that other forms of immunity acquired pendente lite mandate dismissal of a validly commenced lawsuit. See, e.g., Abdulaziz v. Metro. Dade Cty., 741 F.2d 1328, 1329-30 (11th Cir. 1984) (“[D]iplomatic immunity ... serves as a defense tо suits already commenced.“). And that makes sense. Federal courts are tribunals of “limited jurisdiction,” possessing “only that power authorized by Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). When intervening events deprive a court of its adjudicative authority, the litigation must end. For example, an action may be dismissed upon the repeal of the jurisdictional statute under which the case was brought. Landgraf v. USI Film Prod., 511 U.S. 244, 274 (1994). Or it may end whеn the President exercises his lawful authority to restore a nation‘s previously abrogated sovereign immunity. Republic of Iraq v. Beaty, 556 U.S. 848, 866 (2009). Circumstances vary but the guiding principle is the same: Removing judicial power to adjudiсate a case compels its dismissal.
So too here. Seagroves‘s letter left no doubt that Ashdown and Inzko had been “duly notified to and accepted by the Secretary of State as a representative, officer, or employee[.]”
So ordered.