Eugene Nyambal v. International Monetary Fund

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 5, 2014 Decided November 25, 2014

No. 13-7115

EUGENE NYAMBAL,

APPELLEE

v.

THE INTERNATIONAL MONETARY FUND,

APPELLANT

Consolidated with 14-7025

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-01037)

Patrick J. Carome argued the cause for appellant. With

him on the brief were Christopher L. Morgan and Adam I.

Klein.

John M. Shoreman argued the cause and filed the briefs

for appellee.

Before: TATEL and BROWN, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.

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BROWN, Circuit Judge: The International Monetary

Fund’s (“Fund’s”) motion to dismiss this tort suit was

converted into a discovery dispute when the district court,

over the Fund’s objections, granted plaintiff’s request for

jurisdictional discovery. The Fund sought reconsideration of

the discovery order; the court denied it and separately

disposed of the motion to dismiss as moot because the

plaintiff had filed an amended complaint. Because we think

more than a bare assertion that “something may turn up” is

necessary to justify jurisdictional discovery in the face of the

Fund’s broad immunity, we reverse.

I

Eugene Nyambal, a former senior advisor to the Fund,

says he was terminated after raising allegations of corruption.

Shortly after he and the Fund went their separate ways, Mr.

Nyambal says he entered the Bank-Fund Staff Credit Union

(“Credit Union”), a public credit union located in leased space

on the Fund’s premises, to transact personal banking business

and was “accosted” by the Credit Union’s security personnel

who “escorted [him] from the Credit Union in full view of the

public and a professional colleague . . . .” Complaint at 6

¶ 13, Nyambal v. Int’l Monetary Fund, No. 1:12-cv-01037

(D.D.C. May 2, 2014). Based on this incident, Nyambal filed

suit against the Fund, asserting claims for assault, false

imprisonment, and intentional infliction of emotional distress.

The Fund submitted affidavits categorically denying any

express waiver of the absolute immunity conferred by its

Articles of Agreement and the International Organization’s

Immunity Act (IOIA), see generally Articles of Agreement,

Art. IX § 3 (given force of law by 22 U.S.C. § 286h); IOIA,

Pub. L. No. 79-291, 59 Stat. 669 (1945) (codified at 22 U.S.C.

3

§ 288a(b)). When the Fund moved to dismiss, invoking its

absolute immunity, Nyambal countered by moving to stay the

dismissal motion and seeking jurisdictional discovery to show

the Fund had expressly waived its immunity in its contracts

with the Credit Union or the security services firm. Although

the Fund’s affidavits confirmed no express waiver had been

contemplated, presented to the Board, or approved, the district

court authorized jurisdictional discovery. The Fund moved

for reconsideration and voluntarily furnished complete copies

of the Credit Union and security services contracts. The

Fund’s overtures proved unavailing. The district court

rebuffed its entreaty for reconsideration; in the court’s view,

full disclosure of the two pertinent contracts did not, “obviate

the need for further jurisdictional discovery.” Minute Order,

Nyambal v. Int’l Monetary Fund, No. 1:12-cv-01037 (D.D.C.

Feb. 12, 2014).

The district court agreed with Nyambal that

“inconsistencies in the contracts,” id., rendered

reconsideration ill-advised. Article 28 of the Credit Union

lease contract expressly provides for non-waiver. See

Patterson Aff. ¶ 2 (“[T]he Fund “does not, by virtue of this

Lease, waive [its] immunities, which may only be waived by

a decision of the Executive Board of the International

Monetary Fund.”). Yet Article 13.1 provides that the Fund

“shall not be liable for any personal injury to, or damages to

the personal property of, Tenant, Tenant’s . . . business

invitees, . . . customers, clients, [or] . . . guests[,] . . . arising

from the use, occupancy and condition of the Premises or the

Building, unless such personal injury or damage to property

resulted solely from the negligence or willful misconduct of

the Landlord, its agents or employees.” Brief of Defendant-

Appellant at 48, Nyambal v. Int’l Monetary Fund, No. 13-

7115 (D.C. Cir. May 2, 2014) (emphasis added). Thus, in

Nyambal’s—and the district court’s—view the second sub-

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clause of Article 13.1 is suggestive of waiver or is otherwise

in tension with Article 28’s broad and express denial.

In a separate order, issued the same day, the court also

granted Nyambal’s motion to amend his complaint. In light

of Nyambal’s amended complaint, the court denied the

Fund’s motion to dismiss as moot.

Twice spurned below on the issue of jurisdictional

discovery, the Fund now challenges the district court’s

discovery orders on appeal. The Fund also contests the denial

of its motion to dismiss.

II

A couple of preliminary questions about our jurisdiction

must be resolved before we can consider the substance of the

Fund’s claims. Ordinarily, we have jurisdiction only to

review final decisions of the district court, 28 U.S.C. § 1291,

but under collateral order doctrine, section 1291 jurisdiction is

available for a small subset of decisions which “finally

determine claims of right separable from, and collateral to,

rights asserted in the action, too important to be denied review

and too independent of the cause itself to require [] appellate

consideration to be deferred . . . .” Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 546 (1949). Thus, a decision may

be collaterally appealed if it: [1] “conclusively determine[s]

the disputed question, [2] resolve[s] an important issue

completely separate from the merits of the action, and [3] [is]

effectively unreviewable on appeal from final judgment.”

Will v. Hallock, 546 U.S. 345, 349 (2006).

A district court’s grant of discovery against an absolutely

immune defendant is sufficiently conclusive to qualify for

collateral review. See generally Foremost-McKesson, Inc. v.

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Islamic Republic of Iran, 905 F.2d 438, 443 (D.C. Cir. 1990).

“[A] trial court’s denial of an immunity defense entitles the

defendant to an immediate appeal . . . .” In re Papandreou,

139 F.3d 247, 251 (D.C. Cir, 1998). Just as a district court’s

denial of sovereign immunity finally determines the foreign

state’s right to be immune from the burden of a lawsuit, a

court’s grant of jurisdictional discovery denies an

international organization protection from similar burdens.

See Beecham v. Socialist People’s Libyan Arab Jamahiriya,

424 F.3d 1109, 1111 (D.C. Cir. 2005). “Here too . . .

immediate review is appropriate.” In re Papandreou, 139

F.3d at 251.

Similarly, the denial of a motion to dismiss on immunity

grounds would satisfy the Cohen criteria for interlocutory

review. Kilburn v. Socialist People’s Arab Jamahiriya, 376

F.3d 1123, 1126 (D.C. Cir. 2004). However, in this case, the

district court’s denial did not rest on the Fund’s claim of

immunity. Instead, the court found Nyambal’s filing of an

amended complaint mooted the motion to dismiss. Because

the court did not resolve the question of immunity in denying

the motion to dismiss, interlocutory review is available for the

grant of jurisdictional discovery but not the determination of

mootness. As the Fund itself concedes, Nyambal’s amended

pleading “effect[s] no material change in his factual

allegations or legal theories,” Brief of Defendant-Appellant at

55, or otherwise requires more than a single renewal of the

Fund’s pre-existing motion.

III

Our review of “[a] foreign nation’s entitlement to

sovereign immunity raises questions of law reviewable de

novo.” McKesson HBOC, Inc. v. Islamic Republic of Iran,

271 F.3d 1101, 1105 (D.C. Cir. 2001), vacated on other

6

grounds, 320 F.3d 280 (D.C. Cir. 2003). See also Kirkham v.

Société Air France, 429 F.3d 288, 291 (D.C. Cir. 2005).

However, “we review the district court’s findings of fact—

including facts that bear upon immunity and therefore upon

jurisdiction—for clear error; hence, . . . once the facts have

been settled, we decide de novo whether those facts are

sufficient to divest the foreign sovereign of its immunity.”

Price v. Socialist People’s Libyan Arab Jamahiriya, 389 F.3d

192, 197 (D.C. Cir. 2004). We apply the same analytical

approach to an international organization’s claim of

immunity.

In the context of the IOIA, we have noted that “immunity,

where justly invoked, [] shields defendants not only from the

consequences of litigation’s results but also from the burden

of defending . . . .” Tuck v. Pan Am. Health Org., 668 F.2d

547, 549 (D.C. Cir. 1981). The sweep of the Fund’s

immunity is broader than the protection afforded by the

IOIA’s aegis alone. Under the dual protections conferred by

the Fund’s Articles of Agreement and the IOIA, “[t]he Fund .

. . enjoy[s] immunity from every form of judicial process

except to the extent that it expressly waives its immunity for

the purpose of any proceedings or by the terms of any

contract.” Articles of Agreement, Art. IX § 3; IOIA, Pub. L.

No. 79-291, 59 Stat. 669 (1945). Nyambal does not dispute

that the Fund is immune absent express waiver under its

Articles of Agreement. In light of the Third Circuit’s decision

in OSS Nokalva, Inc. v. European Space Agency, 617 F.3d

756 (3d Cir. 2010), he nonetheless requests this Court to “re-

visit” its decision in Atkinson v. Inter-American Dev. Bank,

156 F.3d 1335 (D.C. Cir. 1998), and narrow the scope of

IOIA sovereign immunity for international organizations. We

decline to do so. Atkinson remains vigorous as Circuit law;

international organizations “enjoy the same immunity from

suit and every form of judicial process as is enjoyed by

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foreign governments, except to the extent that such

organizations [] expressly waive their immunity.” 156 F.3d at

1337. See Critical Mass Energy Project v. Nuclear

Regulatory Comm’n, 975 F.2d 871, 876 (D.C. Cir. 1992)

(“[Prior] decisions . . . bind the circuit unless and until

overturned by the court en banc or by Higher Authority.”).

The Fund argues that its multi-layered immunities warrant

blanket protection from effectively all forms of jurisdictional

discovery. Such a result is unwarranted; though unusually

expansive, the Fund’s immunity may be defeated by a

showing of express waiver. The Fund’s entitlement . . . to

immunity from suit therefore remains “a critical preliminary

determination” and the parties “must be afforded a fair

opportunity to define issues of fact and law, and to submit

evidence necessary to the resolution of the issues.” Foremost-

McKesson, Inc., 905 F.2d at 449. While jurisdictional

discovery may be warranted only in comparatively rare

circumstances, it is appropriate where a plaintiff articulates a

“specific, well-founded allegation that an express waiver

exists.” Polak v. Int’l Monetary Fund, 657 F. Supp. 2d 116,

122 (D.D.C. 2009); see Jacobs v. Vrobel, 724 F.3d 217, 221

(D.C. Cir. 2013) (looking to the “plausibility” of allegations,

in the context of a waiver of immunity under the Federal Tort

Claims Act).

Nyambal stumbles at this threshold hurdle of plausibility.

“[D]iscovery should be ordered circumspectly and only to

verify allegations of specific facts crucial to an immunity

determination.” First City, Texas-Houston, N.A. v. Rafidain

Bank, 150 F.3d 172, 176 (2d Cir. 1998). Yet Nyambal relied

below upon little more than bare assertion in support of his

initial requests for discovery; for example, simply speculating

that the Credit Union and security service contracts would

“undoubtedly address the [Fund’s] liability for actions arising

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from acts and occurrences related to” public transactions

performed under the contract without offering any specific,

non-conclusory factual allegations to explain why such

contracts could plausibly be thought to incorporate an express

waiver of the Fund’s immunity as to third party invitees.

Plaintiff’s Response to Motion to Dismiss at 6, Nyambal v.

Int’l Monetary Fund, No. 1:12-cv-01037 (D.D.C. Dec. 28,

2012). Because Nyambal’s assertions amount to mere

“conjecture and surmise,” they cannot provide sufficient

support to justify jurisdictional discovery. Crist v. Republic

of Turkey, 995 F. Supp. 5, 13 (D.D.C. 1998).

Moreover, the Fund’s subsequent voluntary disclosure of

the Credit Union contract conclusively resolved any question

of waiver. 1 Article 13.1 of the contract provides that the Fund

“shall not be liable for any personal injury to or damage to . . .

[the Credit Union’s] business invitees, . . . customers, clients,

[or] . . . guests . . . unless such personal injury or damage to

property resulted solely from the negligence or willful

misconduct of the Landlord.” Brief of Defendant-Appellant

at 48. Nyambal postulates that the “unless” sub-clause is an

express waiver that directly contradicts the contract’s Article

28 blanket non-waiver provision. He therefore argues that the

Fund’s voluntary release of the contract did not eliminate the

need for further discovery because, in his view, the contract

“raise[s] more questions than [it] answer[s].” Brief of

Plaintiff-Appellee at 18–20, Nyambal v. Int’l Monetary Fund,

No. 13-7115 (D.C. Cir. June 4, 2014).

Nothing in Article 13.1 of the Credit Union contract,

however, directly contradicts Article 28’s broad language of

1

The Fund’s contract with the security services firm was also

voluntarily furnished. Waiver under that contract is not directly

contested on appeal.

9

non-waiver. Indeed, the thrust of the article’s intent is clear

from its title: it deals with “limitations o[n] liability” to the

Fund under the contract. The article’s “unless” sub-clause

can readily be interpreted as a limitation on waiver where the

Fund has already expressly waived its immunity, rather than a

curiously obscure form of express waiver buried in a clause

intended to limit the scope of liability owed by the Fund.

See 17A Am. Jur. 2d Contracts § 384 (“No contract provision

should be construed as being in conflict with another unless

no other reasonable interpretation is possible.”). Read in

context, the “unless” sub-clause of Article 13.1 is simply

insufficient to be interpreted as constituting a potential

express waiver warranting further discovery. Moreover, the

Fund’s affidavits, e.g., Lin Aff. at ¶¶ 3–4, and the

unambiguous language of Article 28’s contractual non-waiver

clause require that any waiver of immunity occur through a

“decision of the Executive Board of the International

Monetary Fund,” Patterson Aff. at ¶ 3 (quoting Article 28).

Nyambal has not raised any specific, plausible assertion that

the contracts contain an express waiver; or that the Board

itself has actually ratified any purported contractual waiver;

nor has he otherwise suggested that an express waiver can

occur in the absence of such ratification. 2 Consequently, the

Fund’s voluntary disclosure of the contested contracts did

obviate the need for any further discovery.

Nyambal raises a secondary argument that the Credit

Union’s Article 15 indemnification clause is inexplicable

2

In addition to the Board ratification requirement of Article 28 of

the Credit Union contract, the Fund’s affidavits assert any

purported waiver is inoperative absent ratification under the Fund’s

Articles of Agreement and its By-Laws. Lin Aff. at ¶ 3. Whether

an express waiver of immunity in a contract signed by an executive

officer of the Fund would be nullified by the absence of Board

ratification is a question we leave for another day.

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absent an intention for the Fund to waive its immunity.

Nyambal reasons that the contract thereby creates a

“framework” to allow the Fund to expressly waive its

immunity in the normal course of business. But a

“framework” permitting the possibility of waiver is not a

“specific, well-founded allegation that an express waiver

[actually] exists.” Polak, 657 F. Supp. 2d at 122. It is

undisputed that the Fund “could” waive its immunities.

Nyambal’s framework theory consists of nothing more than

unsupported speculation that the Fund “may” have done so.

IV

For the foregoing reasons we reverse the district court’s

orders permitting jurisdictional discovery. We remand for

further proceedings consistent with this decision.

So ordered.