Smith v. World Bank Group

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________

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ADRIENNE SMITH, )

)

Plaintiff, )

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v. ) Civ. Action No. 14-728 (EGS)

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WORLD BANK GROUP, and JIM YONG )

KIM, President, World Bank Group, )

)

Defendants. )

__________________________________)

MEMORANDUM OPINION

Adrienne Smith brings this lawsuit alleging that the World

Bank and its President, Jim Yong Kim, discriminated against her

during the course of her employment. Ms. Smith appeared to have

properly served the defendants in September 2014, but the

defendants did not timely respond to the Complaint and the Clerk

of Court entered default against them. Days later, before any

motion for default judgment was filed, the defendants moved to

vacate the entry of default and to dismiss this case for lack of

jurisdiction. Upon consideration of the motions, the responses

and replies thereto, the applicable law, and the entire record,

the Court GRANTS the defendants’ motions, VACATES the default,

and DISMISSES this case.

I. Background

Ms. Smith worked for the World Bank from 1997 to 2012. See

Compl., ECF No. 1 at 2. Ms. Smith’s precise allegations of

discrimination are not clear from the Complaint, although she

alleges that “World Bank senior personnel managers resorted to

‘Gestapo,’ ‘Shang hai’ style tactics and threats against

Plaintiff.” Id. at 10; see also id. at 14 (alleging that a

manager, for discriminatory reasons, “targeted Plaintiff” and

sought to have her removed from her position). Ms. Smith also

makes more generalized allegations regarding the World Bank,

including that its “internal conflict system . . . has failed

miserably to provide due process to Black and African staff.”

Id. at 6; see also id. at 7–8.

In July 2012, Ms. Smith filed a complaint with the Equal

Employment Opportunity Commission (“EEOC”), alleging that the

World Bank had discriminated against her during the course of

her employment. See id. at 2. Ms. Smith’s complaint was

dismissed by the EEOC for lack of jurisdiction in January 2014.

See id.

Ms. Smith filed this lawsuit on April 25, 2014 “as the next

step” following the denial of her EEOC Complaint. See id. at 1.

On August 4, 2014, the Court entered an Order noting that the

deadline for Ms. Smith to serve process on the defendants was

approaching. See Order, ECF No. 3 at 1. The Court directed her

to do so by August 25, 2014, or risk dismissal of the case. See

id. On August 18, 2014, Ms. Smith filed an affidavit that

appeared to be partly responsive to the Court’s Order. See Aff.,

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ECF No. 4. The Court directed Ms. Smith to provide supplemental

materials sufficient to demonstrate that the defendants had been

properly served by no later than September 2, 2014. See Minute

Order of August 21, 2014.

Ms. Smith submitted in September 2014 a document that appeared

to show that she had served the defendants on September 8, 2014,

which produced a deadline of September 29, 2014 for their

response to the Complaint. See Minute Order of October 16, 2014.

Because no response had been filed by October 16, and Ms. Smith

had not further prosecuted her case, the Court entered a Minute

Order directing Ms. Smith to “show cause why this case should

not be dismissed for her failure to comply with Federal Rule of

Civil Procedure 55.” Id. (emphasis omitted).

On October 21, 2014, Ms. Smith submitted an affidavit seeking

entry of default. See Aff. for Default, ECF No. 9. The Clerk

entered default on October 22, 2014. See Entry of Default, ECF

No. 10. Six days later, the defendants moved to vacate that

entry of default and to dismiss the case for lack of

jurisdiction. See Mot. to Vacate, ECF No. 11; Mot. to Dismiss,

ECF No. 12. The Court then entered an Order, citing the D.C.

Circuit’s decisions in Fox v. Strickland, 837 F.2d 507 (D.C.

Cir. 1988) and Neal v. Kelly, 963 F.2d 453 (D.C. Cir. 1992),

which directed Ms. Smith to respond to the motions by no later

than November 28, 2014. See Order, ECF No. 13 at 2. Ms. Smith’s

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opposition brief was timely filed, Pl.’s Opp., ECF No. 15, and

the defendants filed their reply brief on December 8, 2014. See

Def.’s Reply, ECF No. 16. Ms. Smith subsequently moved for leave

to file a surreply. Mot. for Leave, ECF No. 17. The Court GRANTS

that unopposed motion and considers the surreply in adjudicating

the pending motions.1

II. Standard of Review

A. Vacating Entry of Default

Pursuant to Federal Rule of Civil Procedure 55(a), “[w]hen a

party against whom a judgment for affirmative relief is sought

has failed to plead or otherwise defend, and that failure is

shown by affidavit or otherwise, the clerk must enter the

party’s default.” The Court may later “set aside an entry of

default for good cause.” Fed. R. Civ. P. 55(c). Generally, a

district court considering whether to set aside an entry of

default must consider “whether (1) the default was willful, (2)

a set-aside would prejudice plaintiff, and (3) the alleged

defense was meritorious.” Jackson v. Beech, 636 F.2d 831, 836

(D.C. Cir. 1980) (quotation marks omitted). Where a defendant is

immune from suit, however, “the Clerk’s subsequent entry of a

1 On March 24, 2015, Ms. Smith filed a “request for emergency

relief,” which appears to request expedited consideration of her

claims. See Mot. for Emergency Relief, ECF No. 19. In light of

the Court’s ruling that it lacks jurisdiction over this case,

that motion is DENIED AS MOOT.

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default . . . [is] void from the outset for lack of

jurisdiction.” Garcia v. Sebelius, 919 F. Supp. 2d 43, 46

(D.D.C. 2013) (citing Swarna v. Al-Awadi, 622 F.3d 123, 141 (2d

Cir. 2010)). “[W]ithout a valid entry of default in the first

instance, there is nothing for the Court to vacate.” Id.

B. Rule 12(b)(1)

A federal district court may only hear a claim over which it

has subject matter jurisdiction; therefore, a Rule 12(b)(1)

motion for dismissal is a threshold challenge to a court’s

jurisdiction. On a motion to dismiss for lack of subject matter

jurisdiction, the plaintiff bears the burden of establishing

that the Court has jurisdiction. Lujan v. Defenders of Wildlife,

504 U.S. 555, 561 (1992). In evaluating the motion, the Court

must accept all of the factual allegations in the complaint as

true and give the plaintiff the benefit of all inferences that

can be drawn from the facts alleged. See Thomas v. Principi, 394

F.3d 970, 972 (D.C. Cir. 2005). The Court, however, is “not

required . . . to accept inferences unsupported by the facts

alleged or legal conclusions that are cast as factual

allegations.” Cartwright Int’l Van Lines, Inc. v. Doan, 525 F.

Supp. 2d 187, 193 (D.D.C. 2007) (quotation marks omitted).

III. Analysis

Although the defendants have filed separate motions for

vacatur of the entry of default and for dismissal of this case,

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the motions focus on the same issue: Whether the World Bank and

Mr. Kim are immune from this suit. If they are, the entry of

default would be void, Garcia, 919 F. Supp. 2d at 46, and the

case would be subject to dismissal. See Mendaro v. World Bank,

717 F.2d 610, 614 (D.C. Cir. 1983). If they are not immune, the

case may proceed.

The International Organizations Immunities Act, 22 U.S.C. §

288a, provides that:

International organizations, their property and their

assets, wherever located, and by whomsoever held, shall

enjoy the same immunity from suit and every form of

judicial process as is enjoyed by foreign governments,

except to the extent that such organizations may

expressly waive their immunity for the purpose of any

proceedings or by the terms of any contract.

Id. § 288a(b). Executive Order 9751 makes the World Bank subject

to this immunity. See Exec. Order No. 9751, 11 Fed. Reg. 7713

(July 13, 1946). “There are only two sources of limitation to

the immunity: (1) the organization itself may waive its immunity

and (2) the President may specifically limit the organization’s

immunities when he selects the organization as one entitled to

enjoy the [Act’s] privileges and immunities.” Dujardin v. Int’l

Bank for Reconstruction & Dev., 9 F. App’x 19, 20 (D.C. Cir.

2001).

The World Bank has waived its immunity narrowly, only for

“actions relating to its external activities and contracts, and

not the internal administration of its civil servants.” Mendaro,

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717 F.2d at 621; see also Atkinson v. Inter-American Dev. Bank,

156 F.3d 1335, 1338 (D.C. Cir. 1998) (addressing a similar

waiver: “[T]he Bank’s immunity should be construed as not waived

unless the particular type of suit would further the Bank’s

objectives.”) (emphasis in original). As a consequence, the

World Bank has repeatedly been found not to have waived its

immunity in connection with internal employment-related

lawsuits. See, e.g., Mendaro, 717 F.2d 610 (employee’s Title VII

claim); Dujardin, 9 F. App’x at 20 (employee’s defamation

claim); Hudes v. Aenta Life Ins. Co., 806 F. Supp. 2d 180, 188

(D.D.C. 2011) (wrongful-termination claim).

Ms. Smith’s claims fall within this immunity. As another Judge

of this Court stated in finding that a claim regarding withheld

employee benefits could not proceed against the World Bank,

“[n]o matter how approached, this case cannot be characterized

as anything other than a suit arising out of the Bank’s

relationship with its own employees.” Chiriboga v. Int’l Bank

for Reconstruction & Dev., 616 F. Supp. 963, 967 (D.D.C. 1985)

(quotation marks and alteration omitted). Ms. Smith’s assertion

that she suffered discrimination in connection with her

employment is similarly subject to no characterization but that

of an employee-relations lawsuit. For that reason, the Court

finds that the World Bank has not waived its immunity from Ms.

Smith’s claims.

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Nor is there any indication that the President has directed

that the World Bank’s immunity be waived in a manner that would

permit Ms. Smith’s claims to proceed. The Executive Order

subjecting the World Bank to the immunity grant of 22 U.S.C. §

288a contained no such limitation. See Exec. Order No. 9751, 11

Fed. Reg. 7713 (July 13, 1946). Nor has Ms. Smith pointed the

Court to any other action or legal authority that might effect

such a waiver. Accordingly, the World Bank is immune from suit

for Ms. Smith’s claims.2

2 Ms. Smith alluded in her pleadings to various legal sources,

although she did not clearly identify those sources, and she

appears to concede that they did not create an additional waiver

of the World Bank’s immunity. See Compl., ECF No. 1 at 3

(requesting “external due process of mediation through the 2011

United States Appropriations Act, the Lugar/Leahy Act and the

Equal Employment Opportunity Commission (EEOC) Agreement to

Mediate”); id. at 6 (describing the 2011 “United States

Consolidated Appropriations Acts and the Lugar/Leahy Act” as

“not advocat[ing] against jurisdictional immunity for

organizations but express[ing] the clear legislative intention

that multilateral Bank employees must be able to seek due

process through alternative, external legal means such as

mediation or arbitration”); Pl.’s Opp., ECF No. 15 at 7 (“the

United States Consolidated Appropriation Act [of] 2012 . . .

requires the U.S. government to withhold approval for the Bank’s

capital increase until it has made substantial progress in

providing external, independent judicial access for staff. . . .

The intent of the Lugar-Leahy Amendment is to introduce an

independent, fair grievance resolutions system as an

international best practice without infringing on the World

Bank’s immunity”) (emphasis in original). To the extent that Ms.

Smith intended to rely on these provisions as a basis for

finding a waiver of immunity, her failure to identify the

relevant legal provisions combined with her admission at times

that those provisions do not affect the World Bank’s immunity,

renders such an argument impossible to evaluate. To the extent

Ms. Smith intended to rely on the appropriations bills and the

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For similar reasons, the World Bank’s President, Mr. Kim, is

immune from suit regarding these claims. Mr. Kim’s immunity is

governed by 22 U.S.C. § 288d(b), which states:

[O]fficers and employees of [international

organizations] shall be immune from suit and legal

process relating to acts performed by them in their

official capacity and falling within their functions .

. . except insofar as such immunity may be waived by the

. . . international organization concerned.

Ms. Smith has pointed to no basis for a finding that the World

Bank has waived Mr. Kim’s immunity in any way that would render

it less than the immunity reserved to the Bank. Because any

involvement by Mr. Kim in the employment actions giving rise to

Ms. Smith’s claims would relate to “acts performed by [him] in

[his] official capacity and falling within [his] functions,”

id., Mr. Kim is immune from Ms. Smith’s claims. Cf. Tuck v. Pan

Am. Health Org., 668 F.2d 547, 550 (D.C. Cir. 1981) (director of

the Pan-American Health Organization was immune under 22 U.S.C.

§ 288d “[t]o the extent that the acts alleged in the complaint

relate to [his] functions” as director).

IV. Conclusion

Because the Court finds that Mr. Kim and the World Bank are

immune from Ms. Smith’s claims, the Court must VACATE the entry

“Lugar-Leahy Amendment” as supporting an independent cause of

action entitling her to mediation or arbitration, she has failed

to plead such a claim with any sufficient particularity, Fed. R.

Civ. P. 8(a), and, in any event, the bank’s immunity would

appear to apply equally to such a cause of action.

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of default in this case as void. See Garcia, 919 F. Supp. 2d at

46. Moreover, the defendants’ immunity renders this Court

without jurisdiction, so the case must be DISMISSED. In light of

the Court’s lack of jurisdiction over this case, Ms. Smith’s

motion for emergency relief is DENIED AS MOOT. An appropriate

Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan

United States District Judge

April 21, 2015

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