Zuza v. Office of the High Representative

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted March 2, 2017 Decided May 30, 2017

No. 16–7027

ZORAN ZUZA,

APPELLANT

v.

OFFICE OF THE HIGH REPRESENTATIVE, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:14–cv–01099)

Zoran Zuza, pro se, was on brief for the appellant.

Mark A. Cymrot was on brief for the appellees.

Benjamin C. Mizer, Principal Deputy Assistant Attorney

General at the time the brief was filed, United States

Department of Justice, H. Thomas Byron, III, and Edward

Himmelfarb, Attorneys, were on brief as amicus curiae in

support of the appellees.

Before: HENDERSON, TATEL and SRINIVASAN, Circuit

Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

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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 conclude 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

Herzegovina 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 peace 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, the 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 and Herzegovina.” Id.

at 37. The measures include “actions against persons holding

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public office or officials . . . who are found by the High

Representative to be in violation of legal commitments 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

political 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), 22 U.S.C.

§§ 288 et seq. As the court explained, the IOIA generally

extends immunity to an international organization, its officers

and its employees, if the United States participates in it and if

the President has designated it as entitled to immunity through

an executive order. 22 U.S.C. §§ 288, 288a(b), 288d(b).1 To

extend such protection to the OHR, the Congress in 2010

enacted legislation making the OHR immune “in the same

manner, to the same extent, and subject to the same conditions”

as an international organization in which the United States

participates. Extending Immunities to the Office of the High

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IOIA immunity is absolute. Atkinson v. Inter-Am. Dev. Bank,

156 F.3d 1335, 1341–42 (D.C. Cir. 1998). Nevertheless, it comes

subject to two sources of limitation: An organization may expressly

waive its immunity and the President may limit or modify an

organization’s immunity under certain circumstances. Mendaro v.

World Bank, 717 F.2d 610, 613–14 (D.C. Cir. 1983).

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Representative in Bosnia and Herzegovina and the

International Civilian Office in Kosovo Act of 2010, sec. 2,

§ 17, 124 Stat. 1260 (2010) (codified at 22 U.S.C. § 288f-7).

On March 8, 2011, the President issued an Executive Order

formally extending IOIA immunity to the OHR, its officers and

its employees. Exec. Order No. 13,568, 76 Fed. Reg. 13,497

(Mar. 8, 2011). Given this history, the district court readily

concluded OHR, Ashdown and Inzko were immune from

Zuza’s suit, which it accordingly dismissed for lack of subject

matter jurisdiction.

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 precedent is

fulfilled. 22 U.S.C. § 288e(a). The first is met when the person

seeking immunity “ha[s] been duly notified to and accepted by

the Secretary of State as a representative, officer, or

employee[.]” Id.2 The district court ordered supplemental

briefing and requested a statement of interest from the United

States. The United States responded that Ashdown and Inzko

had been notified to and accepted by the Secretary of State

(Secretary) and thus qualified for immunity.

The defendants and the United States submitted four

letters substantiating Ashdown’s and Inzko’s notification and

acceptance. The first was a June 2011 letter from Inzko to then-

Secretary Hillary Clinton, notifying her of nearly three dozen

2

The other two are fulfilled when a person “ha[s] been

designated by the Secretary of State, prior to formal notification and

acceptance, as a prospective representative, officer, or employee” or

“is a member of the family or suite, or servant, of one of the

foregoing accepted or designated representatives, officers, or

employees.” 22 U.S.C. § 288e(a).

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OHR officers and employees. That list included Inzko but not

Ashdown. The other three letters were all dated 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

Seagroves, 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.

II. ANALYSIS

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, even 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

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It is of no moment that the district court addressed this issue

in denying Zuza’s Rule 59(e) reconsideration motion. Although we

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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.” 22 U.S.C. § 288d(b).

Legal process is an expansive term. It refers broadly to “[t]he

proceedings in any action.” BLACK’S LAW DICTIONARY 1399

(10th ed. 2014); see WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY, UNABRIDGED 1808 (1993) (defining process to

include “the course of procedure in a judicial action or in a suit

in litigation”). As we have explained, IOIA immunity, “where

justly invoked, properly shields defendants not only from the

consequences of litigation’s results but also from the burden of

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

547, 549 (D.C. Cir. 1981) (internal quotation marks omitted).

For these reasons, IOIA immunity does not operate only at a

lawsuit’s outset; it compels prompt dismissal even when it

attaches mid-litigation.

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 to 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

ordinarily review a Rule 59(e) motion’s denial for abuse of

discretion, our review is de novo when the district court considers

and rejects a legal argument. E.g., Dyson v. District of Columbia,

710 F.3d 415, 420 (D.C. Cir. 2013).

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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 when 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 adjudicate 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[.]”

22 U.S.C. § 288e(a). Under these circumstances, they are

“immune from suit and legal process relating to acts performed

by them in their official capacity and falling within their

functions as such representatives, officers, or employees[.]” Id.

§ 288d(b). Accordingly, we affirm the district court’s

judgment.

So ordered.