Amicus Curiae Brief — Marie Laventure, et al., Petitioners v. United Nations, et al.

NO. 18-1427

In the Supreme Court of the United States

MARIE LAVENTURE, ET AL.,

Petitioners,

v.

UNITED NATIONS, ET AL.,

Respondents.

On a Petition for Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF OF AMICUS CURIAE

HEAR THEIR CRIES—STOP CHILD RAPE IN AID

IN SUPPORT OF THE PETITION FOR CERTIORARI

EDWARD PATRICK FLAHERTY

COUNSEL FOR AMICUS CURIAE

SCHWAB, FLAHERTY & ASSOCIÉS

7, RUE DE CANDOLLE

CH-1205 GENEVA

SWITZERLAND

+4122-840-5000

FLAHERTY@SFALEGAL.COM

JUNE 6, 2019

SUPREME COURT PRESS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

STATEMENT OF THE FACTS ................................. 2

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT ............................................................... 6

CONCLUSION.......................................................... 20

ii

TABLE OF AUTHORITIES

TABLE OF AUTHORITIES

CASES

Page

Acevedo v. Surles,

778 F. Supp. 179 (S.D.N.Y. 1991) ........................ 8

Armstrong v. Manzo,

380 U.S. 545, 85 S.Ct. 1187 (1965) ........................ 8

Boddie v. Connecticut,

401 U.S. 371, 91 S.Ct. 780 (1971) ................. 10, 11

Bond v. United States,

174 S.Ct. 2077 (2014) .................................. 18, 19

Brown v. Stone,

66 F. Supp. 2d 412 (E.D.N.Y. 1999) ................ 7, 8

Brzak v. United Nations,

597 F. 3d 107 (2d Cir. 2010) ........................ 13, 14

Christopher v. Harbury,

536 U.S. 403, 122 S.Ct. 2179 (2002) ................... 7

District of Columbia v. Heller,

554 U.S. 570, 128 S.Ct. 2783 (2008) .................... 14

Dostal v. Haig,

652 F.2d 173 (D.C. Cir. 1981) ......................... 7, 14

Fed. Hous. Admin. v. Bureau,

309 U.S. 242, 60 S.Ct. 488 (1940) ................. 7, 15

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

Bank, 150 F.3d 172 (2d Cir. 1998) .................... 19

Forrester v. White,

484 U.S. 219, 108 S.Ct. 538 (1988) ................... 17

George v. United Nations,

834 F.3d 88 (2d Cir. 2016) ........................... 13, 14

iii

TABLE OF AUTHORITIES—Continued

Page

Griffin v. Illinois,

351 U.S. 12, 76 S.Ct. 585 (1955) ......................... 8

Harlow v. Fitzgerald,

457 U.S. 800, 102 S.Ct. 2727 (1982) .......... 7, 14, 17

Jam v. International Finance Corp.,

860 F.3d 703 (D.C. Cir. 2017) ........................ 5, 21

Lassiter v. Dep’t of Social

Services of Durham County,

452 U.S. 18, 101 S.Ct. 2153 (1981) ..................... 9

Lindsey v. Normet,

405 U.S. 56, 92 S.Ct. 862 (1972) ......................... 9

Little v. Streater,

452 U.S. 1, 101 S.Ct. 2202 (1981) ....................... 9

Logan v. Zimmerman Brush Co.,

455 U.S. 422, 102 S.Ct. 1148 (1982) ................... 8

M.L.B. v. S.L.J.,

519 U.S. 102, 117 S.Ct. 555 (1996) ............... 8, 13

Mayer v. Chicago,

404 U.S. 189, 92 S.Ct. 410 (1971) ....................... 9

Missouri v. Holland,

252 U.S. 416 (1920) ........................................... 18

Nat’l City Bank v. Republic of China,

348 U.S. 356, 75 S.Ct. 423 (1955) .................... 7, 15

Nixon v. Fitzgerald,

457 U.S. 731, 102 S.Ct. 2690 (1982) ................. 17

Reid v. Covert,

354 U.S. 1 (1957) ................................................. 19

iv

TABLE OF AUTHORITIES—Continued

Page

Tennessee v. Lane,

541 U.S. 509, 124 S.Ct. 1978 (2004) .............. 9, 16

United States v. Bahel,

662 F.3d 610 (2d Cir. 2011) .................................. 6

Webster v. Doe,

486 U.S. 592, 108 S.Ct. 2047 (1988) ................... 9

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ............................................... 7, 8

U.S. Const. amend. V ................................................... 7

U.S. Const. amend. XIV .............................................. 7

U.S. Const. Art. I, § 8 .............................................. 18

U.S. Const. Art. IV ....................................................... 7

STATUTES

Civil Service Reform Act,

5 U.S.C. § 7101, et seq....................................... 16

Federal Tort Claims Act,

28 USC § 1346(b) ................................................ 16

Foreign Sovereignties Immunity

Act of 1976 ......................................................... 21

International Organization Immunity

Act of 1945 ........................................................... 5

JUDICIAL RULES

Sup.Ct. R. 37(2) ........................................................... 1

v

TABLE OF AUTHORITIES—Continued

Page

INTERNATIONAL LAW

Agreement Between the United Nations and

the Government of Haiti Concerning the

Status of the United Nations Operations

in Haiti, July 9, 2004, 2271 U.N.T.S. 235 ...... 3, 4

Chemical Weapons Convention

Implementation Act of 1998.............................. 18

Convention on the Privileges and Immunities

of the United Nations, 21 U.S.T. § 1418 . 6, 15, 20

U.N. General Assembly Report 2006, U.N.

Document number A/60/980 ................................. 6

OTHER AUTHORITIES

Farhana Choudury, The United Nations

Immunity Regime: Seeking a Balance

Between Unfettered Protection and

Accountability, Georgetown Law Review,

https://georgetownlawjournal.org/articles/

17/united-nations-immunity-regime/pdf ............ 4

Homepage for Amicus Curiae, Hear Their

Cries—Stop Child Rape in Aid,

www.heartheircries.org ....................................... 1

1

INTEREST OF AMICUS CURIAE

This Brief of Amicus Curiae is respectfully submitted pursuant to Supreme Court Rule 37(2). It is

filed in support of the Petition for Writ of Certiorari.1

Hear Their Cries—Stop Child Rape in Aid

(hereinafter “HTC” or “Hear Their Cries”—www.

heartheircries.org) is a non-profit association based

in Geneva, Switzerland. HTC works to ensure international organizations, including the United Nations,

are held accountable for their conduct, focusing on

the international aid sector, where sexual abuse of

women and children by aid workers and peacekeepers

is rampant. HTC seeks the complete eradication of

such abuse. It works with governments, NGOs and

U.N. agencies to implement training, prevention,

detection and prosecution of sex abusers. The immunity afforded international aid organizations today,

including the United Nations, promotes widespread

sexual abuse and injury of the world’s most vulnerable

populations.

1 No counsel for a party authored this brief in whole or in part,

and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than the Amicus Curiae, or their counsel, made a

monetary contribution to its preparation or submission. Counsel

of Record for all parties were notified by Amicus Curiae of its

intent to file more than 10 days prior to the due date. Petitioners

consented to amicus submissions by e-mail. The Solicitor General

on behalf of Respondents also consented to the filing of this

Brief of Amicus Curiae by letter dated May 22, 2019.

2

The current state of international organization (IO)

immunity jurisprudence is a mass of confusion,

encouraging irresponsibility in humanitarian operations, leading aid organizations towards deception, dishonesty and impunity. HTC submits that it allows IO

staff to operate without consequence from their bad

acts causing untold harm to the most vulnerable

around the world. Affording international organizations,

like the United Nations, absolute immunity (greater

than that afforded to sovereign states) repudiates

international moral principles and threatens United

States sovereignty as well as the United States’ ability

to protect its citizens from wrongdoing.

STATEMENT OF THE FACTS

Petitioners are residents of the United States

and citizens of Haiti, who were sickened, or are relatives

of those who died, because of the Haiti cholera outbreak

in late 2010. Cholera was brought to Haiti by United

Nations Nepalese peacekeeping forces. It caused severe

illness to hundreds of thousands and at least 10,000

deaths. These facts are generally not in dispute.

Petitioners—individually, on behalf of the estates

of their deceased relatives, and as representatives of

a larger class of individuals who died in or who were

infected by the cholera outbreak—have sued the United

Nations and its various components and representatives, seeking to recover damages, injunctive relief,

and other equitable remedies.

3

Dismissing Petitioners’ claims, the District Court

rejected their immunity waiver argument holding the

United Nations benefits from immunity, and there

had been no waiver, and therefore the court lacked

subject matter jurisdiction to entertain the claim.

The Second Circuit for the United States Court of

Appeals affirmed.

As a non-profit, human rights organization, HTC

files the instant Brief in support of the Petition for

Certiorari. Granting the United Nations immunity is

unlawful as it violates the U.S. Constitution. Thus,

Petitioners’ claims must be permitted to continue

because the immunity the U.N. enjoys from U.S. law

and court proceedings is itself unlawful.

SUMMARY OF ARGUMENT

Through its grossly negligent acts in Haiti, the

United Nations left a staggering 10,000 dead and

nearly one (1) million infected or seriously ill with the

cholera virus. Adding insult to injury, the U.N. refuses

to set up the “standing claims commissions” mandated

by the applicable Status of Forces Agreement.2 This

demonstrates the United Nations will never permit

innocent third parties any redress for damages result-

2 Agreement Between the United Nations and the Government

of Haiti Concerning the Status of the United Nations Operations

in Haiti, July 9, 2004, 2271 U.N.T.S. 235 (“SOFA”).

4

ing from its tortious actions, avoiding liability at all

costs.3

To allow the United Nations and other international organizations absolute immunity, beyond that of

foreign governments, and which bars Petitioners’ claims

for even preliminary discovery due to lack of subject

matter jurisdiction, creates a lawless environment,

generating resentment, where impunity could lead to

violent reprisal. It further allows nefarious individuals, corporations, and governments to hide behind

the veil of multinational, altruistic organizations to perpetrate not only acts of misfeasance, as with the spread

of cholera in Haiti, but also heinous acts of sexual

abuse of some of the world’s most vulnerable populations in the name of humanitarianism.

Here Petitioners simply want their day court. They

are victims of the 2010 cholera outbreak, a result of

the United Nations’ grossly negligent contamination

of the drinking water of hundreds of thousands of

innocent Haitians.

Further, United States Courts denied not only

the Petitioners’ fundamental right to access redress

in courts, but that of other victims of wrongdoing or

negligence committed by international organizations,

as are highlighted in the argument section of this

brief. This denial is in direct conflict with Constitutional principles of Strict Scrutiny. Federal Courts

3 SOFA, art. VIII, ¶ 55. It is likely that the U.N. expressly waived

its immunity through the SOFA between itself and Haiti. See

Farhana Choudury, The United Nations Immunity Regime:

Seeking a Balance Between Unfettered Protection and Accountability, Georgetown Law Review, page 740 at https://georgetown

lawjournal.org/articles/17/united-nations-immunity-regime/pdf.

5

have been abridging rights of Petitioners in the most

broadly tailored way possible: absolute denial of

redress.

Notably in Jam v. International Finance Corp.,

860 F.3d 703 (D.C. Cir. 2017), the D.C. Circuit held

the International Finance Corporation (“IFC”), headquartered in Washington, D.C., was immune from

civil liability in a case arising out of an IFC-funded

project. In Jam, the D.C. Circuit struggled to determine the exact extent of IFC immunity. This Court

ultimately held that IFC’s immunity was restrictive

rather than absolute, like that enjoyed by sovereign

states under the Foreign Sovereignties Immunity Act

of 1976. IFC immunity comes from the International

Organization Immunity Act of 1945,4 but the UN’s

immunity is afforded by the General Convention on

Privileges and Immunities, ratified by the U.S. in

1972. Here the outcome for Petitioners is the same:

they are denied access to redress in United States

Courts.

In any case, the source of the immunity is

irrelevant here. Such immunity is unconstitutional

whether granted by Congressional act or a ratified

treaty. We urge this Court is to hear the present appeal

completing the work started in Jam, finally settling

the extent and validity of immunities asserted by all

international organizations operating or domiciled

within the United States.

Alternatively, United Nations immunity for serious

crimes does not exist anywhere. In 2006, the United

Nations recognized in a U.N. General Assembly

4 Jam, Infra.

6

Report 2006 (UN Document number A/60/980) at paragraph 21 that many acts of criminal conduct are not

protected by U.N. immunity.5 The intentional and/or

reckless conduct by U.N. Peacekeepers, allowing

untreated sewerage containing cholera to enter the

drinking water of hundreds of thousands of innocent

third parties amounts to criminal conduct, not protected by any immunity grant. In addition, in the

United States, a grant of immunity for such criminal

conduct is simply unconstitutional. Since there is no

immunity, questions of the immunity’s waiver are

irrelevant. Thus, Petitioners are entitled to continue

their action.

ARGUMENT

At issue is whether the United Nations enjoys

immunity from lawsuits in U.S. courts, like the instant

action brought by Petitioners. The United Nations’

putative immunity stems from Article II Section 2

of the Convention on the Privileges and Immunities

of the United Nations (“CPIUN”). See 21 U.S.T. 1418;

United States v. Bahel, 662 F.3d 610, 623-24 (2d Cir.

2011). CPIUN provides that the United Nations “shall

enjoy immunity from every form of legal process except

insofar as in any particular case it has expressly

waived its immunity.” 21 U.S.T. 1418, art. II, § 2.

Certain types of immunities are so fundamental

and inherent they form part of the fabric of the

American legal system. See Harlow v. Fitzgerald, 457

5 U.N. Document number, A/60/980, at paragraph 21.

7

U.S. 800, 810-11, 102 S.Ct. 2727, 2734-35 (1982) (recognizing the existence of “judicial, prosecutorial, and legislative functions” to which “absolute immunity” attaches,

but also noting that protection arising under those

immunities extends “no further than its justification

would warranty”); Dostal v. Haig, 652 F.2d 173, 176-77

(D.C. Cir. 1981) (recognizing the historic right of diplomatic immunity). However, the concept of immunity

itself, especially as it relates to foreign entities, is

disfavored. See Nat’l City Bank v. Republic of China,

348 U.S. 356, 358-59, 75 S.Ct. 423, 426 (1955) (noting

that immunity of foreign bodies is not a requirement

of the U.S. Constitution but instead rests on “considerations of policy”); Fed. Hous. Admin. v. Bureau, 309 U.S.

242, 245, 60 S.Ct. 488, 490 (1940) (Immunity waivers

are “liberally construed” because of the “current disfavor of the doctrine of governmental immunity from

suit”).

Affording the United Nations putative absolute

immunity, as in the District Court, violates the constitutional rights of Petitioners and other individuals

who have been forced to bear the effects of the United

Nations’ criminal negligence, both in Haiti and elsewhere. It is well settled that “all persons enjoy a constitutional right of access to the courts.” Brown v.

Stone, 66 F. Supp. 2d 412, 433 (E.D.N.Y. 1999). The

sources of this right are varied. See, e.g., Christopher

v. Harbury, 536 U.S. 403, 415 n.12, 122 S.Ct. 2179,

2186 (2002) (“Decisions of this Court have grounded

the right of access to courts in the Article IV Privileges

and Immunities Clause, the First Amendment Petition Clause, the Fifth Amendment Due Process Clause,

and the Fourteenth Amendment Equal Protection

and Due Process Clauses.” (citations omitted)); Acevedo

8

v. Surles, 778 F. Supp. 179, 184 (S.D.N.Y. 1991) (“The

right of access to the courts is guaranteed by the

First Amendment right to petition the government

for the redress of grievances.”). Regardless of source,

the right of access to courts is fundamental. Brown,

66 F. Supp. 2d at 433 (“While the origins of the right,

as well as its contours, may be the subject of debate,

the right of access to the courts nonetheless remains

a fundamental conscript of constitutional law.” (citations omitted)).

The right of access to courts means the government

cannot simply “bolt the door to equal justice.” See

Griffin v. Illinois, 351 U.S. 12, 24, 76 S.Ct. 585, 593

(1955) (Frankfurter, J., concurring). Due process requires “the opportunity to be heard,” an opportunity

that “must be granted at a meaningful time and in a

meaningful manner.” Armstrong v. Manzo, 380 U.S.

545, 551-52, 85 S.Ct. 1187, 1191 (1965) (quotation

omitted). Due process protects those “who seek recourse

in the courts, either as defendants hoping to protect

their property or as plaintiffs attempting to redress

grievances.” Logan v. Zimmerman Brush Co., 455 U.S.

422, 429, 102 S.Ct. 1148, 1154 (1982).

In assessing challenges regarding restrictions to

fundamental right of judicial access, the Court must

weight “the character and intensity of the individual

interest at stake” against government justification

for restriction. M.L.B. v. S.L.J., 519 U.S. 102, 120-21,

117 S.Ct. 555, 566 (1996).

Consideration of the nature of these individual

interests involves three factors. The first factor is the

amount of interference with access to the judicial

system. Physical and legal barriers that foreclose access

9

to courts are problematic, see, e.g., Tennessee v. Lane,

541 U.S. 509, 527-29, 124 S.Ct. 1978, 1990-91 (2004)

(involving courthouses the disabled were unable to

access); Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct.

2047, 2053 (1988) (a “‘serious constitutional question’

would arise if a federal statute were construed to

deny any judicial forum for a colorable constitutional

claim” (citation omitted)). Partial barriers are less

likely to be found unconstitutional. See Lassiter v.

Dep’t of Social Services of Durham County, 452 U.S.

18, 26-27, 101 S.Ct. 2153, 2159-60 (1981) (holding a

court should determine a parent’s request for courtappointed counsel for their minor child (a partial

barrier to judicial access) on a case-by-case basis).

Second, the strength of the interests involved:

the stronger the individual interest, the more likely

the barrier is an unconstitutional hindrance. Barriers

posing potentially life-altering consequences raise

serious constitutional concerns. See, e.g., Lindsey v.

Normet, 405 U.S. 56, 74-79, 92 S.Ct. 862, 874-77 (1972)

(a state’s appellate double-bond requirement, where

an evicted tenant might be financially unable to seek

judicial review to protect the tenant’s essential interest in housing); Mayer v. Chicago, 404 U.S. 189, 197,

92 S.Ct. 410, 416 (1971) (a significant transcript fee

is an unconstitutional barrier to judicial access because

the “impecunious medical student” cannot afford it

and might “find himself barred from the practice of

medicine because of a conviction he is unable to

appeal for lack of funds”); see also Little v. Streater,

452 U.S. 1, 16-17, 101 S.Ct. 2202, 2210-11 (1981) (a

statute is unconstitutional if it requires an indigent

to pay for blood tests to contest paternity. “[A]part from

the putative father’s pecuniary interest in avoiding a

10

substantial support obligation and liberty interest

threatened by the possible sanctions for noncompliance,

at issue is the creation of a parent-child relationship”).

The final factor is the availability of alternative

avenues for redress. A scheme is constitutionally problematic where the litigant has no means for redress outside of the judicial system. This Court has long recognized the importance of a legal system to which individuals—both defendants and plaintiffs—have access.

Boddie v. Connecticut, 401 U.S. 371, 374-77, 91 S.Ct.

780, 785 (1971). In that case, the Court struck down as

unconstitutional a state-court filing fee for divorce

cases, in part because the litigant had no avenue for

divorce except the judicial system:

As this Court on more than one occasion has

recognized, marriage involves interests of

basic importance in our society. It is not

surprising, then, that the States have seen

fit to oversee many aspects of that institution. Without a prior judicial imprimatur,

individuals may freely enter into and rescind

commercial contracts, for example, but we

are unaware of any jurisdiction where private

citizens may covenant for or dissolve marriages without state approval. Even where

all substantive requirements are concededly

met, we know of no instance where two

consenting adults may divorce and mutually

liberate themselves from the constraints of

legal obligations that go with marriage, and

more fundamentally the prohibition against

remarriage, without invoking the State’s

judicial machinery.

11

Thus, although they assert here due process

rights as would-be plaintiffs, we think appellants’ plight, because resort to the state courts

is the only avenue to dissolution of their

marriages, is akin to that of defendants

faced with exclusion from the only forum

effectively empowered to settle their disputes. Resort to the judicial process by these

plaintiffs is no more voluntary in a realistic

sense than that of the defendant called upon

to defend his interests in court. For both

groups this process is not only the paramount dispute-settlement technique, but, in

fact, the only available one. . . .

Id. at 376-77.

The Court ultimately held that the state court’s

refusal to consider the divorce without the filing fee

is unconstitutional:

[W]e conclude that the State’s refusal to admit

these appellants to its courts, the sole means

in Connecticut for obtaining a divorce, must

be regarded as the equivalent of denying

them an opportunity to be heard upon their

claimed right to a dissolution of their marriages, and, in the absence of a sufficient

countervailing justification for the State’s

action, a denial of due process.

Id. at 380-81.

Here, a consideration of all three “character and

intensity” factors weighs in favor of finding the U.N.’s

putative immunity unconstitutional.

12

First, the immunity enjoyed by the U.N. acts as

a complete barrier to redress. Unless the U.N. expressly

waives immunity—which the District Court below

indicated requires more than an explicit declaration

of its representative assuming liability—Petitioners

or other innocent third parties who face injury or

death at the hands of the U.N. have no recourse.

There is no judicial avenue for such individuals to

seek redress for their injuries.

Second, the individual interests at issue here are

significant. The underlying litigation concerns more

than just Petitioners’ economic interests. Indeed,

Petitioners here do not merely seek personal financial

damages, but they instead also demand injunctive relief,

remediation of the Haitian waterways afflicted by

cholera because of the U.N.’s negligence, provision of

adequate sanitation, and efforts to eradicate the

ongoing cholera outbreak. That is, this matter involves

the rights of Petitioners, as well as the members of

the class they represent, to life, family, health, and

basic subsistence. And in a broader sense, this litigation

involves the interests of fundamental fairness and

justice. Unless the U.N. faces accountability for its

grotesque negligence, it has no incentive to exercise

caution in the future and similar disasters will continue.

Third, Petitioners, those they represent, and other

similarly wronged individuals have no alternative or

non-judicial means of obtaining relief. The judicial

branch holds a monopoly on compelling monetary,

injunctive, and equitable recompense from the U.N. By

upholding and applying the U.N.’s asserted immunity,

the District Court effectively eliminated the only available means of relief.

13

In sum, all three factors support the conclusion

that Petitioners’ interests are of constitutional importance. Consequently, in order for the U.N. immunity

at issue here to pass constitutional muster, there must

be a strong governmental interest in upholding and

applying that immunity. See M.L.B., 519 U.S. at 12021. None exists.

Very few cases have addressed the constitutionality of the U.N.’s immunity. In George v. United

Nations, 834 F.3d 88 (2d Cir. 2016) and Brzak v.

United Nations, 597 F. 3d 107 (2d Cir. 2010), the

Second Circuit summarily concluded that the United

Nations’ immunity was constitutional without providing meaningful analysis or legal insight.

In Brzak, the 2nd Circuit rejected constitutional

arguments similar to those presented here noting

“[e]ach of these arguments fails, as each does no more

than question why immunities in general should exist.”

Brzak, 597 F.3d at 114. And further:

The short—and conclusive—answer is that

legislatively and judicially crafted immunities

of one sort or another have existed since

well before the framing of the Constitution,

have been extended and modified over time,

and are firmly embedded in American law.

If appellants’ constitutional argument were

correct, judicial immunity, prosecutorial

immunity, and legislative immunity, for example, could not exist. Suffice it to say, they

offer no principled arguments as to why the

continuing existence of immunities violates

the Constitution.

14

Id. at 114. The Court in George, addressing comparable

arguments, simply quoted and applied the foregoing

language from Brzak. See George, 834 F.3d at 98.

The Court’s characterization of the access-tocourts argument made in those cases—similar to the

argument made here—is incorrect. Not all immunities are unconstitutional, and neither does HTC seek

to eliminate fundamental immunities. However, the

inherent and long-standing immunities noted in Brzak

—judicial, prosecutorial, legislative, and diplomatic—

are entirely unlike the immunity the U.N. enjoys.

As indicated above, and as the Brzak Court

observed, some immunities are so ingrained into the

fabric of United States common law and custom that

their validity and purpose are not subject to reasonable

dispute. See Harlow, 457 U.S. at 810-11 (recognizing

“judicial, prosecutorial, and legislative functions”

to which “absolute immunity” applies); Dostal, 652

F.2d 173, 176-77 (1981) (recognizing the historic right

of diplomatic immunity). See generally District of

Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783

(2008) (explaining that preexisting laws, practices,

and understandings inform the meaning of the Constitution). Critically, the immunity claimed by the

United Nations falls under none of those categories.

The immunity behind which the United Nations

seeks to avoid culpability for its negligence and criminal behavior does not stem from long-standing

principles of common law or from the U.S. Constitution.

The United Nations is not a judicial body, prosecutor,

or legislature, nor a foreign nation-state or agent of

a foreign nation-state part of a diplomatic mission.

Rather, the immunity at issue here is a creature of

15

statute; it was created by an act of the United Nations itself, and ratified by the U.S. as a treaty. And

the Supreme Court has recognized that, while certain

immunities remain extant, the concept of immunities

is still disfavored, and the scope of such immunities

cannot extend more than is justifiable. See Nat’l City

Bank, 348 U.S. at 358-59 (noting that immunity of

foreign bodies is not a requirement of the U.S. Constitution but instead rests on “considerations of policy”);

Fed. House. Admin., 309 U.S. at 245 (recognizing the

“current disfavor of the doctrine of governmental

immunity from suit”).

In other words, because certain immunities predate the Constitution and make up the fundamental

fabric of the Constitution, those immunities cannot

themselves violate the Constitution. The same cannot

be said of the immunity at issue here. The United

Nations’ immunity stems solely from the CPIUN. It

is neither based on the Constitution nor ingrained

into the constitutional fabric of American jurisprudence.

Consequently, like any other statutory creation, CPIUN

must pass constitutional muster. It does not. Neither

the U.S. government nor the U.N. has articulated

any basis to overcome Petitioners critical constitutional interests, prohibiting those innocent third parties

injured from seeking redress for damages against the

United Nations.

In short, jurisprudential factors applicable to

constitutional access-to-court analysis overwhelmingly

support finding the “character and intensity” of the

individual interests involved are of constitutional

importance. The District Court’s decision to grant absolute immunity to the U.N. infringes on Petitioners’

16

fundamental right of access to the courts and must

be reversed.

Further, the United States Supreme Court declared the right of access to courts to be fundamental.

Tennessee v. Lane, 541 U.S. 509, 533-34 (2004).

As such, a restriction on that right requires a

“strict scrutiny” analysis, and U.N. immunity fails

because it is over-inclusive, virtually absolute and

beyond that of common law government immunities.

As such it cannot be considered narrowly tailored.

Moreover, the means employed by the Government

to implement its presumed compelling interest in

ensuring the proper functioning and independence of

international organizations is not the least restrictive

means available to the Government. Congress could

have passed a statute like the Federal Tort Claims

Act (FTCA, 28 USC § 1346(b)), or mandated third

party claims or employee suits against the respondent U.N. be addressed in the Court of Claims, or an

independent, alternative dispute mechanism with all

due process protections required by the U.S. Constitution. (Similar to the internal dispute resolution system

applying to some Federal Government employees

which allows access to Federal Court when dissatisfied

with the outcome of the internal dispute resolution

mechanism). Civil Service Reform Act, 5 U.S.C. 7101,

et seq.

While there might certainly be a compelling interest to shield the United Nations (a largely charitable

organization purportedly operating for the public

good on a non-profit basis) from the doubtless large

volume of frivolous lawsuits it could be exposed to

should no immunity exist, it is counter-productive and

17

dangerous to give the organizations and its members

absolute immunity. This type of complete immunity

from criminal and civil legal consequences makes

fertile ground for incompetence and criminal behavior.

It does not serve a compelling interest.

The absence of narrow tailoring of the United

Nations’ immunity by the District Court opens the

door to a number of adverse consequences. No official

United Nations function is served by the introduction

of cholera in a country already devastated by a

damaging earthquake.

This Court has held that an official seeking absolute immunity bears the burden of showing such

immunity is justified for the function in question.

Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538,

542 (1988), and Harlow v. Fitzgerald, 457 U.S. 800,

812, 102 S.Ct. 2727, 2734 (1982). The Court has been

“quite sparing” in its recognition of absolute immunity,

Forrester, supra, at 224, and has refused to extend it

“further than its justification would warrant”. Harlow,

supra, at 811.

Judges, legislators, and prosecutors, are not

shielded from civil or criminal suit based on official

immunity when engaged in gross negligence or criminal

activity. See Nixon v. Fitzgerald, 457 U.S. 731, 752,

759, 102 S.Ct. 2690, 2702, 2706 (1982) (Burger, C. J.,

concurring) (noting that “a President, like Members

of Congress, judges, prosecutors, or congressional

aides—all having absolute immunity are not immune

for acts outside official duties”); see also 457 U.S. at

761. The way the District Court has construed the

United Nation’s immunity protects acts outside the

UN’s formal functions and official staff duties.

18

This Court has addressed whether an international

treaty can free the government from Constitutional

restraints. See Bond v. United States, involving the

application of the Chemical Weapons Convention

Implementation Act of 1998 as applied against a

defendant accused of using such chemicals to retaliate

against an unfaithful spouse. The issue was whether

the Act applied broadly subverted States’ rights in

violation of the Tenth Amendment; the Court ruled

that Congress does not have the authority to enact

legislation to enforce a treaty that would infringe

upon traditional state matters. (see Bond v. United

States, 174 S.Ct. 2077 (2014)).

Since the Act is clear, the real question this

case presents is whether the Act is constitutional as applied to petitioner. An unreasoned

and citation-less sentence from our opinion

in Missouri v. Holland, 252 U.S. 416 (1920),

purported to furnish the answer: “If the

treaty is valid”—and no one argues that the

Convention is not—”there can be no dispute

about the validity of the statute under Article

I, § 8, as a necessary and proper means to

execute the powers of the Government.” Id.,

at 432.[4] Petitioner and her amici press us

to consider whether there is anything to this

ipse dixit. The Constitution’s text and structure show that there is not.

Bond v. United States, 174 S.Ct. 2077, 2098 (2014)

(Justice A. Scalia Concurring)

Further stating that:

We would not give the Government’s support

of the Holland principle the time of day were

19

we confronted with “treaty-implementing”

legislation that abrogated the freedom of

speech or some other constitutionally protected individual right. We proved just that

in Reid v. Covert, 354 U.S. 1 (1957), which

held that commitments made in treaties

with Great Britain and Japan would not

permit civilian wives of American servicemen

stationed in those countries to be tried for

murder by court-martial. The plurality opinion said that “no agreement with a foreign

nation can confer power on the Congress, or

on any other branch of Government, which is

free from the restraints of the Constitution.”

Id., at 16.

Bond v. United States, 174 S.Ct. 2077, 2101 (2014)

(Justice A. Scalia Concurring).

Thus, in this case, the District Courts ruling that

U.N. absolute immunity can infringe on traditional

state prerogatives and Fundamental Rights like in

Bond, renders the District Court’s interpretation

unconstitutional.

Finally, to dismiss Petitioners’ claims for lack of

subject-matter jurisdiction without allowing the case

to be heard in its infancy precludes Petitioners from

discovery as to whether there is criminal conduct or

conduct outside the scope of official U.N. acts. Discovery is necessary “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). Not allowing a case to be

heard based on absolute United Nations immunity

denies discovery and prevents Petitioners from ever

20

finding out why so many innocent people died or became

seriously ill as a result of the United Nations’ grossly

negligent or criminal acts.

United Nation’s absolute immunity is simply not

the least restrictive means to abridge a petitioner’s

fundamental right to petition U.S. Courts for redress.

Conversely, it is the most restrictive means available,

and must not stand.

CONCLUSION

This Court has held that multiple provisions in

the Constitution guarantee individuals a right to

open access to the judicial system. While there are

certain long-held immunities that pre-date the Constitution and form the jurisprudential fabric upon

which the Constitution was built, statutory immunity

of the United Nations under the CPIUN is not among

them.

The United Nations’ immunity at issue here acts

as an impermissible, absolute bar to the courts by

individuals such as Petitioners whose fundamental

rights have been abridged, and which require redress.

As indicated above, a proper weighing of applicable

factors reveals that immunity cannot withstand

constitutional scrutiny. Moreover, while lower Courts

have blithely rejected similar constitutional arguments

regarding the validity of United Nations immunity,

they have done so only superficially and without giving

due regard to the critical constitutional questions

and concerns raised by the litigants involved here.

21

This Court must take the opportunity to review

and determine the proper measure of immunity to be

afforded to the United Nations, if any. After doing so,

it will be apparent that as presently afforded, United

Nations immunity acts as an unconstitutional bar to

court access. It impermissibly denies Petitioners, and

other innocent third parties wronged by negligent or

criminal U.N. actions, an opportunity to seek justice

in exercise of their fundamental rights. U.N. immunity

cannot exceed the restrictive immunity set out in

FSIA of 1976, as recently expressed in Jam.

The petition should be granted.

Respectfully submitted,

EDWARD PATRICK FLAHERTY

COUNSEL FOR AMICUS CURIE

SCHWAB, FLAHERTY & ASSOCIÉS

7, RUE DE CANDOLLE

CH-1205 GENEVA

SWITZERLAND

+4122-840-5000

FLAHERTY@SFALEGAL.COM

JUNE 6, 2019