Petition for Writ of Certiorari — Marie Laventure, et al., Petitioners v. United Nations, et al.

Supreme Court briefMay 10, 2019

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In The

Supreme Court of the United States

-----------------------------------------------------------------MARIE LAVENTURE, et al.,

Petitioners,

UNITED NATIONS, et al.,

Respondents.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI

-----------------------------------------------------------------JAMES F. HAGGERTY

Counsel of Record

LAW OFFICE OF JAMES F. HAGGERTY

45 Broadway, Suite 3140

New York, NY 10006

(212) 470-0800

jhaggerty@haggertylegal.com

PAUL M. TARR

LESTER SCHWAB KATZ & DWYER LLP

100 Wall Street, 27th Floor

New York, NY 10005

(212) 964-6611

ptarr@lskdnylaw.com

MARK A. GOTTLIEB

NORTHEASTERN UNIVERSITY

SCHOOL OF LAW

360 Huntington Avenue

Boston, MA 02115

(617) 373-2026

mark@phaionline.org

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED

An agreement to be liable binds a party to an

enforceable obligation in law and justice. This is true

under the laws of the United States and it has been

affirmed repeatedly in official documents of the United

Nations (“UN”). In conflict with this universal and widely

understood definition, the Second Circuit ruled that

an express assumption of liability by the SecretaryGeneral of the UN, which was then legislatively

adopted by the UN General Assembly, was limited to internal UN claims processes that are either nonexistent

or not binding.

The questions presented are:

1. Whether the term “liability” can be used in an

unenforceable, non-obligatory context, making it plausible that an entity would use the term in a legislative

enactment to refer to claims processes that have never

existed or are otherwise not binding on the party

agreeing to be liable.

2. Whether an express agreement to be liable

without limiting such liability to a binding forum subjects a party—which heretofore had absolute immunity—to the jurisdiction of any court with otherwise

competent jurisdiction to hear the claim.

3. Whether, at the pleading stage of a tort action,

a plaintiff has met its burden to survive dismissal under Federal Rule of Civil Procedure 12(b)(1) and

12(h)(3) where an affirmative, plausible case has been

made for jurisdiction and there is no other plausible

explanation for the use of a term in a legislative enactment that has a well-known meaning at common law

and under the law of the United States.

PARTIES TO THE PROCEEDING

Petitioners, including Marie Laventure, Maggie

Laventure, Cherylusse Laventure, and Sane Laventure, as well as more than 3,000 additional individuals

listed in the complaint, are American and Haitian citizens, all of whom are plaintiffs in this case and were

damaged as a result of the tortious conduct of the

United Nations.

Respondents in this action, who did not enter an

appearance in either the United States District Court

or before the United States Court of Appeals, are the

UN, the UN Stabilization Mission In Haiti (“MINUSTAH”), Ban Ki-Moon, former Secretary-General

of the UN, Edmond Mulet, former Under SecretaryGeneral for MINUSTAH, Chandra Srivastava, former

Chief Engineer for MINUSTAH, Paul Aghadjanian,

former Chief of Mission Support for MINUSTAH,

Pedro Medrano Rojas, a former Assistant UN

Secretary-General, and Miguel de Serpa Soares, Under

Secretary for Legal Affairs of the UN (hereinafter referred to, collectively, as the “United Nations,” “UN,” or

“Organization”).

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

PARTIES TO THE PROCEEDING ......................

TABLE OF CONTENTS ......................................

iii

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

PETITION FOR A WRIT OF CERTIORARI .......

OPINIONS BELOW.............................................

JURISDICTION ...................................................

RELEVANT STATUTORY PROVISIONS ...........

INTRODUCTION ................................................

STATEMENT OF THE CASE..............................

REASONS FOR GRANTING THE WRIT............ 10

Given the meaning of the term “liability,”

the UN would never have used the term to

refer to claims processes that do not exist

or are nonbinding ...................................... 12

a. The UN itself has agreed that liability

entails a binding obligation in law and

justice .................................................. 16

II.

An assumption of liability is a common

manner through which an entity with absolute immunity waives such immunity,

subject to the limitations of the waiver itself ............................................................. 18

a. The Second Circuit previously held

that liability and immunity are mutually exclusive jural opposites .............. 25

TABLE OF CONTENTS—Continued

Page

III.

A binding forum for the adjudication of

tort claims against the UN does not exist

and has never existed ................................ 26

IV.

The Secretary-General’s reports do not

state that the UN’s assumption of liability

was restricted to its internal claims processes, nor that the UN has retained immunity where liability is assumed ............ 29

A plaintiff has met its burden to survive

dismissal under FRCP 12(h)(3) where an

affirmative, plausible case has been made

for jurisdiction and there is no other plausible explanation for the use of a term in a

legislative enactment that has a wellknown meaning at common law and the

law of the United States ............................ 34

CONCLUSION..................................................... 37

APPENDIX

United States Court of Appeals for the Second

Circuit, Summary Order, December 28, 2018..... App. 1

United States District Court for the Eastern

District of New York, Memorandum & Order,

August 24, 2017................................................ App. 9

TABLE OF AUTHORITIES

Page

CASES

APWU v. Potter, 343 F.3d 619 (2d Cir. 2003) ..............36

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............. 6, 35, 36

Bell Atl. Corp. v. Twombly, 550 U.S. 544

(2007) ............................................................. 6, 35, 36

Bormes v. United States, 759 F.3d 793 (7th Cir.

2014) .................................................................. 22, 23

Brown v. State of New York, 89 N.Y.2d 172 (1996) ....... 23

CCF, Inc. v. First Nat’l Bank and Trust Co., 69

F.3d 468 (10th Cir. 1995) .........................................13

Chew Heong v. United States, 112 U.S. 536 (1884) ...... 28

De La Rama S.S. Co. v. United States, 344 U.S.

386 (1953) ................................................................12

Dennick v. Railroad Co., 103 U.S. 11 (1881) ..............11

FAA v. Cooper, 566 U.S. 284 (2012) .................. 4, 19, 20

Federal Deposit Insurance Corporation v. Meyer,

510 U.S. 471 (1994) .................................................19

Fire Assoc. of Philadelphia v. Allis Chalmers

Mfg. Co., 129 F. Supp. 335 (N.D. Iowa 1955) ..........13

Griffin v. Illinois, 351 U.S. 12 (1956) ............................6

Helmerich & Payne Int’l Drilling Co. v. Bolivarian Republic of Venez., 415 U.S. App. D.C. 21,

784 F.3d 804 (D.C. Cir. 2015) ..................................36

Irwin v. Department of Veterans Affairs, 498 U.S.

89 (1990) ..................................................................19

TABLE OF AUTHORITIES—Continued

Page

Jackson v. State of New York, 261 N.Y. 134, 184

N.E. 735 (1933) .................................................. 19, 25

Jam v. Int’l Fin. Corp., ___ U.S. ___, 139 S. Ct.

759 (2019) ................................................................26

Jesner, et.al. v. Arab Bank, 584 U. S. __, 138 S. Ct.

1386 (2018) ..............................................................14

Jo v. JPMC Specialty Mortg., LLC, 248 F. Supp.

3d 417 (W.D.N.Y. 2017)............................................35

Kirsch v. Barnes, 263 F.2d 692 (9th Cir. 1959) ...........13

Krenger v. Pennsylvania R. Co., 174 F.2d 556 (2d

Cir. 1949) .................................................................25

Laventure, et. al. v. United Nations (2d Cir. C.A..

Case No. 17-2908) (December 29, 2017) ............. 8, 27

Lerner v. Fleet Bank, N.A., 318 F.3d 113 (2d Cir.

2003) ........................................................................35

Lorillard, Div. of Loew’s Theatres, Inc. v. Pons,

434 U.S. 575 (1978) ...................................................3

Pennsylvania v. Union Gas Co., 491 U.S. 1

(1989) ................................................................... 5, 22

Rasmus v. A. O. Smith Corp., 158 F. Supp. 70

(N.D. Iowa 1958) ......................................................13

Richlin Security Service Co. v. Chertoff, 553 U.S.

571 (2008) ................................................................20

Seminole Tribe v. Florida, 517 U.S. 44 (1996) ........ 5, 22

Shipping Fin. Servs. Corp v. Drakos, 140 F.3d

129 (2d Cir. 1998) ....................................................36

vii

TABLE OF AUTHORITIES—Continued

Page

Sipple v. State, 96 N.Y. 284 (1885) .............................23

Tarros S.p.A. v. United States, No. 13 CIV. 1932

(JPO), 2013 WL 6084243 (S.D.N.Y. Nov. 19,

2013) ........................................................................35

United States v. King, 395 U.S. 1 (1969) .............. 19, 22

United States v. Mitchell, 445 U.S. 535 (1980) ...........19

United States v. Mitchell, 463 U.S. 206 (1983) ...........19

Univ. of W. Va. Bd. of Trs. ex rel. W. Va. Univ. v.

Graf, 205 W. Va. 118 (1998) .....................................24

Vogel v. Trans World Airlines, 346 F. Supp. 805

(E.D. Mo. 1970) ........................................................13

Wells Fargo Bank, N.A. v. Ullah, No. 13 CIV.

0485 (JPO), 2014 WL 470883 (S.D.N.Y. Feb. 6,

2014) ........................................................................36

CONSTITUTIONAL PROVISIONS

W. Va. Const. Art. VI, § 35 ...........................................23

STATUTES

12 V.S.A. § 5601...........................................................24

14 M.R.S. § 8104-A(1) .................................................24

28 U.S.C. § 1254(1) ........................................................1

42 Pa.C.S. § 8522(b) ....................................................24

42 U.S.C. § 9620(a)(1) .................................................21

viii

TABLE OF AUTHORITIES—Continued

Page

51 Okl. St. § 153 ..........................................................24

Age Discrimination in Employment Act, 29

U.S.C.S. § 633a ........................................................21

Alaska Stat. § 09.50.250 .............................................24

ALM GL ch. 258, § 2 ...................................................24

C.R.S. § 24-10-108, et seq. ...........................................24

Cal. Gov’t Code, § 815 .................................................23

Clean Air Act, 42 U.S.C.S. § 7418 ...............................21

Clear Water Act, 33 U.S.C.S. § 1323 ...........................21

Employment Opportunity Act,

42 U.S.C.S. § 2000e-16.............................................21

Fair Credit Reporting Act ...........................................22

Federal Tort Claims Act

28 U.S.C. § 2674................................................. 20, 21

28 U.S.C. § 2680.......................................................20

28 U.S.C. § 1346(b) ............................................ 20, 21

Fla. Stat. § 768.28 .......................................................24

Foreign Sovereign Immunities Act,

28 U.S.C. § 1330, 1602, et seq. .................................18

Idaho Code § 6-903(1) .................................................24

International Organizations Immunities Act,

22 U.S.C. § 6288, et seq. ...........................................18

K.S.A. § 75-6103..........................................................24

MCA, 2-9-102 ..............................................................24

TABLE OF AUTHORITIES—Continued

Page

Md. Code. Ann., State Gov’t § 12-101, et. seq. ............24

Minn. Stat. § 3.736 .....................................................24

N.D. Cent. Code, § 32-12.2-02 .....................................24

N.J. Stat. § 59:2-2(a) ...................................................24

R.I. Gen. Laws § 9-31-1 ..............................................24

R.R.S. Neb. § 81-8,215 ................................................24

Rev. Code Wash. § 4.92.090 ........................................24

S.C. Code Ann. § 15-78-40 ..........................................24

Va. Code Ann. § 8.01-195.3 .........................................24

W. Va. Code § 29-12A-4 ...............................................24

RULES AND REGULATIONS

Fed. R. Civ. Proc. 12(b)(1) ........................................ 5, 35

Fed. R. Civ. Proc. 12(b)(6) ............................................35

Fed. R. Civ. Proc. 12(h)(3) ............................. 5, 9, 35, 37

OTHER AUTHORITIES

A/CN.4/340 & Corr.1 and Add.1 & Corr.1, Third

report on jurisdictional immunities of States and

their property, by Mr. Sompong Sucharitkul,

Special Rapporteur, Extract from the Yearbook of the International Law Commission:

1981, vol. II(1) .........................................................26

TABLE OF AUTHORITIES—Continued

Page

A/CN.4/402 and Corr.1, Corr.2 (S only) to 4, Second report on international liability for injurious consequences arising out of acts not

prohibited by international law, by Mr. Julio

Barboza, Special Rapporteur, Extract from

the Yearbook of the International Law Commission: 1986, vol. II(1) ..................................... 16, 17

Article II, § 2 of the Convention of Privileges and

Immunities of the United Nations, 21 U.S.T.

1418 ....................................................................... 3, 8

Black’s Law Dictionary (10th ed. 2014), Liability ..... 2, 13

2 Bouvier L. Dict. 1950, Liability ...............................13

Charter of the United Nations, art. 105, § 1 ................2

Convention of Privileges and Immunities of the

United Nations, 21 U.S.T. 1418 ..................... 2, 3, 8, 19

Gregory Sisk, Litigating With The Federal Government (West Academic Publishing, 2016) ...........21

John C.P. Goldberg, Benjamin C. Zipursky, The

Oxford Introductions to U.S. Law: Torts (Oxford

University Press, 2010) ...........................................15

John Salmond, Jurisprudence (Stevens and

Haynes 1907) ..........................................................14

“Responsibility and liability in the common law”,

in Legal Aspects of Transfrontier Pollution

(Paris, OECD, 1977) ................................................17

Restatement (Third) of the Foreign Relations

Law of the United States § 456(3) (1986) .................3

UN Report A/51/389 (September 20, 1996) ......... passim

TABLE OF AUTHORITIES—Continued

Page

UN Report A/51/903 (May 21, 1997) .................. passim

UN Report A/52/410 ...................................................34

UN Resolution A/52/247 ................................... 9, 27, 33

PETITION FOR A WRIT OF CERTIORARI

Petitioners Marie Laventure, et al., respectfully

petition for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Second

Circuit, No. 17-2908.

------------------------------------------------------------------

OPINIONS BELOW

The Summary Order of the United States Court of

Appeals for the Second Circuit (App. 1) can be found at

746 F. App’x 80 (2d Cir. 2018). The opinion of the district court (App. 9) is published at 279 F. Supp. 3d 394

(E.D.N.Y. 2017).

------------------------------------------------------------------

JURISDICTION

The summary order of the court of appeals was issued on December 28, 2018. On March 18, 2019, Justice Ginsburg extended the time within which to file a

petition for a writ of certiorari to and including May

13, 2019. See No. 19A937. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

------------------------------------------------------------------

RELEVANT STATUTORY PROVISIONS

The relevant treaty provisions are the Convention

of Privileges and Immunities of the United Nations

(“CPIUN”), 21 U.S.T. 1418, and the Charter of the

United Nations, art. 105, § 1.

------------------------------------------------------------------

INTRODUCTION

Liability is defined as an enforceable obligation in

law and justice. There is no other legal definition.1 Liability can be absolved through immunity, it can be

limited temporally, financially or jurisdictionally, but it

cannot be relegated to a forum that doesn’t exist and

still be called liability. Without some binding mechanism for enforcement, the term “liability” is meaningless.

Given this universal and well-understood definition of liability, a party to a contract or legislative enactment would not plausibly use the term to refer to a

forum that doesn’t exist, or one that is voluntary and

nonbinding on the entity agreeing to be liable. Yet in

this case, the Second Circuit ruled that the UN’s express agreement to be liable, made in reports of

the Secretary-General that were then legislatively

adopted by the UN General Assembly, were limited to

internal UN claims processes that are either nonexistent or not binding in any way—despite the fact that

the Secretary-General doesn’t say this anywhere in the

documents in question. In other words, the Second

See, e.g., Black’s Law Dictionary (10th ed. 2014), Liability.

In finance and accounting, of course, a liability can also be a financial or pecuniary obligation, id., but that, too, is binding and

legally enforceable.

Circuit ruled that, by implication, the SecretaryGeneral and UN General Assembly were using the

word “liability” to refer to unenforceable obligations in

nonexistent forums.

The ruling in this case, therefore, directly conflicts

with the understanding of liability at common law and

under the law of the United States. The ruling is also

at odds with this Court’s long-standing precedent holding that where words are employed that have a wellknown meaning at common law or in the law of this

country, “they are presumed to have been used in that

sense.” Lorillard, Div. of Loew’s Theatres, Inc. v. Pons,

434 U.S. 575, 576 (1978). And critically, the Second Circuit’s ruling conflicts with official documents of the UN

itself, which resoundingly affirm the compulsory nature of liability.

At issue in this case is whether the UN, MINUSTAH and the individual Defendants have waived

immunity from suit in U.S. courts for the tortious acts

of UN peacekeepers in Haiti. In response to the filing

of the case, the UN wrote a letter to the U.S. Department of State asserting immunity from suit under

Article II, § 2 of the Convention of Privileges and Immunities of the United Nations (“CPIUN”), 21 U.S.T.

1418. Petitioners believe this assertion of immunity

has no legal effect, since the UN had previously expressly waived immunity in these types of cases and

therefore could not reassert it. See, e.g., Restatement

(Third) of the Foreign Relations Law of the United

States § 456(3) (1986) (“Under the law of the United

States, a waiver of immunity may not be withdrawn,

except by consent of all parties to whom (or for whose

benefit or protection) the waiver was made.”).

More specifically, in two reports of the SecretaryGeneral, issued in 1996 and 1997, the UN expressly

assumed liability for private law damages caused by

UN peacekeeping forces in circumstances such as

those present in this case. These reports were then

adopted legislatively by the full UN General Assembly

and are thus binding on the Organization as law. It is

simply not plausible to suggest that this legislative enactment was intended to bind the UN to claims procedures that do not exist or are binding on no one. The

only plausible conclusion is that the Secretary-General

intended this assumption of liability to be an express

waiver of immunity in the limited circumstances laid

out in his reports. Any other reading of the SecretaryGeneral’s words would create a legal impossibility of

the sort that this Court has long refused to countenance.

Moreover, waiver of immunity through an assumption of liability is quite common, including in U.S.

state and federal law. When an entity with absolute

immunity subsequently reassumes its liability, it is

without question an express waiver of its former immunity, subject to limitations contained in the waiver

itself, be they temporal, financial or jurisdictional.

Long-standing precedent of this Court in other areas

of immunity holds that “magic words” are not needed

to show an express waiver by a party with absolute immunity, but rather only an “unequivocal expression of

. . . intent,” FAA v. Cooper, 566 U.S. 284, 291 (2012).

Further, this Court has held that such an unequivocal

expression of intent exists where “we cannot imagine

any other plausible explanation” for terms used. Pennsylvania v. Union Gas Co., 491 U.S. 1, 10 (1989).2 Therefore, absent any other plausible explanation for the

words used by the Secretary-General—words which

were then made binding on the UN through legislative

adoption by the General Assembly—the only conclusion that can be drawn is that the Secretary-General

intended an express waiver of UN immunity for damages caused by UN peacekeepers in the circumstances

outlined in the reports.

In the face of this affirmative, plausible showing of

an intent to waive its immunity, Petitioners also ask

this Court to consider whether, in upholding the dismissal of Petitioners’ claims at the pleading stage—

without any plausible explanation as to why the UN

would use the term liability to refer to claims processes

that do not exist or are nonbinding—the Second Circuit has impermissibly raised the bar for surviving dismissal under Federal Rule of Civil Procedure (“FRCP”)

12(b)(1) and 12(h)(3) to something akin to a “beyond all

reasonable doubt” standard. In other words, by the reasoning of the Second Circuit, if any scintilla of doubt as

to the UN’s intent can be found, no matter how implausible, the prior express waiver didn’t happen—even if

an affirmative and plausible case for advance waiver

has been demonstrated by a preponderance of the evidence, and even if no other plausible explanation has

Abrogated on other grounds in Seminole Tribe v. Florida,

517 U.S. 44 (1996).

been offered to rebut this presumption. Such a ruling

is in direct conflict with pleading standards for surviving a motion to dismiss, including this Court’s plausibility standard, laid out in Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662

(2009). In that regard, this Court should consider

whether the impact of the Second Circuit’s decision is

to “bolt the door to equal justice,” Griffin v. Illinois, 351

U.S. 12, 16 (1956).

This is an important case—not just given the human cost of the UN’s tortious actions in Haiti, and not

just to resolve conflicts between the Second Circuit and

the law of other Circuits and this Court related to the

meaning of such basic legal principles as liability, express waiver of absolute immunity, and the burden of

proof required to survive dismissal at the pleading

stage of civil litigation. Throughout this case, Petitioners believe there has been a reflexive reaction on the

part of governments, the courts, and others to prejudge—to decide, without proper consideration, that

the UN is immune, despite the Organization’s own express agreement to be liable and acceptance of responsibility for the damages it has wrought. As a result,

there has never been a hearing in open court to consider the issues at the heart of this case, and arguments by Petitioners as to the nonexistence of UN

standing claims commissions—or any other binding forum for the adjudication of claims—have been ignored

by both the district court and the Second Circuit. Put

simply, it has never been explained to the Petitioners

by any court how the UN can assume a liability that is

enforceable nowhere.

Further, it must be understood that this case is not

an attack on general concept of UN immunity. In fact,

the express wavier by the UN at issue in this case is

quite limited. Rather, Petitioners simply seek clarification from this Court regarding these critical matters,

so that lower courts do not reflectively seek to uphold

UN immunity above all else, even in the face of incontrovertible evidence of express waiver. Immunity is not

an altar upon which all other principles of law should

be sacrificed.

This Court should clarify the definition of liability,

the scope of the UN’s absolute immunity, and what the

UN means when, unequivocally and without qualification, it assumes liability for the tortious acts of its

peacekeeping forces.

------------------------------------------------------------------

STATEMENT OF THE CASE

There is little dispute over the facts of this case. In

2010, the United Nations spread cholera throughout

Haiti by taking 1,075 peacekeepers from Nepal (where

cholera was rampant) and deploying them to Haiti, a

nation that had not seen a case of cholera in more than

100 years. App. 11. The UN never tested its Nepalese

peacekeepers for the presence of the disease and constructed inadequate sewage facilities on a tributary of

a major river used for bathing, cooking and drinking

water. Cholera spread quickly. It is estimated that

10,000 people died and approximately 1 million were

sickened as a result of the UN’s actions. Id. The UN

has admitted responsibility and apologized for its introduction of cholera into Haiti (App. 12), but it turned

away, without consideration, approximately 5,000

claims presented to the Organization, and has otherwise refused to accept liability for its actions.3

On March 11, 2014, Petitioners sued the UN and

the other Defendants for damages resulting from the

UN’s tortious acts. App. 13. Through a letter to the

United States government (App. 7, 14), the Defendants

asserted immunity from suit under Article II, § 2 of the

Convention of Privileges and Immunities of the United

Nations (“CPIUN”), 21 U.S.T. 1418, which specifies

that the UN “shall enjoy immunity from every form of

legal process except insofar as in any particular case it

has expressly waived its immunity.” The CPIUN’s authority, in turn, flows from the Charter of the United

Nations, which provides that the UN “shall enjoy in the

territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes.” U.N. Charter art. 105, § 1.

Petitioners assert that the UN had expressly

waived its immunity from suit in U.S. courts and

therefore could not reassert it. Specifically, in two reports issued in 1996 and 1997 (hereinafter referred to

as reports “A/51/389” and “A/51/903”), the United Nations, through statements of the Secretary-General,

See Laventure, et. al. v. United Nations (2d Cir. C.A. Case

No. 17-2908), Dkt. No. 41, pp. 23-24 (December 29, 2017).

expressly assumed liability for private law damages

caused by UN forces in circumstances such as those

present in this case.4 These reports were then adopted

legislatively by the full UN General Assembly, and

therefore became binding on the Organization.5 Petitioners requested that, if the district court could not

find an express waiver of immunity, at the very least it

should allow limited jurisdictional discovery to determine whether the UN did, in fact, intend a meaning

when using the term liability so contrary to the commonly understood definition of the term. App. 5-6.

The U.S. Government, for its part, filed a Statement of Interest (SOI) in the district court, and an amicus brief in the Second Circuit, supporting the

contention of the UN that, despite the statements of

the Secretary-General in his reports, the UN remained

immune. App. 13-14.

The Second Circuit upheld the district court’s dismissal under FRCP 12(h)(3) (“if the court determines

at any time that it lacks subject-matter jurisdiction,

the court must dismiss the action.”). In a summary order dated December 28, 2018, the Second Circuit ruled

that “[t]he reports describe procedures for redress for

The two reports in questions are:

(1) UN Report A/51/389 (September 20, 1996), found

at https://undocs.org/A/51/389; and

(2) UN Report A/51/903 (May 21, 1997), found at:

https://undocs.org/A/51/903

(both last accessed May 6, 2019).

UN Resolution A/52/247, found at https://undocs.org/A/res/

52/247 (last accessed May 6, 2019).

third-party claims through standing claims commissions or internal UN procedures. . . . It is clear that the

reports’ descriptions of the UN’s liability refer only to

their responsibility in these non-judicial forms and do

not constitute an express waiver of immunity from legal processes in domestic courts.” App. 6. While the

Second Circuit stated that these reports provide that

“such responsibility is discharged ‘by means of a standing claims commission’ addressing claims ‘which for

reasons of immunity of the Organization and its members could not have been submitted to local courts’,” id.,

the court did not address the fact that such standing

claims commissions do not exist and have never existed in the history of the UN. Nor did the Second Circuit address Petitioners’ argument that nowhere do

these reports directly state that the UN’s acceptance

of liability is restricted to these nonexistent forums. Finally, the Second Circuit chose not to address how it

could plausibly be argued that the UN’s assumption of

liability was somehow limited to claims processes that

are either nonexistent or not binding on anyone.

------------------------------------------------------------------

REASONS FOR GRANTING THE WRIT

Is liability an agreement that binds a party to an

enforceable obligation in law and justice, or does it

mean something else, depending upon the context (or,

perhaps, depending upon the party)? Can a binding enactment of a legislative body agree to assume liability,

but restrict this liability to forums that do not exist,

have never existed, or are completely voluntary or

nonbinding? Does any explanation, implausible

though it may seem, shield a party with absolute immunity from a determination that it has expressly

waived that immunity, even in the face of a clear assumption of liability?

The answers to these questions seem obvious. Liability creates an enforceable obligation, or else it is

not liability. Without some mechanism for enforceability (even if limited by time, jurisdiction, or other restriction), the term liability is meaningless. Moreover,

if an entity with absolute immunity subsequently

agrees to be liable without limiting such acceptance to

a binding forum, that entity is liable in any forum

which otherwise would have jurisdiction, since this

Court has long held that “wherever, by either the common law or the statute law . . . a right of action has

become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in

any court which has jurisdiction of such matters. . . .”

Dennick v. Railroad Co., 103 U.S. 11, 18 (1881). Further, the burden of proof to survive dismissal at the

pleading stage only requires an affirmative, plausible

showing by a preponderance of the evidence of an intent to waive—and where there is no other plausible

explanation, this Court has found express waiver is the

only conclusion to be drawn.

Given all this, the decision of the Second Circuit in

this case conflicts not just with other Circuits and the

law of this Court, but with centuries of understanding

of some of the most elemental principles in law. Neither the district court nor the Second Circuit

addressed these matters. With the increasing role that

international organizations such as the UN play in the

world, this Court should use this case to resolve these

conflicts.

Given the meaning of the term “liability,”

the UN would never have used the term to

refer to claims processes that do not exist or

are nonbinding.

On several occasions over the course of the past

century, this Court has characterized a central flaw in

the Second Circuit’s decision:

. . . to acknowledge the liability but to deny

the full extent of its enforceability recalls

what was said in The Western Maid, 257 U.S.

419, 433 [1922]: “Legal obligations that exist

but cannot be enforced are ghosts that are

seen in the law but that are elusive to the

grasp.”

De La Rama S.S. Co. v. United States, 344 U.S. 386, 390

(1953).

The UN’s legal obligations to those damaged

through the tortious acts of UN peacekeepers are not

mere elusive “ghosts.” The UN repeatedly and unambiguously assumed liability for damages caused by its

peacekeeping operations. These words accepting liability impose upon the UN an enforceable duty in a binding forum. In other words, liability imposes obligations.

This is not merely a matter of acknowledging fault, or

even accepting responsibility. It is more. Under U.S.

law and the UN’s specific pronouncements, liability imposes upon the responsible party a legal obligation to

be bound by an enforceable duty.

Black’s Law Dictionary defines Liability in this

manner:

The quality, state or condition of being legally

obligated or accountable; legal responsibility

to another or to society, enforceable by civil

remedy or criminal punishment.6

The Second Circuit’s misapplication of the term in

the case before this Court has placed it in conflict with

other Circuits. The Ninth Circuit, for example, has

held (citing California law), that liability is “the condition of one who is subject to a charge or duty which

may be judicially enforced.” Kirsch v. Barnes, 263 F.2d

692 (9th Cir. 1959). Other U.S. federal and state courts

have held repeatedly that liability is “the state of being

bound or obliged in law or justice.” Rasmus v. A. O.

Smith Corp., 158 F. Supp. 70 (N.D. Iowa 1958); CCF,

Inc. v. First Nat’l Bank and Trust Co., 69 F.3d 468, 473

(10th Cir. 1995); Vogel v. Trans World Airlines, 346

F. Supp. 805 (E.D. Mo. 1970); Fire Assoc. of Philadelphia v. Allis Chalmers Mfg. Co., 129 F. Supp. 335 (N.D.

Iowa 1955).

In fact, the compulsory nature of liability is so well

established as an underlying principle of the law that,

in most cases, no explanation by a court is needed

Black’s Law Dictionary (10th ed. 2014), Liability; see also 2

Bouvier L. Dict. 1950, Liability.

when using the term. Consider this Court’s recent decision in Jesner, et.al. v. Arab Bank, 584 U.S. __, 138

S. Ct. 1386 (2018). In Jesner there are five separate

opinions, with the words “liable” or “liability” used approximately 200 times. Not once is the word liability

used to indicate anything other than a binding, enforceable obligation “imposed” upon a party. Thus, in

Justice Kennedy’s plurality opinion, “ . . . it is proper

now to turn first to the question whether there is

an international-law norm imposing liability on corporations. . . .” Id., at 1399. In the dissent, Justice

Sotomayor wrote, “Although international law determines what substantive conduct violates the law of nations, it leaves the specific rules of how to enforce

international-law norms and remedy their violation to

states, which may act to impose liability collectively

through treaties or independently via their domestic

legal systems.” Id., at 1420. In most cases—in Jesner

or any other decision where liability is considered—

courts assume that liability is something that can be

imposed upon a party in a binding, enforceable forum,

since that is the only definition of the term that exists.

Legal scholarship reinforces this concept. Consider the seminal work of John Salmond, Jurisprudence (Stevens and Haynes 1907), at § 125:

“Liability . . . is the bond of necessity that exists between the wrongdoer and the remedy of

the wrong. This vinculum juris is not one of

mere duty or obligation; it pertains not to the

sphere of ought but to that of must . . . [a]

man’s liability consists in those things which

he must do or suffer, because he has already

failed in doing what he ought.” (emphasis in

original).

Or, more recently: “A longstanding maxim of English common law reads ubi jus ibi remedium: where

there is a right, there shall be a remedy. If the law has

proscribed conduct as wrongful toward others—if they

have a right not to be so treated—and if another is injured by virtue of such conduct, the law will grant the

victim the right to respond to the injurious wrongdoing.” John C.P. Goldberg, Benjamin C. Zipursky, The

Oxford Introductions to U.S. Law: Torts (Oxford University Press, 2010).

Therefore, in order for a party to accept liability,

there must be a binding forum to enforce the obligation

in law and justice. It can be constrained by time, substance, jurisdiction or remedies, to be sure, but no entity would, in a legal sense, use the term liability to

refer to forums that do not exist or are wholly nonbinding. Yet the Second Circuit’s ruling would expand the

definition of liability to include forums that are nonbinding, non-obligatory or nonexistent. This is error. It

has ramifications not just in circumstances where an

entity with absolute immunity attempts to restore its

immunity, but in any area of the law that relies on the

well-established and universally acknowledged definition of liability.

a. The UN itself has agreed that liability

entails a binding obligation in law and

justice.

An argument cannot be made that the UN has

some other definition of the term liability, different

from that under the common law and the laws of the

United States, and therefore, perhaps, did not intend

its assumption of liability to be a binding obligation in

an enforceable forum. In fact, in its official reports, the

UN has promulgated a definition of liability that is entirely consistent with that under U.S. law. In a 1986

Report addressing “[i]nternational liability for injurious consequences arising out of acts not prohibited by

international law,” for example, a UN Special Rapporteur set forth a clear definition of liability. This definition specifically differentiated liability from mere

“responsibility” and confirmed that specific and enforceable legal obligations attach when the UN assumes liability. According to this UN document, while

“responsibility” refers “to the consequences of unlawful

acts,” liability refers “to the very obligation imposed by

the primary norm.”7 The UN report further describes

this understanding of the term liability by reference to

the work of a “writer versed in common law, L. F. E.

Goldie, examining the differences between the English

A/CN.4/402 and Corr.1, Corr.2 (S only) to 4, Second report

on international liability for injurious consequences arising out of

acts not prohibited by international law, by Mr. Julio Barboza,

Special Rapporteur, Extract from the Yearbook of the International Law Commission: 1986, vol. II(1), at 145. Available at: http://

legal.un.org/docs/?path=../ilc/documentation/english/a_cn4_402.

pdf&lang=EFS (last accessed May 5, 2019).

terms ‘responsibility’ and ‘liability’. . . .”8 The Special

Rapporteur noted that while “responsibility is taken to

indicate a duty . . . liability connotes exposure to legal

redress once responsibility and injury arising from a

failure to fulfill that legal responsibility have been established.”9

The report further stated:

failure to observe one’s responsibilities, or . . .

being responsible in a causal sense for harm,

carry the legal consequences (i.e. both the

sanctioning and compensatory function) of incurring liability.10

The UN report underscores that, without enforcement, there can be no liability. Given the universal acceptance of this definition of liability—including by

the UN itself—it is simply implausible that the Secretary-General did not understand the submission to

binding legal authority inherent in the UN’s express

assumption of liability. It is equally implausible that

the General Assembly did not understand the logical

consequence of its adoption of the resolution that

bound the UN to the meaning of the SecretaryGeneral’s words. In its ruling, the Second Circuit declined to address any of these arguments. This Court

should resolve these conflicts, given the important

principles at stake.

Id., at 146.

Id.

Id., citing “Responsibility and liability in the common law”, in

Legal Aspects of Transfrontier Pollution (Paris, OECD, 1977), p. 344.

II.

An assumption of liability is a common manner through which an entity with absolute

immunity waives such immunity, subject to

the limitations of the waiver itself.

When entities with absolute immunity undertake

to expressly waive such immunity, they commonly do

so by agreeing to assume liability. Such waivers are not

implicit or by implication; they are express. Put another way: if immunity is a blanket that shields a party

from legal process, then to subsequently agree to assume liability casts off this jurisdictional immunity,

subject to the limitations of the waiver itself.

While this Court has never directly addressed this

question, both U.S. federal and state governments have

waived their absolute immunity by their assumption

of liability in a manner analogous to the UN’s assumption of liability in this case.11 A quote from New York’s

highest court deftly describes what happens when an

immune entity subsequently assumes liability:

In the assumption of liability and the creation

of a remedy to enforce a liability, heretofore

absent by reason of the sovereignty of the tort

feasor, the sovereign has not generously dispensed charity . . . [i]t declares that no longer

will the [entity] use the mantle of sovereignty

Of course, an assumption of liability is not the only way to

effectuate an express waiver of immunity. Both the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1330, 1602, et seq. and

the International Organizations Immunities Act (IOIA), 22

U.S.C. § 6288, et seq., waive immunity by subjecting heretofore

immune entities to the jurisdiction of U.S. courts.

to protect itself from such consequences as follow negligent acts . . . [i]t admits that in such

negligence cases the sovereign . . . promises

that in future it will voluntarily discharge its

moral obligations in the same manner as the

citizen is forced to perform a duty which

courts and Legislatures have so long held, as

to him, to be a legal liability. It transforms an

unenforceable moral obligation into an actionable legal right. . . .”

Jackson v. State of New York, 261 N.Y. 134, 138, 184

N.E. 735 (1933).

As to the United States, “Absent a waiver, sovereign immunity shields the Federal Government and its

agencies from suit.” Federal Deposit Insurance Corporation v. Meyer, 510 U.S. 471, 475 (1994) (citation omitted). The sovereign’s consent is central to waiver, as

“[i]t is axiomatic that the United States may not be

sued without its consent,” the existence of which “is a

prerequisite for jurisdiction.” United States v. Mitchell,

463 U.S. 206, 212 (1983). To be sure, just like the UN’s

waiver of immunity under CPIUN § 2, “[w]aivers of the

Government’s sovereign immunity, to be effective,

must be “ ‘unequivocally expressed.’ ” Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95 (1990), quoting

United States v. Mitchell, 445 U.S. 535, 538 (1980), and

United States v. King, 395 U.S. 1, 4 (1969). But this

Court has also held that although there must be “an

unmistakable statutory expression of congressional intent to waive the Government’s immunity, Congress

need not state its intent in any particular way. We have

never required that Congress use magic words.” FAA v.

Cooper, 566 U.S. 284, 291 (2012), citing Richlin Security Service Co. v. Chertoff, 553 U.S. 571, 589 (2008). To

the contrary, this Court has held that “the sovereign

immunity canon ‘is a tool for interpreting the law’ but

that it does not ‘displac[e] the other traditional tools of

statutory construction.’ ” Id.

The example of the Federal Tort Claims Act

(“FTCA”) illustrates this point and is analogous to the

waiver of immunity by the UN in this case. In the

FTCA, the federal government expressly waived its immunity for certain tort claims of a private law nature

through 28 U.S.C. § 2674. This statute provides: “The

United States shall be liable, respecting the provisions

of this title relating to tort claims, in the same manner

and to the same extent as a private individual under

like circumstances.” Id. In other words, as in the UN

reports and resolutions at issue here, the U.S. government’s acceptance of liability in the FTCA is an express waiver of immunity, subject to the exceptions and

limitations contained elsewhere in the act. Other sections of the FTCA, most notably § 2680, provide exceptions to this waiver, and jurisdictional provisions are

set forth in § 1346(b). Section 1346(b) also provides

additional descriptions of possible claims and limitations on these claims. To be clear, however, these jurisdictional provisions are not where the waiver of

immunity happens. As one scholar has noted: “Section

2674 states the substance of the waiver of sovereign

immunity in the FTCA. Although Subsection 1346(b)

is primarily a jurisdictional provision, conferring jurisdiction over FTCA actions in the United States District

Courts, it also includes language describing permissible claims.”12 In the absence of any jurisdictional provisions such as those contained in § 1346(b), the

express waiver in § 2674 would still be express and

still be valid—and, as discussed, supra, would be applicable in any court of competent jurisdiction.

Other federal statutes convincingly reinforce the

fact that express waiver of immunity can be made

through the assumption of liability. Indeed, it is quite

common. The U.S. government, for example, has

waived its sovereign immunity under both the Employment Opportunity (EEO) Act, 42 U.S.C.S. § 2000e-16,

and the Age Discrimination in Employment Act

(ADEA), 29 U.S.C.S. § 633a, by accepting liability if

government workplaces are not free of employment

and age discrimination. Federal environmental statutes waive immunity in this manner as well. In the

Clear Water Act, 33 U.S.C.S. § 1323, as well as the

Clean Air Act, 42 U.S.C.S. § 7418, there are express

waivers of immunity in an agreement to be subject to

liability under various state and federal laws. So too,

with federal CERCLA statute, as set forth in 42 U.S.C.

§ 9620(a)(1), otherwise known as the Superfund law.

CERCLA provides: “Each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of government)

shall be subject to, and comply with, this chapter in the

same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity,

Gregory Sisk, Litigating With The Federal Government

(West Academic Publishing, 2016), p. 134.

including liability under section 9607 of this title.” In

relation to the enactment, this Court held,

This is doubtless an “unequivoca[l] express[ion]” of the Federal Government’s

waiver of its own sovereign immunity, United

States v. Testan, 424 U.S. 392, 399 (1976), quoting United States v. King, 395 U.S. 1, 4 (1969),

since we cannot imagine any other plausible

explanation for this unqualified language.

Pennsylvania v. Union Gas Co., 491 U.S. 1, 10 (1989),

abrogated on other grounds in Seminole Tribe v. Florida, 517 U.S. 44 (1996).

Finally, consider the Fair Credit Reporting Act

(FCRA), which the Seventh Circuit in Bormes v. United

States, 759 F.3d 793, 795 (7th Cir. 2014), ruled was an

express waiver of the U.S. Government’s sovereign immunity from the jurisdiction of the courts:

Any “person” who willfully or negligently fails

to comply with the Fair Credit Reporting Act

is liable for damages. 15 U.S.C. §§ 1681n(a),

1681o(a). “Person” is a defined term: “any individual, partnership, corporation, trust, estate, cooperative, association, government or

governmental subdivision or agency, or other

entity.” 15 U.S.C. § 1681a(b)

759 F.3d, at 795 (emphasis in original).

Bormes continues,

The United States is a government. One

would suppose that the end of the inquiry. By

authorizing monetary relief against every

kind of government, the United States has

waived its sovereign immunity. And so we conclude.

Id. (emphasis in original).

Under the laws of various sovereign U.S. states as

well, a waiver of absolute immunity from legal process

is also found in the express assumption of liability. In

California, for example, under Cal. Gov’t Code, § 815, a

public entity is “not liable for injury” except as provided for elsewhere in the statute. Thus, in Section

815.2, “[a] public entity is liable for injury proximately

caused by an act or omission of an employee of the public entity within the scope of his employment. . . .” As

with federal examples, it is the acceptance or acknowledgement of the liability in California law that is the

waiver of immunity, not any jurisdictional provision.

In New York, “ . . . [w]hile pertinent decisions of

many appellate courts (including the Court of Appeals)

. . . have on occasion conflated references to the scope

of the State’s waiver of sovereign immunity with undefined usage of the term ‘jurisdiction,’ ” Brown v. State

of New York, 89 N.Y.2d 172, 180 (1996), “the State can

be made liable for injuries arising from the negligence

of its agents or servants, only by force of some positive

statute assuming such liability.” Sipple v. State, 96 N.Y.

284, 287 (1885). And in West Virginia, while the immunity of the sovereign described in the Constitution

is from legal process (W. Va. Const. Art. VI, § 35: “The

State of West Virginia shall never be made defendant

in any court of law or equity. . . .”), express waivers of

this immunity are often in the form of assumption of

liability. See, e.g., W. Va. Code § 29-12A-4; Univ. of W.

Va. Bd. of Trs. ex rel. W. Va. Univ. v. Graf, 205 W. Va. 118

(1998).13

The point, again, is not that sovereigns cannot, or

do not, also waive immunity from legal process by stating an immune entity is now subject to the jurisdiction

of the courts. Some do.14 But specific language related

to legal process or jurisdictional immunity is not

needed: in each of the examples cited, one with immunity from legal process who, subsequently, expressly assumes liability, thrusts off that blanket of immunity,

subject to any terms of the waiver itself as to jurisdictional, financial, temporal or procedural limitation.

This Court should affirm that such assumption of liability is indeed a common manner in which an entity

with absolute immunity waives its immunity and

agrees to “voluntarily discharge its moral obligations

in the same manner as the citizen is forced to perform

For additional examples of waiver of absolute immunity by

U.S. states via assumption of liability, see Vermont, 12 V.S.A.

§ 5601; New Jersey, N.J. Stat. § 59:2-2(a); Idaho Code § 6-903(1);

Kansas, K.S.A. § 75-6103; Florida, Fla. Stat. § 768.28; Maine, 14

M.R.S. § 8104-A(1); Massachusetts, ALM GL ch. 258, § 2; Minnesota, Minn. Stat. § 3.736; Montana, 2-9-102, MCA; Nebraska,

R.R.S. Neb. § 81-8,215; North Dakota, N.D. Cent. Code, § 32-12.202; Oklahoma, 51 Okl. St. § 153; Pennsylvania, 42 Pa.C.S.

§ 8522(b); Rhode Island, R.I. Gen. Laws § 9-31-1; South Carolina,

S.C. Code Ann. § 15-78-40; Virginia, Va. Code Ann. § 8.01-195.3;

Washington, Rev. Code Wash. (ARCW) § 4.92.090.

See, e.g., Alaska: Alaska Stat. § 09.50.250; Colorado:

C.R.S. § 24-10-108, et seq.; or Maryland: Md. Code. Ann., State

Gov’t § 12-101, et seq.

a duty which courts and Legislatures have so long

held, as to him, to be a legal liability.” Jackson v. State

of New York, supra.

a. The Second Circuit previously held that

liability and immunity are mutually exclusive jural opposites.

The conflicting nature of the Second Circuit’s ruling in this case is underscored by its long-held precedent that assumption of liability and jurisdictional

immunity are mutually exclusive jural opposites. In

Krenger v. Pennsylvania R. Co., the Second Circuit

wrote that “liability is quite differentiated from a mere

duty to pay damages and serves as . . . the opposite of

immunity or exemption. 174 F.2d 556, 559 (2d Cir.

1949) (emphasis in original).”

This analysis, too, has been adopted by the UN. A

report entitled “Jurisdictional Immunities Of States

And Their Property,” by the UN’s Special Rapporteur,

directly addressed this theory of liability and the “jural

relationship”:

“[P]ower” has been correlated to “liability”;

and the opposite of “liability”, which is “immunity”, is correlative to “no-power” or “disability”. Thus, in a theory of jural relationship,

if “a State has immunity from the jurisdiction

from another State”, the same expression

could be stated correlatively from the standpoint of the other State as: “Another State has

‘no-power’ to exercise its jurisdiction over a

State”.15

Thus, the UN understands quite well the jural relationship analysis: that an express assumption or acceptance of liability negates its opposite, immunity,

and removes the “disability” or “no-power” to exercise

jurisdiction in actions where such liability has been assumed.

III. A binding forum for the adjudication of

tort claims against the UN does not exist

and has never existed.

A common misconception is that the UN has binding claims processes in place for the adjudication of

claims for damages inflicted by the tortious acts of UN

peacekeeping forces. This is not true.16 Thus, while

A/CN.4/340 & Corr.1 and Add.1 & Corr.1, Third report on

jurisdictional immunities of States and their property, by Mr.

Sompong Sucharitkul, Special Rapporteur, Extract from the

Yearbook of the International Law Commission: 1981, vol.

II(1), at 132-133. Available at: http://legal.un.org/docs/?path=../ilc/

documentation/english/a_cn4_340.pdf&lang=EFS (last accessed

May 5, 2019).

Consider Justice Breyer’s dissent to this Court’s decision

in Jam v. Int’l Fin. Corp., ___ U.S. ___, 139 S. Ct. 759 (2019),

which, while perhaps accurate as to contract and other commercial claims, clearly is not as to tort claims (as this case has shown):

Other organizations have attempted to solve the liability/immunity problem by turning to multilateral, not

single-nation, solutions. The UN, for instance, has

agreed to “make provisions for appropriate modes of

settlement of . . . [d]isputes arising out of contracts or

other disputes of a private law character.” Convention

both the district court and the Second Circuit ruled

that the assumption of liability by the UN in Reports

A/51/389 and A/51/903 were limited to internal processes, the “standing claims commissions” referenced

in these reports do not exist, and have never existed in

the history of the UN. The Secretary-General acknowledges this in the reports, and the General Assembly

knew this when enacting UN Resolution A/52/247. The

Secretary-General also points out in A/51/389 that

other internal UN claims processes are voluntary and

nonbinding on the Organization, and indeed many

claims are often left unresolved, particularly as a UN

mission winds down.17 A final point of evidence can be

found in the fact that the claims of 5,000 victims of the

Haitian cholera plague that were presented to the UN

were dismissed without consideration as “not receivable.”18

So, despite the clear acknowledgement of liability

by the UN, it is quite impossible for a claimant to submit a claim to any binding UN forum for adjudication

of tort claims such as this. And this Court has long held

that the law will not read statutory enactments to

yield such impossible results: “Lex non intendit aliquid

impossible is a familiar maxim of the law. The supposition should not be indulged that [a legislative body] . . .

on Privileges and Immunities of the United Nations,

Art. VIII, § 29, 21 U.S.T. 1438, T.I.A.S. No. 6900, 139

S. Ct. 780.

UN Report A/51/389, ¶ 28.

See Laventure, et. al. v. United Nations (2d Cir. C.A., Case

No. 17-2908), Dkt. No. 41, p. 23 (December 29, 2017).

intended to make its protection depend upon the performance of conditions which it was physically impossible to perform.” Chew Heong v. United States, 112

U.S. 536, 554-555 (1884). Chew Heong is an immigration case involving an amendment to the Chinese Exclusion Act of 1882, wherein Congress required

Chinese laborers residing in the United States to obtain reentry certificates before they left the country if

they intended to return. Chew Heong, who left before

the amendment was enacted, attempted to return not

long after it went into effect. Lacking the certificate—

which could only be obtained in the United States—he

was denied permission to return. This Court ruled that

the enactment would not be read “to lead to injustice,

oppression, or an absurd consequence.” 112 U.S. at 555.

Petitioners submit to this Court that it is no more

possible for a victim of a tortious act by a UN peacekeeper to bring a claim before a binding UN claims process than it was for Chew Heong to travel freely, yet be

in the U.S. to obtain his reentry certificate at the same

time. Thus, in this case, the use of the term liability by

the Secretary-General could not have been referring to

these mythical or nonbinding processes, since this

would create an impossibility in the enactment that

this Court has long held it will not allow.

IV. The Secretary-General’s reports do not

state that the UN’s assumption of liability

was restricted to its internal claims processes, nor that the UN has retained immunity where liability is assumed.

While the Second Circuit held that any waiver of

immunity by the UN related solely to claims brought

before internal UN processes, nowhere in any of the

statements of the Secretary General, nor in the binding resolution of the General Assembly adopting these

reports, does it say this. Rather, the Second Circuit

(and the district court before it) suggests these reports

imply such limitation. The Second Circuit then combines parts of sentences from various sections of the

Secretary-General’s reports to justify its conclusion.

But in contrast to the out-of-context quotes in the

decisions of the Second Circuit and the district court, a

reading of the full reports reinforces that no direct limitation of the agreement to be liable to UN internal

processes were either stated or implied. Report

A/51/389, for example, stated that it will detail three

different things: (1) the scope of UN liability for activities of UN forces; (2) procedures for the handling of

third-party claims presented internally; and, (3) limitations of liability.19 Nowhere does it suggest that the

scope of UN liability as described in (1) is only in the

context of, or otherwise constrained by, the internal

procedure for handling third party claims review in (2),

or that this scope of liability is only within the context

UN Report A/51/389, ¶ 5.

of retained privileges and immunities. In fact, the report states the opposite:

The undertaking to settle disputes of a private law nature submitted against it and the

practice of actual settlement of such thirdparty claims—although not necessarily according to the procedure provided for under

the status-of-forces agreement—evidence the

recognition on the part of the United Nations

that liability for damage caused by members

of United Nations forces is attributable to the

Organization (emphasis added).20

What the district court and the Second Circuit

seem to be suggesting is that, simply by including this

agreement to be liable in the same reports that discuss

internal claims processes, the Secretary-General of the

UN, despite never saying so, must have intended this

assumption of liability to be restricted to these processes. But is such an interpretation enough to “bolt

the courtroom doors,” absent any other evidence to

support such a reading—and where such a reading creates a condition that is impossible to perform given the

undisputed definition of the term liability?

Notably, it is only in paragraph 7 of that 14-page

document that there is single mention of immunity—

the only mention in the entire 7,200-word document.

There, the Secretary-General states that the UN “has

undertaken in paragraph 51 of the model status-offorces agreement [SOFA] . . . to settle by means of a

Id., ¶ 8.

standing claims commission claims resulting from

damage caused by members of the force in the performance of their official duties and which for reasons of

immunity of the Organization and its Members could

not have been submitted to local courts.”21 The model

status-of-forces agreement referenced in this paragraph was written and published in 1990, five years

before the unambiguous assumption of liability in this

document.

Thus, the only mention of immunity in the Secretary-General’s report is in the past tense and references a model status-of-forces agreement prepared

long before the express acceptance of liability (and consequent waiver of immunity) in A/51/389. Contrary to

the Second Circuit’s ruling, it is highly implausible

that this single mention of immunity was intended to

cover the entire document, constraining the scope of

UN liability to a nonbinding claims process.

In addition to laying out financial and temporal

limits to the liability assumed in the UN’s express

waiver, the final section of A/51/389 also explains that

while the UN must deal with claims by third parties

where liability has been assumed, contributing Governments will be legally responsible for indemnifying

the UN in cases where damages are caused by the

“gross negligence or willful misconduct” of their own

peacekeeping forces.22 This provision, too, makes no

reference to either an internal claims settlement

Id., at ¶ 7.

Id., at ¶ 42.

process or a retention of immunity in circumstances

where liability is assumed.

In sum, it is highly implausible to suggest that the

statements in that report relating to the UN’s acceptance of liability were, in any way, confined to its

voluntary internal claims process. Nor does the Report

anywhere suggest an intent on the part of the UN to

maintain its privileges and immunities in those areas

where the UN has agreed to be liable. There is simply

no language to that effect. In fact, the UN’s clear, unambiguous intent is that immunity is waived in these

circumstances. To find otherwise would be to hold that

a single, isolated reference to immunity contained in a

paragraph relating to a status-of-forces agreement enacted years earlier somehow flows to every corner of

this document—a provision that applies as readily to

areas where liability is not assumed (such as for damages in the course of combat activities or operational

necessity). The laws of contractual or statutory interpretation do not permit parties to conjure language

missing from the clear text of a document. The document must be read as a whole.

In follow-up to A/51/389, on May 21, 1997, the UN

Secretary-General issued Report A/51/903 as a “supplemental” report.23 This report laid out further temporal and financial limitations to the liability of the

Organization, described the nonbinding internal

claims process, and recommended changes to the liability clause of the model status-of-forces agreement

UN Report A/51/903, ¶ 1.

(SOFA) that would recognize this new, clearly and unambiguously stated acceptance of liability.24 As in Report A/51/389, there is but a single mention of UN

immunity, in a paragraph discussing the prior version

of the model SOFA, one that existed before the express

assumption of liability was made in A/51/389.

Both A/51/389 and A/51/903 were expressly incorporated, agreed to and adopted by the UN General Assembly through UN Resolution 52/247, dated June 26,

1998. In A/52/247, the UN again expressly agreed to

assume liability for “third-party claims against the

Organization for personal injury, illness or death . . .

resulting from or attributable to the activities of members of peacekeeping operations in the performance of

their official duties.”25 There is no mention of the UN’s

immunity at all, and—as in each of the other documents that form the basis of this legislative enactment—no mention that such waiver of immunity is

restricted to an internal claims process.

Finally, it should be noted that the express assumption of liability contained in these reports is quite

limited. Report A/51/389 distinguishes between “tortious liability of the Organization for damage caused

in the ordinary operation of the force . . . and its liability for combat-related damage whether in the course of

a Chapter VII operation, or in a peacekeeping operation where force has been used in self-defence.”26 That

is, the Secretary-General clearly states that the waiver

Id., at ¶ 10.

UN General Assembly Resolution A/52/247, ¶ 5.

UN Report A/51/389, ¶ 3.

does not apply to the UN’s combat-related actions, nor

to actions grounded in operational necessity, but rather only to those damages resulting from the “ordinary operation of the force”—thus vastly limiting the

parameters of the waiver.27 A subsequent report of the

United Nations reinforces the limited nature of this acceptance of liability, noting that A/51/903 “ . . . deals

with third-party claims for personal injury, illness or

death and property loss or damage attributable to the

activities of members of peacekeeping operations in

the performance of their official duties. It does not

cover claims relating to troops nor does it apply in

cases of injury to civilian staff . . . in cases of gross fault

or wilful or criminal intent, the Organization would

seek recovery from the individual or the troopcontributing State concerned.”28 Notably, there is no

mention of immunity in this entire report.

A plaintiff has met its burden to survive dismissal under FRCP 12(h)(3) where an affirmative, plausible case has been made for

jurisdiction and there is no other plausible

explanation for the use of a term in a legislative enactment that has a well-known

meaning at common law and the law of the

United States.

The above review of the Secretary-General’s reports is intended to show that, at the pleading stage of

Id.

UN Report A/52/410, ¶ 4 (October 1, 1997), available at:

https://undocs.org/A/52/410 (last accessed May 9, 2019).

this litigation, Petitioners more than met their burden

to survive dismissal for lack of jurisdiction under

FRCP 12(b)(1) and 12(h)(3). Yet, in upholding the dismissal of Petitioners’ claims at the pleading stage,

without any plausible explanation as to why the UN

would use the term liability to refer to claims processes

that do not exist or are nonbinding, the Second Circuit

has impermissibly raised the bar for surviving dismissal under 12(b)(1) and 12(h)(3) to something akin to a

“beyond all reasonable doubt” standard. In other

words, the Second Circuit effective held that any alternate explanation for the UN’s acceptance of liability,

regardless of its impossibility or implausibility, is

enough to establish doubt as to the Organization’s actual intent. In holding plaintiffs at the pleading stage

under Rule 12(h)(3) to a standard that is clearly beyond any other this Court has enumerated for express

waiver of immunity in other contexts, the Second Circuit is in conflict with pleading standards set forth by

this Court—most notably the plausibility standards of

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and

Ashcroft v. Iqbal, 556 U.S. 662 (2009).

U.S. courts have held that the standard governing

Rule 12(h)(3) is the same as that governing a motion

under Rule 12(b)(1), See, e.g., Jo v. JPMC Specialty

Mortg., LLC, 248 F. Supp. 3d 417, 422 (W.D.N.Y. 2017),

and a Rule 12(b)(1) motion is subject to the same

standards as a motion to dismiss for failure to state a

claim under Rule 12(b)(6). Tarros S.p.A. v. United

States, No. 13 CIV. 1932 (JPO), 2013 WL 6084243, at

*4 (S.D.N.Y. Nov. 19, 2013), citing Lerner v. Fleet Bank,

N.A., 318 F.3d 113, 128 (2d Cir. 2003). If a plaintiff can

prove subject-matter jurisdiction by a preponderance

of the evidence, the case should not be dismissed. Wells

Fargo Bank, N.A. v. Ullah, No. 13 CIV. 0485 (JPO), 2014

WL 470883, at *2 (S.D.N.Y. Feb. 6, 2014).

Under Twombly and Iqbal, to survive a motion to

dismiss, a complaint must plead “enough facts to state

a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim will

have facial plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 678, citing Twombly, at 556. Moreover, while “ ‘[j]urisdiction

must be shown affirmatively . . . ’ ” APWU v. Potter, 343

F.3d 619 (2d Cir. 2003) (quoting Shipping Fin. Servs.

Corp v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998)), a

“plausible” claim is . . . less than a “probability requirement.” Twombly, at 556. As this Court has explained,

“ ‘[j]urisdiction . . . is not defeated . . . by the possibility

that the averments [in a complaint] might fail to state

a cause of action on which petitioners could actually

recover.’ What plaintiffs must allege to survive a jurisdictional challenge, then, ‘is obviously far less demanding than what would be required for the plaintiff ’s case

to survive a summary judgment motion’ or a trial on

the merits.” Helmerich & Payne Int’l Drilling Co. v. Bolivarian Republic of Venez., 415 U.S. App. D.C. 21, 2829, 784 F.3d 804, 811-12 (D.C. Cir. 2015), quoting Bell

v. Hood, 327 U.S. 678, 682 (1946).

A plausible, affirmative showing of subject matter

jurisdiction is the hurdle that Petitioners in this case

had to clear for this action to move forward. Plaintiffs

have far exceeded this standard, and the Second Circuit erred in finding to the contrary. Plaintiff ’s thus petition this Court to consider whether the Second

Circuit has impermissibly raised the pleading standard to survive dismissal under FRCP 12(h)(3).

------------------------------------------------------------------

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

JAMES F. HAGGERTY

Counsel of Record

LAW OFFICE OF JAMES F. HAGGERTY

45 Broadway, Suite 3140

New York, NY 10006

(212) 470-0800

jhaggerty@haggertylegal.com

PAUL M. TARR

LESTER SCHWAB KATZ

& DWYER LLP

100 Wall Street, 27th Floor

New York, NY 10005

(212) 964-6611

ptarr@lskdnylaw.com

May 10, 2019

MARK A. GOTTLIEB

NORTHEASTERN UNIVERSITY

SCHOOL OF LAW

360 Huntington Avenue

Boston, MA 02115

(617) 373-2026

mark@phaionline.org

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.