UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JACQUES J. POLAK, : : Plaintiff, : Civil Action No.: 08-1416 (RMU) : v. : Re Document Nos.: 2, 3 : INTERNATIONAL MONETARY FUND, : : Defendant. :
MEMORANDUM OPINION
GRANTING THE DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION ; DENYING THE PLAINTIFF’S MOTION FOR JURISDICTIONAL DISCOVERY
I. INTRODUCTION
This matter comes before the court on the defendant’s motion to dismiss for lack of
subject matter jurisdiction. The plaintiff, renowned economist Dr. Jacques Polak, commenced
the instant action against the defendant, the International Monetary Fund (“IMF”), alleging
negligence and negligence per se in the construction and maintenance of stairs on the IMF’s
premises. The defendant moves to dismiss the case, maintaining that the IMF is immune from
suit and that such immunity deprives the court of subject matter jurisdiction. In response, the
plaintiff denies that the defendant is immune and moves for a stay of the case pending
jurisdictional discovery on that issue. The court agrees that the defendant is immune from the
instant suit and grants the defendant’s motion to dismiss. In addition, because granting discovery
would not yield information that would bear on the defendant’s immunity, the court denies the
plaintiff’s motion for jurisdictional discovery. II. FACTUAL & PROCEDURAL BACKGROUND
On November 15, 2007, the plaintiff attended the defendant’s eighth annual Jacques
Polak Research Conference at the defendant’s headquarters in Washington, D.C. Compl. ¶ 6. As
the plaintiff was descending the stairs in the headquarters conference room, he fell and struck his
head, sustaining “serious, permanent, debilitating injuries.” Id. ¶ 8. As a result of these injuries,
the plaintiff asserts he requires ongoing medical care. Id. ¶ 9.
The plaintiff filed suit on August 14, 2008, alleging that the defendant was negligent in
failing to construct and maintain the stairs at a safe incline, warn the plaintiff about the condition
of the stairs and provide an adequate handrail. Id. ¶¶ 15-21. The plaintiff also claims the
defendant was negligent per se for failing to equip the conference room stairs with a handrail as
required by the District of Columbia Building Code. Id. ¶ 10.
The defendant moves to dismiss under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) on the grounds that it is immune from suit under both the Bretton Woods Agreements
Act (“BWAA”) and the International Organizations Immunities Act (“IOIA”). Def.’s Mot. to
Dismiss at 1. The plaintiff opposes the defendant’s motion to dismiss and moves to stay the case
pending jurisdictional discovery. See generally Mem. in Support of Pl.’s Opp’n to Def.’s Mot. to
Dismiss & Mot. for Stay (“Mem. in Support of Pl.’s Mot. for Stay”). The court now turns to the
applicable legal standard and the parties’ arguments.
III. ANALYSIS
A. Legal Standard for a Motion to Dismiss Pursuant to 12(b)(1)
Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies
2 outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938); see also Gen.
Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C. Cir. 2004) (noting that “[a]s a
court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction”).
Because “subject-matter jurisdiction is an ‘Art[icle] III as well as a statutory
requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal
court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins.
Corp. of Ir., Ltd. v. Compagnie des Bauxite de Guinea, 456 U.S. 694, 702 (1982)). On a motion
to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the
burden of establishing by a preponderance of the evidence that the court has subject matter
jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
Because subject matter jurisdiction focuses on the court’s power to hear the claim,
however, the court must give the plaintiff’s factual allegations closer scrutiny when resolving a
Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a
claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003); Grand Lodge of
Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). Thus, the court is
not limited to the allegations contained in the complaint. Hohri v. United States, 782 F.2d 227,
241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). When necessary, the court
may consider the complaint supplemented by undisputed facts evidenced in the record, or the
complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.
Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).
3 B. The Court Grants the Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction
The defendant urges the court to dismiss the instant suit because, under both the BWAA
and the IOIA, the defendant is absolutely immune from all forms of judicial process. Def.’s Mot.
to Dismiss at 1. The BWAA establishes that certain provisions of the defendant’s Articles of
Agreement “have full force and effect in the United States.” Id. at 3 (quoting 22 U.S.C. § 286h).
One of the Articles of Agreement incorporated by the BWAA provides that “[t]he [defendant], its
property and its assets, wherever located and by whomsoever held, shall enjoy immunity from
every form of judicial process except to the extent that it expressly waives its immunity for the
purpose of any proceedings or by the terms of any contract.” Def.’s Mot. at 4-5 (quoting Articles
of Agreement of the International Monetary Fund (“Articles of Agreement”), Art. IX, § 3
(emphasis added)). Because it has not waived its immunity, the defendant maintains, the Articles
of Agreement render it absolutely immune from this suit.1 Def.’s Mot. at 4.
In addition to relying on its Articles of Agreement, the defendant relies on the IOIA as an
independent source of immunity. Id. at 5. The IOIA confers designated international
organizations with “the same immunity from suit and every form of judicial process as is enjoyed
by foreign governments.” Id. at 3 (quoting 22 U.S.C. § 288a(b)). Because President Truman
designated the defendant as an international organization entitled to the privileges and
1 The defendant’s Secretary, Shailendra Anjaria, stated in an affidavit that the defendant’s Executive Board, which has sole authority regarding the issuance of a waiver of immunity from suit, “has not waived or authorized the waiver of the Fund’s immunity from judicial process with respect to the above-captioned litigation, with respect to personal injury suits generally, or by the terms of any contract with Plaintiff Jacques J. Polak.” See Def.’s Mot. to Dismiss, Ex. B ¶¶ 3-4.
4 immunities conferred by the IOIA, the defendant argues that it is absolutely immune from suit
based on the IOIA. Id.
The plaintiff disagrees, asserting that the defendant’s immunity under both its Articles of
Agreement, as incorporated by the BWAA, and the IOIA is limited by the functional necessity
doctrine. Mem. in Support of Pl.’s Mot. for Stay at 4-9. In other words, according to the
plaintiff, both statutes permit immunity only to the extent necessary to allow the organization to
fulfill its functions. Id. at 4-6. Thus, by way of example, the plaintiff explains that the defendant
is immune from suits relating to personnel management decisions because such immunity is
necessary for the defendant to fulfill its organizational functions. Id. at 6-8. In contrast, the
plaintiff argues, international organizations do not need to be free from common law negligence
claims to function effectively. Id. at 9-10. Based on this rationale, the plaintiff contends that the
defendant cannot claim immunity under either statute. Id. at 10-15.
The plaintiff’s argument does not persuade the court that the defendant is amenable to
suit. The BWAA provides that Article IX, §§ 2 through 9 of the defendant’s Articles of
Agreement “shall have full force and effect in the United States.” 22 U.S.C. § 286h (citing
Articles of Agreement). Article IX, § 3 states that the defendant is immune from “every form of
judicial process” unless it expressly waives its immunity. Articles of Agreement, Art. IX, § 3.
Similarly, the IOIA establishes that foreign governments and certain international organizations,
including the defendant, are “immun[e] from suit and every form of judicial process . . . except to
the extent that such organizations may expressly waive their immunity.” 22 U.S.C. § 288a(b).
Thus, the BWAA and the IOIA each provide a basis for immunity. The court will address each
in turn.
5 1. Immunity Under the BWAA
In support of his claim that the defendant’s immunity under the BWAA is circumscribed
by the functional necessity doctrine, the plaintiff cites Article IX, § 1 of the defendant’s Articles
of Agreement, which states: “To enable the [defendant] to fulfill the functions with which it is
entrusted, the status, immunities, and privileges set forth in this Article shall be accorded to the
[defendant] in the territories of each member.” Articles of Agreement, Art. IX, § 1. But the
Articles’ statement of purpose does not necessarily act as a limitation on the defendant’s
immunity. Cf. Brzak v. United Nations, 551 F. Supp. 2d 313, 318 (S.D.N.Y. 2008) (holding that
the United Nations is absolutely immune to suit, notwithstanding language in the United Nations
Charter similar to that in Article IX, § 1 of the defendant’s Articles of Agreement).2
Even more persuasive is the fact that the BWAA codified only §§ 2 through 9 of Article
IX. 22 U.S.C. § 286h. Because the BWAA did not incorporate § 1, that section cannot limit the
defendant’s immunity from suit. In accordance with this interpretation of the Articles of
Agreement as they relate to the defendant’s immunity from suit, another court in this district has
held that “[s]ection 3 of Article IX of the Agreement provides that the IMF shall enjoy immunity
from every form of judicial process except to the extent that it expressly waives its immunity.”
Kissi v. de Laroisiere, Civil Action No. 82-1267 (D.D.C. June 23, 1982). Given that the
defendant has not expressly waived the immunity conferred by the Articles of Agreement, as
codified by the BWAA, the court dismisses the instant suit for want of subject matter
jurisdiction.
2 Article 105 of the Charter of the United Nations provides that the United Nations “shall enjoy . . . such privileges and immunities as are necessary for the fulfillment of its purposes.”
6 2. Immunity Under the IOIA
The IOIA serves as a separate and independent source of immunity for international
organizations such as the defendant. 22 U.S.C. § 288a(b). Although the parties dispute the
scope of this immunity, this Circuit has held that “Congress’ intent was to adopt that body of law
only as it existed in 1945 – when immunity of foreign sovereigns was absolute.” Atkinson v.
Inter-American Dev. Bank, 156 F.3d 1335, 1341 (D.C. Cir. 1998). The Circuit reaffirmed this
holding in 2008, noting that “the IOIA provides absolute immunity from suit to organizations
such as the World Bank.” Murten v. Energoprojekt-Niskogradnja Co., 2008 WL 441836, at *1
(D.C. Cir. Feb. 14, 2008). There are only two exceptions to immunity conferred by the IOIA.
Mendaro v. World Bank, 717 F.2d 610, 613 (D.C. Cir. 1983). First, in certain circumstances not
applicable here, the President may limit the organization’s immunity. Id. Second, an
organization may expressly waive its immunity. Id.
In the presence of an express waiver, courts apply the functional necessity doctrine in
determining the scope of the waiver. See Osseiran v. Int’l Fin. Corp., 498 F. Supp. 2d 139, 144
(D.D.C. 2007), aff’d, 552 F.3d 836 (D.C. Cir. 2009) (explaining that “[o]nce . . . a waiver has
been identified, the scope of that waiver then must be assessed”) (emphasis added). In support of
his theory that the functional necessity doctrine governs here, the plaintiff attempts to draw
support from Mendaro, a case in which the court was tasked with interpreting an ambiguous
waiver of immunity in the World Bank’s Articles of Agreement. Mendaro, 717 F.2d at 617-20.
But the question before the Mendaro court was how broadly to construe the express waiver of
immunity, not whether the World Bank’s general grant of immunity was limited by the functional
necessity doctrine. Id. at 617. It was in its evaluation of the scope of the express waiver that the
7 court drew upon the functional necessity doctrine, concluding that the World Bank had waived
its immunity relating to commercial transactions but not to its internal affairs. Id. at 618-19.
Here, in contrast, there is no indication that the defendant has expressly waived its immunity.
Absent a waiver of immunity, the plaintiff’s reliance on the functional necessity test is misplaced.
As a result, the court concludes that the defendant is immune under the IOIA and the instant suit
must be dismissed for want of subject matter jurisdiction.3
C. The Court Denies the Plaintiff’s Motion for a Stay Pending Jurisdictional Discovery
“Assuming arguendo that the court finds Defendant immune under the IOIA,” the
plaintiff requests that the court “stay the action to [allow the plaintiff to] conduct limited
discovery on the issue of Defendant’s immunity.” Mem. in Support of Pl.’s Mot. for Stay at 17.
The plaintiff argues that whether the defendant has expressly waived its immunity is a legal
question that requires proving facts, and that the defendant’s affidavit is insufficient to prove that
the defendant has not waived its immunity. Id. at 16. The defendant counters that the only facts
of consequence – whether the defendant is an international organization and whether it has
expressly waived its immunity – are not contested. See Def.’s Opp’n to Pl.’s Mot. for Stay at 2.
According to the defendant, its absolute immunity from all forms of judicial process precludes
jurisdictional discovery without a compelling justification, which is absent here. Id.
This Circuit has held that “immunity, where justly invoked, properly shields defendants
not only from the consequences of litigation’s results, but also from the burden of defending
themselves.” Tuck v. Pan Am. Health Org., 668 F.2d 547, 549 (D.C. Cir. 1981). In the Foreign
3 The defendant also seeks dismissal under Rule 12(b)(6), a motion the court need not address here because the suit will be dismissed for want of subject matter jurisdiction under Rule 12(b)(1).
8 Sovereign Immunities Act (“FSIA”) context, courts have declined to grant jurisdictional
discovery if it would “frustrate the significance and benefit of entitlement to immunity from
suit.” Crist v. Republic of Turk., 995 F. Supp. 5, 12 (D.D.C. 1998) (quoting El-Fadl v. Cent.
Bank of Jordan, 75 F.3d 668, 671 (D.C. Cir. 1996)). The court must exercise additional caution
here because, unlike the FSIA, in which an implied waiver may serve as a limitation on
immunity, see 28 U.S.C. § 1605(a), only an express waiver can deprive the defendant of
immunity in this case, see Articles of Agreement, Art. IX, § 3; 22 U.S.C. § 288a(b). In other
words, the range of situations permitting jurisdictional discovery is narrower here than it would
be in the context of the FSIA. Nevertheless, limited discovery “may be proper [if] pertinent facts
bearing on the issue of jurisdiction are in dispute.” Osseiran, 498 F. Supp. 2d at 145 n.2.
Pursuant to the Articles of Agreement and the IOIA, the defendant is immune from
“every form of judicial process” unless the defendant expressly waives its immunity. Articles of
Agreement, Art. IX, § 3; 22 U.S.C. § 288a(b). Discovery is a form of judicial process, see, e.g.,
Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 449 (D.C. Cir. 1990), and
thus the only pertinent fact bearing on the jurisdictional issue is whether the defendant has, by
contract with the plaintiff or in its Articles of Agreement, expressly waived its immunity, see
Articles of Agreement, Art. IX, § 3; 22 U.S.C. § 288a(b). Rather than confining his proposed
interrogatories to the existence of an express waiver, however, the plaintiff seeks a broad range
of information relating to the defendant’s liability in, and immunity from, prior tort claims. See
generally Pl.’s Mot. for Stay, Attach. A. These requests are expressly premised on the plaintiff’s
erroneous claim that the defendant’s immunity “derives from the functional necessity doctrine.”
See Pl.’s Reply in Support of Mot. for Stay at 4-5. But, as discussed supra Part III.B, the
9 functional necessity doctrine does not alter the defendant’s immunity unless there is an express
waiver.
Therefore, insofar as the plaintiff’s discovery requests are premised on the applicability of
the functional necessity doctrine, those requests are not justified. Furthermore, even if discovery
were to reveal prior, unrelated instances in which the defendant waived its immunity, such
discovery would not bear on whether the defendant waived its immunity in this case because
neither the Articles of Agreement nor the IOIA permits waiver by implication. See Articles of
Agreement, Art. IX, § 3 (stating that “[t]he Fund . . . shall enjoy immunity from every form of
judicial process except to the extent that it expressly waives its immunity”); 22 U.S.C. § 288a(b)
(directing that “[i]nternational organizations . . . shall enjoy the same immunity from suit and
every form of judicial process as is enjoyed by foreign governments, except to the extent that
such organizations may expressly waive their immunity”).
In sum, contrary to the plaintiff’s assertions, the only relevant inquiry is whether the
defendant has expressly waived its immunity to this suit. The defendant has denied by affidavit
that an express waiver exists. See Def.’s Mot. to Dismiss, Ex. B. And even while maintaining
that the defendant’s affidavit is insufficient, crucially, the plaintiff does not allege that the
defendant has expressly waived its immunity. See generally Compl.; Mem. in Support of Pl.’s
Mot. for Stay; Pl.’s Mot. for Stay; Pl.’s Reply in Support of Mot. for Stay. Absent a specific,
well-founded allegation that an express waiver exists, the plaintiff’s proposed discovery, which
requests information well beyond the scope of relevant information, does “not provide[] the court
with any basis upon which to grant [his] request for jurisdictional discovery.” Crist, 995 F.
Supp. at 12-13 (rejecting the plaintiff’s discovery request because it provided the court with
10 nothing more than “conjecture and surmise”). Because the court has concluded that the
defendant is immune from all forms of judicial process, including discovery, and because the
plaintiff has failed to show that jurisdictional discovery would alter the court’s holding, the court
denies the plaintiff’s request.
IV. CONCLUSION
For the foregoing reasons, the court grants the defendant’s motion to dismiss for lack of
subject matter jurisdiction and denies the plaintiff’s motion to stay the action pending
jurisdictional discovery. An Order consistent with this Memorandum Opinion is separately and
contemporaneously issued this 28th day of September, 2009.
RICARDO M. URBINA United States District Judge