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Zuza v. Office of High Representative

United States Court of Appeals, District of Columbia Circuit

May 30, 2017

Zoran Zuza, Appellant
v.
Office of the High Representative, et al., Appellees

          Submitted March 2, 2017

         Appeal from the United States District Court for the District of Columbia (No. 1:14-cv-01099)

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

          Mark A. Cymrot was on brief for the appellees.

          Benjamin C. Mizer, Principal Deputy Assistant Attorney General at the time the brief was filed, United States Department of Justice, H. Thomas Byron, III, and Edward Himmelfarb, Attorneys, were on brief as amicus curiae in support of the appellees.

          Before: Henderson, Tatel and Srinivasan, Circuit Judges.

          OPINION

          Karen LeCraft Henderson, Circuit Judge

         This case presents a straightforward question: What happens to a pending lawsuit when the defendants establish that they are statutorily immune from "legal process"? We conclude that it must cease. We therefore affirm the district court's dismissal for lack of subject matter jurisdiction.

         I. BACKGROUND

         At the start of the 1990s, the Socialist Federal Republic of Yugoslavia (Yugoslavia) was a multiethnic federation in southeastern Europe. But throughout the early 1990s, the country began to disintegrate. Bosnia and Herzegovina-one of Yugoslavia's six constituent republics-declared its independence in early 1992. A bloody conflict ensued, ending several years later with the 1995 Dayton Peace Agreement (Agreement). The Agreement established Bosnia and Herzegovina as an independent, democratic and multiethnic state with two separate political subdivisions-the Republika Srpska and the Federation of Bosnia and Herzegovina. It also established the Office of the High Representative (OHR), a body charged with overseeing parts of the Agreement's implementation on behalf of the international community. The OHR receives "political guidance" from the Steering Board of the Peace Implementation Council (PIC), the latter comprising fifty-five countries and agencies that support the peace process in various ways. Supplemental Appendix 11-12.

         In the years following the Agreement, the PIC formally convened several times. At one such gathering in Bonn, Germany in December 1997, the PIC granted the High Representative authority to "mak[e] binding decisions, as he judges necessary, on . . . measures to ensure implementation of the Peace Agreement throughout Bosnia and Herzegovina." Id. at 37. The measures include "actions against persons holding public office or officials . . . who are found by the High Representative to be in violation of legal commitments made under the Peace Agreement or the terms for its implementation." Id. One year later, at its December 1998 Madrid Conference, the PIC determined that "leaders whom the High Representative . . . bar[s] from official office may also be barred from running in elections and from any other elective or appointive public office and from office within political parties until further notice." Id. at 66.

         In June 2004, then-High Representative Jeremy Ashdown removed Zoran Zuza from his post in the Republika Srpska government. Ten years later, Zuza sued the OHR, Ashdown and Valentin Inzko, the current High Representative. Zuza v. Office of High Representative, 107 F.Supp.3d 90, 92 (D.D.C. 2015). On June 4, 2015, the district court determined that all defendants were statutorily immune to Zuza's suit under the International Organizations Immunities Act (IOIA), 22 U.S.C. §§ 288 et seq. As the court explained, the IOIA generally extends immunity to an international organization, its officers and its employees, if the United States participates in it and if the President has designated it as entitled to immunity through an executive order. 22 U.S.C. §§ 288, 288a(b), 288d(b).[1] To extend such protection to the OHR, the Congress in 2010 enacted legislation making the OHR immune "in the same manner, to the same extent, and subject to the same conditions" as an international organization in which the United States participates. Extending Immunities to the Office of the High Representative in Bosnia and Herzegovina and the International Civilian Office in Kosovo Act of 2010, sec. 2, § 17, 124 Stat. 1260 (2010) (codified at 22 U.S.C. § 288f-7). On March 8, 2011, the President issued an Executive Order formally extending IOIA immunity to the OHR, its officers and its employees. Exec. Order No. 13, 568, 76 Fed. Reg. 13, 497 (Mar. 8, 2011). Given this history, the district court readily concluded OHR, Ashdown and Inzko were immune from Zuza's suit, which it accordingly dismissed for lack of subject matter jurisdiction.

         Shortly thereafter, Zuza sought reconsideration. Among other things, he argued that Ashdown and Inzko had not complied with section 8(a) of the IOIA and so were not entitled to immunity. Section 8(a) provides that no person is entitled to IOIA immunity until one of three conditions precedent is fulfilled. 22 U.S.C. § 288e(a). The first is met when the person seeking immunity "ha[s] been duly notified to and accepted by the Secretary of State as a representative, officer, or employee[.]" Id.[2] The district court ordered supplemental briefing and requested a statement of interest from the United States. The United States responded that Ashdown and Inzko had been notified to and accepted by the Secretary of State (Secretary) and thus qualified for immunity.

         The defendants and the United States submitted four letters substantiating Ashdown's and Inzko's notification and acceptance. The first was a June 2011 letter from Inzko to then-Secretary Hillary Clinton, notifying her of nearly three dozen OHR officers and employees. That list included Inzko but not Ashdown. The other three letters were all dated August 2015 or later, meaning they were written well after Zuza brought suit. On August 13, 2015, Inzko wrote then-Secretary John Kerry to "formally present and 'notify'" Ashdown to him. Supplemental Appendix 135. Then, on August 17, 2015, Inzko wrote Ambassador Gentry O. Smith to "request written confirmation that the notifications of Lord Ashdown and [Inzko] were accepted by the Secretary of State." Joint Appendix 105. And finally, on November 20, 2015, Clifton Seagroves, the Acting ...


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