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applying Verdugo to case in which plaintiff invoked Fifth and Fourteenth Amendment protections as “a citizen of Portugal and Italy” but rejecting plaintiff could bring claims because plaintiff proffered “no evidence of any connection to the United States, ” employer outside of United States, and conduct occurred outside of the United States
Summary of this case from Afzal v. Am. Bd. of Internal Med.Opinion
No. 08-3999-cv.
March 3, 2010.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Edward Patrick Flaherty, Schwab, Flaherty Associes, Geneva, Switzerland, for Plaintiff-Appellant.
Emily E. Daughtry, Assistant United States Attorney (David S. Jones, Assistant United States Attorney, Lev L. Dassin, Acting United States Attorney, on the brief), Office of the United States Attorney for the Southern District of New York, New York, New York, for Intervenor.
PRESENT: PIERRE N. LEVAL, ROSEMARY S. POOLER, B.D. PARKER, Circuit Judges.
SUMMARY ORDER
Maria Do Rosario Veiga appeals from the judgment of the United States District Court for the Southern District of New York (Marrero, J.) dismissing her claims for lack of subject-matter jurisdiction. Rosario Veiga brought suit against the World Meteorological Organisation (the "WMO") and several individual defendants after, she alleges, she was wrongly dismissed from her position at the WMO. She asserts that federal courts have jurisdiction over her claims, which include breach of contract, defamation, and violations of the Racketeering Influenced Corrupt Organization Act, 18 U.S.C. § 1962(c) ("RICO"), by virtue of the Alien Tort Statute, 28 U.S.C. § 1350 (the "ATS"). Rosario Veiga and the individual defendants are all residents of foreign nations; all but one are also foreign nationals. All relevant events occurred in Geneva, Switzerland. We assume familiarity with the underlying facts and procedural history of this case, as well as the issues on appeal.
On appeal, Rosario Veiga argues that the district court erred in 1) ruling that she lacked standing to raise constitutional objections to the International Organizational Immunities Act, 22 U.S.C. § 288a (the "IOIA"), because she is a non-resident foreign national; 2) that the IOIA is unconstitutional; 3) that the IOIA does not grant as sweeping an immunity as the district court accorded the defendants; and 4) that immunities accorded the defendants violate the International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171, (the "ICCPR"). Finding no error, we affirm.
DISCUSSION
We review a district court's dismissal of a claim for lack of subject-matter jurisdiction de novo. Flores v. Southern Peru Copper Corp., 414 F.3d 233, 241 (2d Cir. 2003). Rosario Veiga does not dispute that the WMO is immune under the IOIA, and we agree that it is. The remaining dispute is whether that immunity is constitutional. We do not address whether Rosario Veiga, a non-resident foreign national, has standing to claim the protections of various constitutional provisions, because we conclude that her constitutional arguments fail.
Rosario Veiga argues that the immunity granted by the IOIA violates numerous constitutional provisions, including 1) the Fifth Amendment's just compensation clause; 2) the Fifth Amendment's due process clause's protection of procedural rights; 3) the Fifth Amendment's due process clause's protection of substantive rights; 4) the First Amendment's petition clause; and 5) the Seventh Amendment's jury clause. We confronted and rejected similar arguments in Brzak v. United Nations, 597 F.3d 107 (2d Cir. 2010). As we stated in Brzak, "Each of these arguments fail, as each does no more than question why immunities in general should exist. The short — and conclusive — answer is that legislatively and judicially crafted immunities of one sort or another have existed since well before the framing of the Constitution, have been extended and modified over time, and are firmly embedded in American law." Rosario Veiga offers no principled argument explaining why the immunity she challenges in this case is different. Therefore, Rosario Veiga's claims were dismissed correctly.
Rosario Veiga also claims that the application of immunity would violate the ICCPR. This argument fails because the United States ratified the treaty subject to the understanding it was not self-executing; and, we have concluded that this understanding means that the ICCPR does not create a private right of action. See Flores v. Southern Peru Copper Corp., 414 F.3d 233, 258 n. 35 (2d Cir. 2003). Rosario Veiga also claims that the immunity that the IOIA grants to the individual defendants is not as broad as the district court held it to be; however, this claim is waived since it was not raised below. See In Re Nortel Networks Corp. Securities Litigation, 539 F.3d 129, 132 (2d Cir. 2008).
We have considered appellant's remaining arguments and find them to be without merit.
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.