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DONALD v. ORFILA

July 30, 1985

CARR L. DONALD, Plaintiff,
v.
ALEJANDRO ORFILA, Defendant


Harris


The opinion of the court was delivered by: HARRIS

This case now is before the Court on the motion of the defendant to dismiss for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b). The Court holds that dismissal is warranted because the defendant, the former Secretary General of the Organization of American States (OAS) is absolutely immune from liability for actions resulting in the termination of the plaintiff's employment at the OAS.

 The defendant's claim of immunity is based on three sources: The International Organizations Immunities Act of 1945 (IOIA), 22 U.S.C § 288d(b); the OAS Charter, Feb. 27, 1967, 2 U.S.T. 2394, T.I.A.S. No. 2361, as amended, 21 U.S.T. 607, T.I.A.S. No. 6849; and general principles of international law. The Court need look only to the first to dispose of this case.

 The IOIA confers immunity if the following requirements derived from § 288d(b) are met:

 
1. The OAS must be a public international organization with participation by the United States as a member under treaty or an Act of Congress, and recognized by Executive Order of the President as eligible to receive the privileges and immunities granted by § 288.
 
2. The defendant must have been accepted as and notified by the Department of State regarding his appointment as Secretary General of the OAS.
 
3. The OAS must not have waived immunity under § 288d(b).
 
4. The acts complained of must have been performed by the defendant in his official capacity and must have fallen within his functions as Secretary General of the OAS.

 The plaintiff argues that the last requirement cannot be met because the defendant, in terminating the plaintiff's employment, acted in bad faith to cover up his own improprieties in office. *fn1" Such allegedly evil personal motives, it is contended, would remove the defendant's actions from the ambit of functional duties performed in his official capacity to nonfunctional duties beyond the scope of his authority. The plaintiff argues further that even if the immunity applies, it is qualified rather than absolute in nature.

 The plaintiff's arguments confuse and erode the distinction between absolute and qualified immunity. By allowing motivation to be initially determinative of the application of either type of immunity, the Court would emasculate the essence of absolute immunity for if immunity is absolute, the suit is defeated at the outset with no inquiry as to motivation. Only with regard to qualified immunity does the inquiry proceed to the motivation and circumstances of the actions in question. See Imbler v. Pachtman, 424 U.S. 409, 419 n.13, 96 S. Ct. 984, 989 n. 13, 47 L. Ed. 2d 128 (1976). *fn2" Motivation, the primary determinative factor of qualified immunity, cannot convert official actions within the scope of absolute immunity into those beyond the scope of immunity. Therefore, the Court rejects motivation as the initial inquiry and instead focuses on the nature of the immunity conferred by the IOIA.

 The plaintiff bases his contention that the immunity is qualified on the language of the IOIA, i.e., that certain requirements as specified here previously must be met. The qualifying language of the statute is, however, neither conclusive of nor synonymous with the nature of the resulting immunity. Rather, the statute limits merely the application or, in other words, the scope of the immunity.

 There are no precedents directly on point but inferences can be drawn from cases with similar questions. In discussing § 288d(b), the District Court for the Southern District of New York stated: "The foregoing provision adopted a functional criterion for determining the scope of immunity." United States v. Melekh, 190 F. Supp. 67, 79 (S.D.N.Y. 1960). In Melekh, the defendant's actions did not grow out of his official actions, but the Court said if the actions had been ancillary to his United Nations functions, the defendant would have received "complete immunity" under the IOIA. Id. at 79-80.

 The Court of Appeals for the District of Columbia Circuit stated with regard to the immunity of an organization ...


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