United States Court of Appeals, District of Columbia Circuit
February 6, 2017
from the United States District Court for the District of
Columbia (No. 1:15-cv-00612)
Richard L. Herz argued the cause for appellants. With him on
the briefs were Marco B. Simons and Michelle C. Harrison.
Gupta was on the brief for amicus curiae Daniel Bradlow in
support of appellants.
Jennifer Green was on the brief for amicus curiae Dr. Erica
Gould in support of appellants.
Francis A. Vasquez, Jr. argued the cause for appellee. With
him on the brief was Maxwell J. Hyman.
Jeffrey T. Green and Sena N. Munasifi were on the brief for
amicus curiae The International Bank for Reconstruction and
Development, et al. in support of appellee.
Before: Pillard, Circuit Judge, and Edwards and Silberman,
Senior Circuit Judges.
Silberman, Senior Circuit Judge
a group of Indian nationals, challenge a district court
decision dismissing their complaint against the International
Finance Corporation (IFC) on grounds that the IFC is immune
from their suit. The IFC provided loans needed for
construction of the Tata Mundra Power Plant in Gujarat,
India. Appellants who live near the plant alleged-which the
IFC does not deny-that contrary to provisions of the loan
agreement, the plant caused damage to the surrounding
communities. They wish to hold the IFC financially
responsible for their injuries, but we agree with the
well-reasoned district court opinion that the IFC is immune
to this suit under the International Organizations Immunities
Act, and did not waive immunity for this suit in its Articles
are fishermen, farmers, a local government entity, and a
trade union of fishworkers. They assert that their way of
life has been devastated by the power plant.
IFC, headquartered in Washington, is an international
organization founded in 1956 with over 180 member countries.
It provides loans in the developing world to projects that
cannot command private capital. IFC Articles, art. III
§3(i), Dec. 5, 1955, 7 U.S.T. 2197, 264 U.N.T.S. 117.
The IFC loaned $450 million to Coastal Gujarat Power Limited,
a subsidiary of Tata Power, an Indian company, for
construction and operation of the Tata Mundra Plant. The loan
agreement, in accordance with IFC's policy to prevent
social and environmental damage, included an Environmental
and Social Action Plan designed to protect the surrounding
communities. The loan's recipient was responsible for
complying with the agreement, but the IFC retained
supervisory authority and could revoke financial support for
according to the IFC's own internal audit conducted by
its ombudsman, the plant's construction and operation did
not comply with the Plan. And the IFC was criticized by the
ombudsman for inadequate supervision of the project. Yet the
IFC did not take any steps to force the loan recipients into
compliance with the Plan.
appellants' claims are almost entirely based on tort:
negligence, negligent nuisance, and trespass. They do,
however, raise a related claim as alleged third party
contract beneficiaries of the social and environmental terms
of the contract. According to appellants, the IFC is not
immune to these claims, and, even if it was statutorily
entitled to immunity, it has waived immunity.
are swimming upriver; both of their arguments run counter to
our long-held precedent concerning the scope of international
organization immunity and charter-document immunity waivers.
relies on the International Organizations Immunities Act
(IOIA), which provides that international organizations
"shall enjoy the same immunity from suit . . . as is
enjoyed by foreign governments, except to the extent that
such organizations may expressly waive their immunity for the
purpose of any proceedings or by the terms of any
contract." 22 U.S.C. § 288a(b). The President
determines whether an organization is entitled to such
immunity. 22 U.S.C. § 288. The IFC has been designated
an international organization entitled to the
"privileges, exemptions, and immunities" conferred
by the statute. Exec. Order No. 10, 680, 21 Fed. Reg. 7, 647
(Oct. 5, 1956).
response to the IFC's claim of statutory entitlement
under the IOIA, appellants rather boldly assert that
Atkinson v. Inter-Am. Dev. Bank, 156 F.3d 1335 (D.C.
Cir. 1998), our leading case on the immunity of international
organizations under that statute, should not be followed.
Atkinson held that foreign organizations receive the
immunity that foreign governments enjoyed at the time the
IOIA was passed, which was "virtually absolute
immunity." Id. at 1340 (quoting Verlinden
B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486
(1983)). And that immunity is not diminished even if the
immunity of foreign governments has been subsequently