Ronald Tuck, Appellant, v. Pan American Health Organization, et al, 668 F.2d 547 (D.C. Cir. 1981)

Ronald Tuck filed suit in the United States District Court for the District of Columbia on June 23, 1980, against the Pan American Health Organization ("PAHO") and its Director, Dr. Hector R. Acuna. On November 14, 1980, the District Court dismissed the suit for failure to state a claim against the defendants due to an absence of "state action." We affirm in part the dismissal of Tuck's suit, but for reasons other than those relied upon by the District Court; however, we reverse in part and remand with respect to certain issues not addressed by the District Court.

The PAHO is a recognized international organization with its headquarters in Washington, D.C. The purpose of the organization is to "promote and coordinate efforts of the countries of the Western Hemisphere to combat disease, lengthen life, and promote the physical and mental health of the people."¹  In his complaint to the District Court, Tuck alleged that the PAHO and Dr. Acuna (1) breached and tortiously interfered with Tuck's contract with the PAHO Staff Association (an entity apparently separate from the PAHO but consisting of most or all PAHO employees) to provide legal services to the Staff Association and its members, (2) discriminated against Tuck on the basis of race in violation of the Fifth and Fourteenth Amendments, and (3) interfered with Tuck's attorney-client relationships with PAHO employees in violation of the First and Fifth Amendments. App. 2-4.

The defendants moved to dismiss the suit on jurisdictional and immunity grounds. App. 5. The District Court did not pass upon these issues, but instead dismissed the suit for failure to state a claim against these defendants due to the absence of governmental action. Tuck v. Pan American Health Organization, Civ. No. 80-1546 (D.D.C. Nov. 14, 1980); App. 160-61. Tuck then brought this appeal.

Jurisdiction is, of necessity, the first issue for an Article III court. The federal courts are courts of limited jurisdiction, and they lack the power to presume the existence of jurisdiction in order to dispose of a case on any other grounds. See, e.g., B ors v. Preston, 111 U.S. 252, 4 S. Ct. 407, 28 L. Ed. 419 (1884); Turner v. President, Directors & Co. of the Bank of North America, 4 U.S. (4 Dall.) 8, 11, 1 L. Ed. 718 (1799).² 

In the instant case, we find that the District Court properly had jurisdiction to consider Tuck's claims. Counts II and III of the complaint allege violations of Tuck's and his client's constitutional liberties, thus furnishing the court with federal question jurisdiction. 28 U.S.C.A. § 1331 (Supp. 1981).³  Furthermore, although Count I states a common law claim, it too was properly before the District Court through the application of pendent jurisdiction. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966).

We turn next to the issue of immunity. We purposely consider the defendants' asserted immunity defenses before we consider plaintiff's claims on the merits. As has been frequently noted, immunity, where justly invoked, properly shields defendants "not only from the consequences of litigation's results but also from the burden of defending themselves." Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S. Ct. 1425, 1427, 18 L. Ed. 2d 577 (1967) (per curiam), quoted in Davis v. Passman, 442 U.S. 228, 235 n.11, 99 S. Ct. 2264, 2271 n.11, 60 L. Ed. 2d 846 (1979). This shield would be lost if the merits of a complaint were fully tried before the immunity question was addressed.⁴ 

Upon consideration of the claims raised by appellant Tuck, we find that appellees' are in most respects immune from suit in District Court. However, like the panel of this court in Broadbent v. Organization of American States, 628 F.2d 27 (D.C. Cir. 1980), we need not decide whether the International Organizations Immunities Act of 1945, 22 U.S.C. § 288a(b) (1976), when read in light of the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1604, 1605 (1976), grants the PAHO absolute or restrictive immunity.⁵  After full review of the parties' arguments, we conclude that even under the less expansive restrictive immunity standard, which permits a lawsuit based on "commercial activity" to be maintained against a sovereign without its consent, 28 U.S.C. § 1605(a) (2) (1976), the PAHO is immune from suit in this case. Tuck's claims arise from the PAHO's supervision of its civil service personnel and from its provision and allocation of office space. Neither constitutes a "commercial activity" potentially subjecting the PAHO to suit. See 28 U.S.C. § 1603(d) (1976); Broadbent v. Organization of American States, 628 F.2d 27, 33-36 (D.C. Cir. 1980).⁶  Because the PAHO is immune from this suit if restrictive immunity applies, it is a fortiori immune if absolute immunity applies.

We also find Dr. Acuna immune from suit in his official capacity. To the extent that the acts alleged in the complaint relate to Dr. Acuna's functions at PAHO Director, the provisions of 22 U.S.C. § 288d(b) (1976) protect him from suit.⁷ 

The District Court, however, did not pass upon Tuck's claims against Dr. Acuna in his individual capacity.⁸  Although our immunity holdings require dismissal of Counts II and III of the complaint, thereby depriving the court of any pendent jurisdiction over the common law claims in Count I, see United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966), it is possible that the District Court might have diversity jurisdiction over the common law claims against Dr. Acuna individually. 28 U.S.C. § 1332(a) (3) (1976). Because the District Court did not consider this possibility, we remand the case for the District Court to determine whether Tuck may amend his complaint to allege diversity jurisdiction. See 28 U.S.C. § 1653 (1976); Fed. R. Civ. P. 15(a). If the District Court allows Tuck to so amend his complaint, it will be the District Court's responsibility to resolve any disputes over the existence of diversity jurisdiction and to decide whether Tuck has alleged any actions taken by Dr. Acuna in his individual capacity, thereby potentially subjecting him to liability.

We affirm the judgment of the District Court dismissing the action against the Pan American Health Organization and against Dr. Acuna in his official capacity as PAHO Director. We, however, reverse the District Court's dismissal of the common law claims against Dr. Acuna in his individual capacity and remand the case for the District Court's consideration of those claims in a manner consistent with this opinion.

So ordered.