UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) MANUEL GUDIEL GARCIA

, et al.

, ) ) Plaintiff s , ) )

v. ) Civil Actio n No. 1 1

- 527 (RBW) ) KATHLEEN SEBELIUS

, ) Secretary of Health and Human Services, ) et al., ) ) Defendant s

. ) ____________________________________)

MEMORANDUM OPINION

The plaintiffs brought this action under the Alien Tort S tatute, 28 U.S.C. § 1350 (2006),

and the United States Constitution seeking redress for “non

- consensual human medical

experimentation that took place in Guatemala from . . . 1946 to 1953, and any subsequent

medical testing that lasted beyond 1953 at the ha nds of American and Guatemalan doctors and

government officials . . . who were continuing the initial program.” First Amended Class Action

Complaint for Injunctive Relief and Damages ¶ ¶ 2, 14. By Memorandum Opinion and Order

dated June 13, 2012, the Cour t granted the defendants’ various motions to dismiss and denied the

plaintiffs’ motion for entry of default judgment as to defendant Mirta Roses. Garcia v. Sebelius

, 867 F. Supp. 2d 125, 129

- 30 (D.D.C. 2012). However, the Court “ condition [ed] its vacatur of

the Clerk’ s [entry of] default” as to defendant Roses “ upon Roses’s reimbursement of the

plaintiffs’ reasonable fees and costs .” Id. at 140. In a subsequent status report, Roses questioned

(for the first time) whether this Cour t had the authority to impose costs upon her, which led the2 Court to order supp lemental briefing on this issue. 1 Upon consideration of the parties’

supplemental briefs

, 2 the Court concludes for the following reasons that the Clerk’s entry of

default against Roses was void from the outset based on Roses’s statutory i mmunity, and that the

Court therefore erred in attempting to place condit ions on its vacatur of the entry of default

. Accordingly, the Court will vacate in part its June 13, 2012 Memorandum Opinion and Order

and stri ke the Clerk’s entry of default from the docket.

The Court discussed the background of this case at length in its prior opinion and will not

do so again here. Suffice it to say that the c urrent controversy was generated by the following

passage from the Court’ s prior opinion:

The plaintiffs maintain that if the Court decides to vacate the default, Roses should be ordered “to reimburse them for mailing and court costs and attorney’s fees incurred in sending numerous notices and filing for default because o f her failure to respond.” Pls.’ Opp’n to Roses’s Mot. at 9. Roses does not object or even respond to this request. See Roses’s Reply at 14

- 15. “‘In determining whether to exercise its discretion to set aside a default, . . . a district court has inher ent power to impose a reasonable condition on the vacatur in order to avoid undue prejudice to the opposing party.’” Capital Yacht Club v. Vessel AVIVA

, 228 F.R.D. 389, 395 (D.D.C. 2005) (quoting Powerserve Int’ l, Inc. v. Lavi , 239 F.3d 508, 515

- 16 (2d Ci r. 2001) ). And “[t]he condition most commonly imposed is that the defendant reimburse the plaintiff for costs

— typically court costs and attorney’s fees

— incurred because of the default.” Thorpe v. Thorpe

, 364 F.2d 692, 694 (D.C. Cir. 1966) . The Court fin ds the imposition of this condition appropriate here, in view of Roses’s initial failure to respond to the Complaint and the costs and attorney’s fees incurred by the plaintiffs as a result of Roses’s default. Thus, the Court will condition its vacatur of the Clerk’s default upon

1 On August 13, 2012, the sam e day the Court ordered supplemental briefing, the plaintiffs appealed the Court’s June 13, 2012 Memorandum Opinion and Order to the District of Columbia Circuit. The Circuit subsequently granted the parties’ joint motion to hold the case in abeyance pend ing this Court’s resolution of the issues presented in the parties’ supplemental briefs.

2 The Court considered the following submissions in rendering its decision: Defendant Mirta Roses’s Supplemental Brief in Opposition to the Court’s Order on Costs for Default (“Roses’s Suppl. Br.”); the Plaintiffs’ Response to Defendant Mirta Roses Periago’s Supplemental Brief in Opposition to the Court’s Order on Costs and Fees for Default (“Pls.’ Opp’n”); and Defendant Mirta Roses’s Reply in Support of Her Supplement al Brief in Opposition to the Court’s Order on Costs for Default (“Roses’s Reply”).3 Roses’s reimbursement of the plaintiffs’ reasonable fees and costs, subject to the terms set forth in the Order accompanying this Memorandum Opinion.

Garcia , 867 F. Supp. 2d at 140. The Court then addressed Roses’s argument that she was

entitled to immunity under the International Organizations Immunities Act of 1945 (“IOIA”), 22

U.S.C. § 288a(b) (2006). Id. Agreeing with Roses’s position, the Court held that the IOIA

provided “absolute immunity” to Roses for acts performed in her official capacit y as the Director

of the Pan

- American Health Organization (“PAHO”), and that this immunity had been neither

limited by the President of the United States nor waived by the PAHO. See id. at 140

- 43. The

Court thus granted dismissal of t he plaintiffs’ claims against Roses for lack of jurisdiction. Id. at

144. Roses now argues that the Court’s imposition of costs as a condition of vacating the Clerk’s

entry of default is irreconcilable with her immunity under the IOIA

. See Roses’s Suppl . Br. 1

- 2

. In addressing this argument, the Court’s analysis must begin with the relevant lang uage
of the IOIA, which provides that

[i] nternational organizations, their property and their assets, wherever located, and by whomsoever held, shall enjoy the same immunity from suit and every form of judicial process 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 ). As noted, t he Court previously ruled that Roses is entitled to absolute

immunity under the IOIA, see Garcia , 867 F. Supp. 2d at 140

- 43, resulting in her being immune

both “from suit and every f orm of judicial process,” 22 U.S.C. § 288a(b). It follows from this

ruling that the plaintiffs’ atte mpt to serve Roses with process was ineffective , and the Clerk’s

subsequent entry of a default against Roses was void from the outset for lack of jurisdiction. See

Swarna v. Al

- Awadi , 622 F.3d 123, 141 (2d C ir. 2010) (“[T] he que stion of whether the . . .

defendants are p rotected by . . . immunity must be answered before the entry of a default

judgment” because “if the . . . defendants were indeed protected by . . . immunity, the District4 Court would have lack ed jurisdiction to enter a default , much less a default judgment.”

(emphasis added) ) (collecting cases)

. B ecause the Clerk’s entry of default was void from the

outset , the Court erred in attemp ting to place conditions on its “vacatur” of that entry of def ault.

Indeed, without a valid entry of default in the first instance , there is nothing for the Court to

vacate.

The plaintiffs resist this conclusion on several grounds, none of which are convincing

.
First, they argue that an entity must make an appeara nce in court to assert immunity under the

IOIA

, or else risk an entry of default against it. Pls.’ Opp’n at 3. In support of this proposition,

the plaintiffs rely chiefly on Steinberg v. Int’l Criminal Police Org.

, 103 F.R.D. 392 , 397 (D.D.C.

1984), in w hich a former member of this Court sanctioned the defendants for their “ persisten t

failure to participate in th[e] li tigation.” The Steinberg court rejected the defendants’ contention

that they were exempt from sanctions on the basis of their immunity und er the F oreign Sovereign

Immunities Act (“FSIA”), reasoning that “the FSIA does not afford defendants protection against

sanctions for their flouting of the Federal Rules of Civil Procedure. ” Id. at 398. The c ourt added

that “ the proper course for

. . . a party ” seeking to invoke FSIA immunity “ is to respond to the

complaint and appear in court for a prompt judicial determin a tion of the immunity question. I f

the allegedly protected party simply refuses to appear, it runs the risk of a default judgment,

s anctions, or both. ” Id.

Whatever the merits of Steinberg ’s reasoning in the FSIA context, the Court does not find

it persua sive with respect to IOIA immunity . N othing in the IOIA requires an individual to make

an appearance in a lawsuit as a prerequisi te to invoking immunity under the statute

. Of course, if

an individual claiming IOIA immunity chooses to ignore a lawsuit and the court subsequently

determines that she is not entitled to immunity, that individual would be subject to the entry of a5 defaul t against her and the imposition of sanctions. In other words, t he individual would be

taking a gamble by choosing not to appear in the lawsuit. But that only means that making an

appearance is advisable, not mandatory. And where, as her e, a c ourt ha s ruled that the defendant

is entitled to IOIA immunity

, imposing costs on that defendant based on its failure to make a

court appearance would impermissibly erode the entitlement to immunity . This is because IOIA

immunity, like sovereign immunity, “‘ is an immunity from trial and the attendant burdens of

litigation, and not just a defe nse to liability on the merits.’” Foremost

- McKesson, Inc. v. Islamic

Republic of Iran , 905 F.2d 438, 443 (D.C. Cir. 1990) (citation omitted); see also Inversora

Murten, S.A. v . Energoprojekt Holding Co. , No. 03

- mc

- 73, 2004 WL 5582072, at *2 (D.D.C.

Aug. 6, 2004) ( IOIA “immunity is immunity from the litigation process, not its result and

conclusion ,” for “[i] mmunity is cold comfort if, to get it, one would have to spend money an d go

to court

. ”), aff’d , 264 F. App’x 13 (D.C. Cir. 2008). Although the plaintiffs argue that this rule

burdens courts by requiring independent “ investigation [s] as to which immunities might apply”

in cases where the defendant does not make an appearance, Pls.’ Opp’n at 4, this is a familiar

task in the foreign immunity arena, s ee , e.g. , Verlinden B.V. v. Cent. Bank of Nigeria

, 461 U.S.

480, 493 n. 20 (1983) (“ [E]ven if the foreign state does not enter an appearance to assert an

immunity defense, a District Court still must determine that immunity is unavailable under the

[FSIA].” ) ; Valore v. Islamic Republic of Iran , 700 F. Supp. 2d 52, 67

- 68 (D.D.C. 2010)

(considering sua sponte the applicability of FSIA immunity where the defendant failed to enter

an appe arance). 3 In any event, the Court was not required to conduct such an independent

inquiry in this case because Roses did eventually make an appearance and assert IOIA immunity

as a defense to the plaintiffs’ claims.

3 The Court notes that the above

- cited authority contradicts the plaintiffs’ argument that a foreign government must appear in a lawsuit to assert FSIA immunity. See Pl s.’ Opp’ n at 7

.6 The plaintiffs further contend that t he Court has inherent power to impose conditions on

its vacatur of the Clerk’ s entry of default against Roses, regardless of her entitlement to

immunity under the IOIA. Pls.’ Opp’n at 9. However, a s explained above

, the Clerk’ s entry of

default in this c ase was void from the outset for lack of jurisdiction , s o the Court cannot vacate

the entry of default (there being no valid default to vacate) , much less can it place conditions on

the vacatur. 4

For the foregoing reasons, the Court’s June 13, 2012 Memo randum Opini on and Order is

vacated in part, and the Clerk’s entry of default is stricken from the docket.

SO ORDERED this 29th day of January, 2013. 5

REGGIE B. WALTON United States District Judge

4 Roses also argues that IOIA immunity trumps the Court’s inherent power to impose costs or sanctions on a party deemed immune under the statute. See Roses’s Suppl. Brief at 2

- 4. But t he plaintiffs make clear that they are not asking the Court to impose sanctions on Roses; they only want the Court to require her to reimburse the plaintiffs for their fees and costs as a condition of its vacatur of the Clerk’s entry of default. Pls.’ Opp’n at 9. In view of this clarification and the Court ’s conclusion that the Clerk’s entry of default was void from the outset, the Court need not address Roses’ s argument regarding the Court’s general authority to impose costs and sanctions on an individual entitled to IOIA immunity.

5 The Court will contem poraneously issue an Order consistent with this Memorandum Opinion.