No. _________
================================================================

In The

Supreme Court of the United States
-----------------------------------------------------------------MARIE LAVENTURE, et al.,
Petitioners,
v.
UNITED NATIONS, et al.,
Respondents.
-----------------------------------------------------------------On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Second Circuit
-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI
-----------------------------------------------------------------JAMES F. HAGGERTY
Counsel of Record
LAW OFFICE OF JAMES F. HAGGERTY
45 Broadway, Suite 3140
New York, NY 10006
(212) 470-0800
jhaggerty@haggertylegal.com
PAUL M. TARR
LESTER SCHWAB KATZ & DWYER LLP
100 Wall Street, 27th Floor
New York, NY 10005
(212) 964-6611
ptarr@lskdnylaw.com
MARK A. GOTTLIEB
NORTHEASTERN UNIVERSITY
SCHOOL OF LAW
360 Huntington Avenue
Boston, MA 02115
(617) 373-2026
mark@phaionline.org
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM

 i
QUESTIONS PRESENTED
An agreement to be liable binds a party to an
enforceable obligation in law and justice. This is true
under the laws of the United States and it has been
affirmed repeatedly in official documents of the United
Nations (“UN”). In conflict with this universal and widely
understood definition, the Second Circuit ruled that
an express assumption of liability by the SecretaryGeneral of the UN, which was then legislatively
adopted by the UN General Assembly, was limited to internal UN claims processes that are either nonexistent
or not binding.
The questions presented are:
1. Whether the term “liability” can be used in an
unenforceable, non-obligatory context, making it plausible that an entity would use the term in a legislative
enactment to refer to claims processes that have never
existed or are otherwise not binding on the party
agreeing to be liable.
2. Whether an express agreement to be liable
without limiting such liability to a binding forum subjects a party—which heretofore had absolute immunity—to the jurisdiction of any court with otherwise
competent jurisdiction to hear the claim.
3. Whether, at the pleading stage of a tort action,
a plaintiff has met its burden to survive dismissal under Federal Rule of Civil Procedure 12(b)(1) and
12(h)(3) where an affirmative, plausible case has been
made for jurisdiction and there is no other plausible
explanation for the use of a term in a legislative enactment that has a well-known meaning at common law
and under the law of the United States.

 ii
PARTIES TO THE PROCEEDING
Petitioners, including Marie Laventure, Maggie
Laventure, Cherylusse Laventure, and Sane Laventure, as well as more than 3,000 additional individuals
listed in the complaint, are American and Haitian citizens, all of whom are plaintiffs in this case and were
damaged as a result of the tortious conduct of the
United Nations.
Respondents in this action, who did not enter an
appearance in either the United States District Court
or before the United States Court of Appeals, are the
UN, the UN Stabilization Mission In Haiti (“MINUSTAH”), Ban Ki-Moon, former Secretary-General
of the UN, Edmond Mulet, former Under SecretaryGeneral for MINUSTAH, Chandra Srivastava, former
Chief Engineer for MINUSTAH, Paul Aghadjanian,
former Chief of Mission Support for MINUSTAH,
Pedro Medrano Rojas, a former Assistant UN
Secretary-General, and Miguel de Serpa Soares, Under
Secretary for Legal Affairs of the UN (hereinafter referred to, collectively, as the “United Nations,” “UN,” or
“Organization”).

 iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................................

i

PARTIES TO THE PROCEEDING ......................

ii

TABLE OF CONTENTS ......................................

iii

TABLE OF AUTHORITIES .................................

v

PETITION FOR A WRIT OF CERTIORARI .......

1

OPINIONS BELOW.............................................

1

JURISDICTION ...................................................

1

RELEVANT STATUTORY PROVISIONS ...........

1

INTRODUCTION ................................................

2

STATEMENT OF THE CASE..............................

7

REASONS FOR GRANTING THE WRIT............ 10
I.

Given the meaning of the term “liability,”
the UN would never have used the term to
refer to claims processes that do not exist
or are nonbinding ...................................... 12
a. The UN itself has agreed that liability
entails a binding obligation in law and
justice .................................................. 16

II.

An assumption of liability is a common
manner through which an entity with absolute immunity waives such immunity,
subject to the limitations of the waiver itself ............................................................. 18
a. The Second Circuit previously held
that liability and immunity are mutually exclusive jural opposites .............. 25

 iv
TABLE OF CONTENTS—Continued
Page
III.

A binding forum for the adjudication of
tort claims against the UN does not exist
and has never existed ................................ 26

IV.

The Secretary-General’s reports do not
state that the UN’s assumption of liability
was restricted to its internal claims processes, nor that the UN has retained immunity where liability is assumed ............ 29

V.

A plaintiff has met its burden to survive
dismissal under FRCP 12(h)(3) where an
affirmative, plausible case has been made
for jurisdiction and there is no other plausible explanation for the use of a term in a
legislative enactment that has a wellknown meaning at common law and the
law of the United States ............................ 34

CONCLUSION..................................................... 37
APPENDIX
United States Court of Appeals for the Second
Circuit, Summary Order, December 28, 2018..... App. 1
United States District Court for the Eastern
District of New York, Memorandum & Order,
August 24, 2017................................................ App. 9

 v
TABLE OF AUTHORITIES
Page
CASES
APWU v. Potter, 343 F.3d 619 (2d Cir. 2003) ..............36
Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............. 6, 35, 36
Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007) ............................................................. 6, 35, 36
Bormes v. United States, 759 F.3d 793 (7th Cir.
2014) .................................................................. 22, 23
Brown v. State of New York, 89 N.Y.2d 172 (1996) ....... 23
CCF, Inc. v. First Nat’l Bank and Trust Co., 69
F.3d 468 (10th Cir. 1995) .........................................13
Chew Heong v. United States, 112 U.S. 536 (1884) ...... 28
De La Rama S.S. Co. v. United States, 344 U.S.
386 (1953) ................................................................12
Dennick v. Railroad Co., 103 U.S. 11 (1881) ..............11
FAA v. Cooper, 566 U.S. 284 (2012) .................. 4, 19, 20
Federal Deposit Insurance Corporation v. Meyer,
510 U.S. 471 (1994) .................................................19
Fire Assoc. of Philadelphia v. Allis Chalmers
Mfg. Co., 129 F. Supp. 335 (N.D. Iowa 1955) ..........13
Griffin v. Illinois, 351 U.S. 12 (1956) ............................6
Helmerich & Payne Int’l Drilling Co. v. Bolivarian Republic of Venez., 415 U.S. App. D.C. 21,
784 F.3d 804 (D.C. Cir. 2015) ..................................36
Irwin v. Department of Veterans Affairs, 498 U.S.
89 (1990) ..................................................................19

 vi
TABLE OF AUTHORITIES—Continued
Page
Jackson v. State of New York, 261 N.Y. 134, 184
N.E. 735 (1933) .................................................. 19, 25
Jam v. Int’l Fin. Corp., ___ U.S. ___, 139 S. Ct.
759 (2019) ................................................................26
Jesner, et.al. v. Arab Bank, 584 U. S. __, 138 S. Ct.
1386 (2018) ..............................................................14
Jo v. JPMC Specialty Mortg., LLC, 248 F. Supp.
3d 417 (W.D.N.Y. 2017)............................................35
Kirsch v. Barnes, 263 F.2d 692 (9th Cir. 1959) ...........13
Krenger v. Pennsylvania R. Co., 174 F.2d 556 (2d
Cir. 1949) .................................................................25
Laventure, et. al. v. United Nations (2d Cir. C.A..
Case No. 17-2908) (December 29, 2017) ............. 8, 27
Lerner v. Fleet Bank, N.A., 318 F.3d 113 (2d Cir.
2003) ........................................................................35
Lorillard, Div. of Loew’s Theatres, Inc. v. Pons,
434 U.S. 575 (1978) ...................................................3
Pennsylvania v. Union Gas Co., 491 U.S. 1
(1989) ................................................................... 5, 22
Rasmus v. A. O. Smith Corp., 158 F. Supp. 70
(N.D. Iowa 1958) ......................................................13
Richlin Security Service Co. v. Chertoff, 553 U.S.
571 (2008) ................................................................20
Seminole Tribe v. Florida, 517 U.S. 44 (1996) ........ 5, 22
Shipping Fin. Servs. Corp v. Drakos, 140 F.3d
129 (2d Cir. 1998) ....................................................36

 vii
TABLE OF AUTHORITIES—Continued
Page
Sipple v. State, 96 N.Y. 284 (1885) .............................23
Tarros S.p.A. v. United States, No. 13 CIV. 1932
(JPO), 2013 WL 6084243 (S.D.N.Y. Nov. 19,
2013) ........................................................................35
United States v. King, 395 U.S. 1 (1969) .............. 19, 22
United States v. Mitchell, 445 U.S. 535 (1980) ...........19
United States v. Mitchell, 463 U.S. 206 (1983) ...........19
Univ. of W. Va. Bd. of Trs. ex rel. W. Va. Univ. v.
Graf, 205 W. Va. 118 (1998) .....................................24
Vogel v. Trans World Airlines, 346 F. Supp. 805
(E.D. Mo. 1970) ........................................................13
Wells Fargo Bank, N.A. v. Ullah, No. 13 CIV.
0485 (JPO), 2014 WL 470883 (S.D.N.Y. Feb. 6,
2014) ........................................................................36
CONSTITUTIONAL PROVISIONS
W. Va. Const. Art. VI, § 35 ...........................................23
STATUTES
12 V.S.A. § 5601...........................................................24
14 M.R.S. § 8104-A(1) .................................................24
28 U.S.C. § 1254(1) ........................................................1
42 Pa.C.S. § 8522(b) ....................................................24
42 U.S.C. § 9620(a)(1) .................................................21

 viii
TABLE OF AUTHORITIES—Continued
Page
51 Okl. St. § 153 ..........................................................24
Age Discrimination in Employment Act, 29
U.S.C.S. § 633a ........................................................21
Alaska Stat. § 09.50.250 .............................................24
ALM GL ch. 258, § 2 ...................................................24
C.R.S. § 24-10-108, et seq. ...........................................24
Cal. Gov’t Code, § 815 .................................................23
Clean Air Act, 42 U.S.C.S. § 7418 ...............................21
Clear Water Act, 33 U.S.C.S. § 1323 ...........................21
Employment Opportunity Act,
42 U.S.C.S. § 2000e-16.............................................21
Fair Credit Reporting Act ...........................................22
Federal Tort Claims Act
28 U.S.C. § 2674................................................. 20, 21
28 U.S.C. § 2680.......................................................20
28 U.S.C. § 1346(b) ............................................ 20, 21
Fla. Stat. § 768.28 .......................................................24
Foreign Sovereign Immunities Act,
28 U.S.C. § 1330, 1602, et seq. .................................18
Idaho Code § 6-903(1) .................................................24
International Organizations Immunities Act,
22 U.S.C. § 6288, et seq. ...........................................18
K.S.A. § 75-6103..........................................................24
MCA, 2-9-102 ..............................................................24

 ix
TABLE OF AUTHORITIES—Continued
Page
Md. Code. Ann., State Gov’t § 12-101, et. seq. ............24
Minn. Stat. § 3.736 .....................................................24
N.D. Cent. Code, § 32-12.2-02 .....................................24
N.J. Stat. § 59:2-2(a) ...................................................24
R.I. Gen. Laws § 9-31-1 ..............................................24
R.R.S. Neb. § 81-8,215 ................................................24
Rev. Code Wash. § 4.92.090 ........................................24
S.C. Code Ann. § 15-78-40 ..........................................24
Va. Code Ann. § 8.01-195.3 .........................................24
W. Va. Code § 29-12A-4 ...............................................24
RULES AND REGULATIONS
Fed. R. Civ. Proc. 12(b)(1) ........................................ 5, 35
Fed. R. Civ. Proc. 12(b)(6) ............................................35
Fed. R. Civ. Proc. 12(h)(3) ............................. 5, 9, 35, 37
OTHER AUTHORITIES
A/CN.4/340 & Corr.1 and Add.1 & Corr.1, Third
report on jurisdictional immunities of States and
their property, by Mr. Sompong Sucharitkul,
Special Rapporteur, Extract from the Yearbook of the International Law Commission:
1981, vol. II(1) .........................................................26

 x
TABLE OF AUTHORITIES—Continued
Page
A/CN.4/402 and Corr.1, Corr.2 (S only) to 4, Second report on international liability for injurious consequences arising out of acts not
prohibited by international law, by Mr. Julio
Barboza, Special Rapporteur, Extract from
the Yearbook of the International Law Commission: 1986, vol. II(1) ..................................... 16, 17
Article II, § 2 of the Convention of Privileges and
Immunities of the United Nations, 21 U.S.T.
1418 ....................................................................... 3, 8
Black’s Law Dictionary (10th ed. 2014), Liability ..... 2, 13
2 Bouvier L. Dict. 1950, Liability ...............................13
Charter of the United Nations, art. 105, § 1 ................2
Convention of Privileges and Immunities of the
United Nations, 21 U.S.T. 1418 ..................... 2, 3, 8, 19
Gregory Sisk, Litigating With The Federal Government (West Academic Publishing, 2016) ...........21
John C.P. Goldberg, Benjamin C. Zipursky, The
Oxford Introductions to U.S. Law: Torts (Oxford
University Press, 2010) ...........................................15
John Salmond, Jurisprudence (Stevens and
Haynes 1907) ..........................................................14
“Responsibility and liability in the common law”,
in Legal Aspects of Transfrontier Pollution
(Paris, OECD, 1977) ................................................17
Restatement (Third) of the Foreign Relations
Law of the United States § 456(3) (1986) .................3
UN Report A/51/389 (September 20, 1996) ......... passim

 xi
TABLE OF AUTHORITIES—Continued
Page
UN Report A/51/903 (May 21, 1997) .................. passim
UN Report A/52/410 ...................................................34
UN Resolution A/52/247 ................................... 9, 27, 33

 1
PETITION FOR A WRIT OF CERTIORARI
Petitioners Marie Laventure, et al., respectfully
petition for a writ of certiorari to review the judgment
of the United States Court of Appeals for the Second
Circuit, No. 17-2908.
------------------------------------------------------------------

OPINIONS BELOW
The Summary Order of the United States Court of
Appeals for the Second Circuit (App. 1) can be found at
746 F. App’x 80 (2d Cir. 2018). The opinion of the district court (App. 9) is published at 279 F. Supp. 3d 394
(E.D.N.Y. 2017).
------------------------------------------------------------------

JURISDICTION
The summary order of the court of appeals was issued on December 28, 2018. On March 18, 2019, Justice Ginsburg extended the time within which to file a
petition for a writ of certiorari to and including May
13, 2019. See No. 19A937. This Court has jurisdiction
under 28 U.S.C. § 1254(1).
------------------------------------------------------------------

RELEVANT STATUTORY PROVISIONS
The relevant treaty provisions are the Convention
of Privileges and Immunities of the United Nations

 2
(“CPIUN”), 21 U.S.T. 1418, and the Charter of the
United Nations, art. 105, § 1.
------------------------------------------------------------------

INTRODUCTION
Liability is defined as an enforceable obligation in
law and justice. There is no other legal definition.1 Liability can be absolved through immunity, it can be
limited temporally, financially or jurisdictionally, but it
cannot be relegated to a forum that doesn’t exist and
still be called liability. Without some binding mechanism for enforcement, the term “liability” is meaningless.
Given this universal and well-understood definition of liability, a party to a contract or legislative enactment would not plausibly use the term to refer to a
forum that doesn’t exist, or one that is voluntary and
nonbinding on the entity agreeing to be liable. Yet in
this case, the Second Circuit ruled that the UN’s express agreement to be liable, made in reports of
the Secretary-General that were then legislatively
adopted by the UN General Assembly, were limited to
internal UN claims processes that are either nonexistent or not binding in any way—despite the fact that
the Secretary-General doesn’t say this anywhere in the
documents in question. In other words, the Second
1

See, e.g., Black’s Law Dictionary (10th ed. 2014), Liability.
In finance and accounting, of course, a liability can also be a financial or pecuniary obligation, id., but that, too, is binding and
legally enforceable.

 3
Circuit ruled that, by implication, the SecretaryGeneral and UN General Assembly were using the
word “liability” to refer to unenforceable obligations in
nonexistent forums.
The ruling in this case, therefore, directly conflicts
with the understanding of liability at common law and
under the law of the United States. The ruling is also
at odds with this Court’s long-standing precedent holding that where words are employed that have a wellknown meaning at common law or in the law of this
country, “they are presumed to have been used in that
sense.” Lorillard, Div. of Loew’s Theatres, Inc. v. Pons,
434 U.S. 575, 576 (1978). And critically, the Second Circuit’s ruling conflicts with official documents of the UN
itself, which resoundingly affirm the compulsory nature of liability.
At issue in this case is whether the UN, MINUSTAH and the individual Defendants have waived
immunity from suit in U.S. courts for the tortious acts
of UN peacekeepers in Haiti. In response to the filing
of the case, the UN wrote a letter to the U.S. Department of State asserting immunity from suit under
Article II, § 2 of the Convention of Privileges and Immunities of the United Nations (“CPIUN”), 21 U.S.T.
1418. Petitioners believe this assertion of immunity
has no legal effect, since the UN had previously expressly waived immunity in these types of cases and
therefore could not reassert it. See, e.g., Restatement
(Third) of the Foreign Relations Law of the United
States § 456(3) (1986) (“Under the law of the United
States, a waiver of immunity may not be withdrawn,

 4
except by consent of all parties to whom (or for whose
benefit or protection) the waiver was made.”).
More specifically, in two reports of the SecretaryGeneral, issued in 1996 and 1997, the UN expressly
assumed liability for private law damages caused by
UN peacekeeping forces in circumstances such as
those present in this case. These reports were then
adopted legislatively by the full UN General Assembly
and are thus binding on the Organization as law. It is
simply not plausible to suggest that this legislative enactment was intended to bind the UN to claims procedures that do not exist or are binding on no one. The
only plausible conclusion is that the Secretary-General
intended this assumption of liability to be an express
waiver of immunity in the limited circumstances laid
out in his reports. Any other reading of the SecretaryGeneral’s words would create a legal impossibility of
the sort that this Court has long refused to countenance.
Moreover, waiver of immunity through an assumption of liability is quite common, including in U.S.
state and federal law. When an entity with absolute
immunity subsequently reassumes its liability, it is
without question an express waiver of its former immunity, subject to limitations contained in the waiver
itself, be they temporal, financial or jurisdictional.
Long-standing precedent of this Court in other areas
of immunity holds that “magic words” are not needed
to show an express waiver by a party with absolute immunity, but rather only an “unequivocal expression of
. . . intent,” FAA v. Cooper, 566 U.S. 284, 291 (2012).

 5
Further, this Court has held that such an unequivocal
expression of intent exists where “we cannot imagine
any other plausible explanation” for terms used. Pennsylvania v. Union Gas Co., 491 U.S. 1, 10 (1989).2 Therefore, absent any other plausible explanation for the
words used by the Secretary-General—words which
were then made binding on the UN through legislative
adoption by the General Assembly—the only conclusion that can be drawn is that the Secretary-General
intended an express waiver of UN immunity for damages caused by UN peacekeepers in the circumstances
outlined in the reports.
In the face of this affirmative, plausible showing of
an intent to waive its immunity, Petitioners also ask
this Court to consider whether, in upholding the dismissal of Petitioners’ claims at the pleading stage—
without any plausible explanation as to why the UN
would use the term liability to refer to claims processes
that do not exist or are nonbinding—the Second Circuit has impermissibly raised the bar for surviving dismissal under Federal Rule of Civil Procedure (“FRCP”)
12(b)(1) and 12(h)(3) to something akin to a “beyond all
reasonable doubt” standard. In other words, by the reasoning of the Second Circuit, if any scintilla of doubt as
to the UN’s intent can be found, no matter how implausible, the prior express waiver didn’t happen—even if
an affirmative and plausible case for advance waiver
has been demonstrated by a preponderance of the evidence, and even if no other plausible explanation has
2

Abrogated on other grounds in Seminole Tribe v. Florida,
517 U.S. 44 (1996).

 6
been offered to rebut this presumption. Such a ruling
is in direct conflict with pleading standards for surviving a motion to dismiss, including this Court’s plausibility standard, laid out in Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662
(2009). In that regard, this Court should consider
whether the impact of the Second Circuit’s decision is
to “bolt the door to equal justice,” Griffin v. Illinois, 351
U.S. 12, 16 (1956).
This is an important case—not just given the human cost of the UN’s tortious actions in Haiti, and not
just to resolve conflicts between the Second Circuit and
the law of other Circuits and this Court related to the
meaning of such basic legal principles as liability, express waiver of absolute immunity, and the burden of
proof required to survive dismissal at the pleading
stage of civil litigation. Throughout this case, Petitioners believe there has been a reflexive reaction on the
part of governments, the courts, and others to prejudge—to decide, without proper consideration, that
the UN is immune, despite the Organization’s own express agreement to be liable and acceptance of responsibility for the damages it has wrought. As a result,
there has never been a hearing in open court to consider the issues at the heart of this case, and arguments by Petitioners as to the nonexistence of UN
standing claims commissions—or any other binding forum for the adjudication of claims—have been ignored
by both the district court and the Second Circuit. Put
simply, it has never been explained to the Petitioners

 7
by any court how the UN can assume a liability that is
enforceable nowhere.
Further, it must be understood that this case is not
an attack on general concept of UN immunity. In fact,
the express wavier by the UN at issue in this case is
quite limited. Rather, Petitioners simply seek clarification from this Court regarding these critical matters,
so that lower courts do not reflectively seek to uphold
UN immunity above all else, even in the face of incontrovertible evidence of express waiver. Immunity is not
an altar upon which all other principles of law should
be sacrificed.
This Court should clarify the definition of liability,
the scope of the UN’s absolute immunity, and what the
UN means when, unequivocally and without qualification, it assumes liability for the tortious acts of its
peacekeeping forces.
------------------------------------------------------------------

STATEMENT OF THE CASE
There is little dispute over the facts of this case. In
2010, the United Nations spread cholera throughout
Haiti by taking 1,075 peacekeepers from Nepal (where
cholera was rampant) and deploying them to Haiti, a
nation that had not seen a case of cholera in more than
100 years. App. 11. The UN never tested its Nepalese
peacekeepers for the presence of the disease and constructed inadequate sewage facilities on a tributary of
a major river used for bathing, cooking and drinking
water. Cholera spread quickly. It is estimated that

 8
10,000 people died and approximately 1 million were
sickened as a result of the UN’s actions. Id. The UN
has admitted responsibility and apologized for its introduction of cholera into Haiti (App. 12), but it turned
away, without consideration, approximately 5,000
claims presented to the Organization, and has otherwise refused to accept liability for its actions.3
On March 11, 2014, Petitioners sued the UN and
the other Defendants for damages resulting from the
UN’s tortious acts. App. 13. Through a letter to the
United States government (App. 7, 14), the Defendants
asserted immunity from suit under Article II, § 2 of the
Convention of Privileges and Immunities of the United
Nations (“CPIUN”), 21 U.S.T. 1418, which specifies
that the UN “shall enjoy immunity from every form of
legal process except insofar as in any particular case it
has expressly waived its immunity.” The CPIUN’s authority, in turn, flows from the Charter of the United
Nations, which provides that the UN “shall enjoy in the
territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes.” U.N. Charter art. 105, § 1.
Petitioners assert that the UN had expressly
waived its immunity from suit in U.S. courts and
therefore could not reassert it. Specifically, in two reports issued in 1996 and 1997 (hereinafter referred to
as reports “A/51/389” and “A/51/903”), the United Nations, through statements of the Secretary-General,
3

See Laventure, et. al. v. United Nations (2d Cir. C.A. Case
No. 17-2908), Dkt. No. 41, pp. 23-24 (December 29, 2017).

 9
expressly assumed liability for private law damages
caused by UN forces in circumstances such as those
present in this case.4 These reports were then adopted
legislatively by the full UN General Assembly, and
therefore became binding on the Organization.5 Petitioners requested that, if the district court could not
find an express waiver of immunity, at the very least it
should allow limited jurisdictional discovery to determine whether the UN did, in fact, intend a meaning
when using the term liability so contrary to the commonly understood definition of the term. App. 5-6.
The U.S. Government, for its part, filed a Statement of Interest (SOI) in the district court, and an amicus brief in the Second Circuit, supporting the
contention of the UN that, despite the statements of
the Secretary-General in his reports, the UN remained
immune. App. 13-14.
The Second Circuit upheld the district court’s dismissal under FRCP 12(h)(3) (“if the court determines
at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action.”). In a summary order dated December 28, 2018, the Second Circuit ruled
that “[t]he reports describe procedures for redress for
4

The two reports in questions are:
(1) UN Report A/51/389 (September 20, 1996), found
at https://undocs.org/A/51/389; and
(2) UN Report A/51/903 (May 21, 1997), found at:
https://undocs.org/A/51/903
(both last accessed May 6, 2019).
5
UN Resolution A/52/247, found at https://undocs.org/A/res/
52/247 (last accessed May 6, 2019).

 10
third-party claims through standing claims commissions or internal UN procedures. . . . It is clear that the
reports’ descriptions of the UN’s liability refer only to
their responsibility in these non-judicial forms and do
not constitute an express waiver of immunity from legal processes in domestic courts.” App. 6. While the
Second Circuit stated that these reports provide that
“such responsibility is discharged ‘by means of a standing claims commission’ addressing claims ‘which for
reasons of immunity of the Organization and its members could not have been submitted to local courts’,” id.,
the court did not address the fact that such standing
claims commissions do not exist and have never existed in the history of the UN. Nor did the Second Circuit address Petitioners’ argument that nowhere do
these reports directly state that the UN’s acceptance
of liability is restricted to these nonexistent forums. Finally, the Second Circuit chose not to address how it
could plausibly be argued that the UN’s assumption of
liability was somehow limited to claims processes that
are either nonexistent or not binding on anyone.
------------------------------------------------------------------

REASONS FOR GRANTING THE WRIT
Is liability an agreement that binds a party to an
enforceable obligation in law and justice, or does it
mean something else, depending upon the context (or,
perhaps, depending upon the party)? Can a binding enactment of a legislative body agree to assume liability,
but restrict this liability to forums that do not exist,
have never existed, or are completely voluntary or

 11
nonbinding? Does any explanation, implausible
though it may seem, shield a party with absolute immunity from a determination that it has expressly
waived that immunity, even in the face of a clear assumption of liability?
The answers to these questions seem obvious. Liability creates an enforceable obligation, or else it is
not liability. Without some mechanism for enforceability (even if limited by time, jurisdiction, or other restriction), the term liability is meaningless. Moreover,
if an entity with absolute immunity subsequently
agrees to be liable without limiting such acceptance to
a binding forum, that entity is liable in any forum
which otherwise would have jurisdiction, since this
Court has long held that “wherever, by either the common law or the statute law . . . a right of action has
become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in
any court which has jurisdiction of such matters. . . .”
Dennick v. Railroad Co., 103 U.S. 11, 18 (1881). Further, the burden of proof to survive dismissal at the
pleading stage only requires an affirmative, plausible
showing by a preponderance of the evidence of an intent to waive—and where there is no other plausible
explanation, this Court has found express waiver is the
only conclusion to be drawn.
Given all this, the decision of the Second Circuit in
this case conflicts not just with other Circuits and the
law of this Court, but with centuries of understanding
of some of the most elemental principles in law. Neither the district court nor the Second Circuit

 12
addressed these matters. With the increasing role that
international organizations such as the UN play in the
world, this Court should use this case to resolve these
conflicts.
I.

Given the meaning of the term “liability,”
the UN would never have used the term to
refer to claims processes that do not exist or
are nonbinding.

On several occasions over the course of the past
century, this Court has characterized a central flaw in
the Second Circuit’s decision:
. . . to acknowledge the liability but to deny
the full extent of its enforceability recalls
what was said in The Western Maid, 257 U.S.
419, 433 [1922]: “Legal obligations that exist
but cannot be enforced are ghosts that are
seen in the law but that are elusive to the
grasp.”
De La Rama S.S. Co. v. United States, 344 U.S. 386, 390
(1953).
The UN’s legal obligations to those damaged
through the tortious acts of UN peacekeepers are not
mere elusive “ghosts.” The UN repeatedly and unambiguously assumed liability for damages caused by its
peacekeeping operations. These words accepting liability impose upon the UN an enforceable duty in a binding forum. In other words, liability imposes obligations.
This is not merely a matter of acknowledging fault, or
even accepting responsibility. It is more. Under U.S.

 13
law and the UN’s specific pronouncements, liability imposes upon the responsible party a legal obligation to
be bound by an enforceable duty.
Black’s Law Dictionary defines Liability in this
manner:
The quality, state or condition of being legally
obligated or accountable; legal responsibility
to another or to society, enforceable by civil
remedy or criminal punishment.6
The Second Circuit’s misapplication of the term in
the case before this Court has placed it in conflict with
other Circuits. The Ninth Circuit, for example, has
held (citing California law), that liability is “the condition of one who is subject to a charge or duty which
may be judicially enforced.” Kirsch v. Barnes, 263 F.2d
692 (9th Cir. 1959). Other U.S. federal and state courts
have held repeatedly that liability is “the state of being
bound or obliged in law or justice.” Rasmus v. A. O.
Smith Corp., 158 F. Supp. 70 (N.D. Iowa 1958); CCF,
Inc. v. First Nat’l Bank and Trust Co., 69 F.3d 468, 473
(10th Cir. 1995); Vogel v. Trans World Airlines, 346
F. Supp. 805 (E.D. Mo. 1970); Fire Assoc. of Philadelphia v. Allis Chalmers Mfg. Co., 129 F. Supp. 335 (N.D.
Iowa 1955).
In fact, the compulsory nature of liability is so well
established as an underlying principle of the law that,
in most cases, no explanation by a court is needed
6

Black’s Law Dictionary (10th ed. 2014), Liability; see also 2
Bouvier L. Dict. 1950, Liability.

 14
when using the term. Consider this Court’s recent decision in Jesner, et.al. v. Arab Bank, 584 U.S. __, 138
S. Ct. 1386 (2018). In Jesner there are five separate
opinions, with the words “liable” or “liability” used approximately 200 times. Not once is the word liability
used to indicate anything other than a binding, enforceable obligation “imposed” upon a party. Thus, in
Justice Kennedy’s plurality opinion, “ . . . it is proper
now to turn first to the question whether there is
an international-law norm imposing liability on corporations. . . .” Id., at 1399. In the dissent, Justice
Sotomayor wrote, “Although international law determines what substantive conduct violates the law of nations, it leaves the specific rules of how to enforce
international-law norms and remedy their violation to
states, which may act to impose liability collectively
through treaties or independently via their domestic
legal systems.” Id., at 1420. In most cases—in Jesner
or any other decision where liability is considered—
courts assume that liability is something that can be
imposed upon a party in a binding, enforceable forum,
since that is the only definition of the term that exists.
Legal scholarship reinforces this concept. Consider the seminal work of John Salmond, Jurisprudence (Stevens and Haynes 1907), at § 125:
“Liability . . . is the bond of necessity that exists between the wrongdoer and the remedy of
the wrong. This vinculum juris is not one of
mere duty or obligation; it pertains not to the
sphere of ought but to that of must . . . [a]
man’s liability consists in those things which

 15
he must do or suffer, because he has already
failed in doing what he ought.” (emphasis in
original).
Or, more recently: “A longstanding maxim of English common law reads ubi jus ibi remedium: where
there is a right, there shall be a remedy. If the law has
proscribed conduct as wrongful toward others—if they
have a right not to be so treated—and if another is injured by virtue of such conduct, the law will grant the
victim the right to respond to the injurious wrongdoing.” John C.P. Goldberg, Benjamin C. Zipursky, The
Oxford Introductions to U.S. Law: Torts (Oxford University Press, 2010).
Therefore, in order for a party to accept liability,
there must be a binding forum to enforce the obligation
in law and justice. It can be constrained by time, substance, jurisdiction or remedies, to be sure, but no entity would, in a legal sense, use the term liability to
refer to forums that do not exist or are wholly nonbinding. Yet the Second Circuit’s ruling would expand the
definition of liability to include forums that are nonbinding, non-obligatory or nonexistent. This is error. It
has ramifications not just in circumstances where an
entity with absolute immunity attempts to restore its
immunity, but in any area of the law that relies on the
well-established and universally acknowledged definition of liability.

 16
a. The UN itself has agreed that liability
entails a binding obligation in law and
justice.
An argument cannot be made that the UN has
some other definition of the term liability, different
from that under the common law and the laws of the
United States, and therefore, perhaps, did not intend
its assumption of liability to be a binding obligation in
an enforceable forum. In fact, in its official reports, the
UN has promulgated a definition of liability that is entirely consistent with that under U.S. law. In a 1986
Report addressing “[i]nternational liability for injurious consequences arising out of acts not prohibited by
international law,” for example, a UN Special Rapporteur set forth a clear definition of liability. This definition specifically differentiated liability from mere
“responsibility” and confirmed that specific and enforceable legal obligations attach when the UN assumes liability. According to this UN document, while
“responsibility” refers “to the consequences of unlawful
acts,” liability refers “to the very obligation imposed by
the primary norm.”7 The UN report further describes
this understanding of the term liability by reference to
the work of a “writer versed in common law, L. F. E.
Goldie, examining the differences between the English
7

A/CN.4/402 and Corr.1, Corr.2 (S only) to 4, Second report
on international liability for injurious consequences arising out of
acts not prohibited by international law, by Mr. Julio Barboza,
Special Rapporteur, Extract from the Yearbook of the International Law Commission: 1986, vol. II(1), at 145. Available at: http://
legal.un.org/docs/?path=../ilc/documentation/english/a_cn4_402.
pdf&lang=EFS (last accessed May 5, 2019).

 17
terms ‘responsibility’ and ‘liability’. . . .”8 The Special
Rapporteur noted that while “responsibility is taken to
indicate a duty . . . liability connotes exposure to legal
redress once responsibility and injury arising from a
failure to fulfill that legal responsibility have been established.”9
The report further stated:
failure to observe one’s responsibilities, or . . .
being responsible in a causal sense for harm,
carry the legal consequences (i.e. both the
sanctioning and compensatory function) of incurring liability.10
The UN report underscores that, without enforcement, there can be no liability. Given the universal acceptance of this definition of liability—including by
the UN itself—it is simply implausible that the Secretary-General did not understand the submission to
binding legal authority inherent in the UN’s express
assumption of liability. It is equally implausible that
the General Assembly did not understand the logical
consequence of its adoption of the resolution that
bound the UN to the meaning of the SecretaryGeneral’s words. In its ruling, the Second Circuit declined to address any of these arguments. This Court
should resolve these conflicts, given the important
principles at stake.
8

Id., at 146.
Id.
10
Id., citing “Responsibility and liability in the common law”, in
Legal Aspects of Transfrontier Pollution (Paris, OECD, 1977), p. 344.
9

 18
II.

An assumption of liability is a common manner through which an entity with absolute
immunity waives such immunity, subject to
the limitations of the waiver itself.

When entities with absolute immunity undertake
to expressly waive such immunity, they commonly do
so by agreeing to assume liability. Such waivers are not
implicit or by implication; they are express. Put another way: if immunity is a blanket that shields a party
from legal process, then to subsequently agree to assume liability casts off this jurisdictional immunity,
subject to the limitations of the waiver itself.
While this Court has never directly addressed this
question, both U.S. federal and state governments have
waived their absolute immunity by their assumption
of liability in a manner analogous to the UN’s assumption of liability in this case.11 A quote from New York’s
highest court deftly describes what happens when an
immune entity subsequently assumes liability:
In the assumption of liability and the creation
of a remedy to enforce a liability, heretofore
absent by reason of the sovereignty of the tort
feasor, the sovereign has not generously dispensed charity . . . [i]t declares that no longer
will the [entity] use the mantle of sovereignty
11

Of course, an assumption of liability is not the only way to
effectuate an express waiver of immunity. Both the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1330, 1602, et seq. and
the International Organizations Immunities Act (IOIA), 22
U.S.C. § 6288, et seq., waive immunity by subjecting heretofore
immune entities to the jurisdiction of U.S. courts.

 19
to protect itself from such consequences as follow negligent acts . . . [i]t admits that in such
negligence cases the sovereign . . . promises
that in future it will voluntarily discharge its
moral obligations in the same manner as the
citizen is forced to perform a duty which
courts and Legislatures have so long held, as
to him, to be a legal liability. It transforms an
unenforceable moral obligation into an actionable legal right. . . .”
Jackson v. State of New York, 261 N.Y. 134, 138, 184
N.E. 735 (1933).
As to the United States, “Absent a waiver, sovereign immunity shields the Federal Government and its
agencies from suit.” Federal Deposit Insurance Corporation v. Meyer, 510 U.S. 471, 475 (1994) (citation omitted). The sovereign’s consent is central to waiver, as
“[i]t is axiomatic that the United States may not be
sued without its consent,” the existence of which “is a
prerequisite for jurisdiction.” United States v. Mitchell,
463 U.S. 206, 212 (1983). To be sure, just like the UN’s
waiver of immunity under CPIUN § 2, “[w]aivers of the
Government’s sovereign immunity, to be effective,
must be “ ‘unequivocally expressed.’ ” Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95 (1990), quoting
United States v. Mitchell, 445 U.S. 535, 538 (1980), and
United States v. King, 395 U.S. 1, 4 (1969). But this
Court has also held that although there must be “an
unmistakable statutory expression of congressional intent to waive the Government’s immunity, Congress
need not state its intent in any particular way. We have
never required that Congress use magic words.” FAA v.

 20
Cooper, 566 U.S. 284, 291 (2012), citing Richlin Security Service Co. v. Chertoff, 553 U.S. 571, 589 (2008). To
the contrary, this Court has held that “the sovereign
immunity canon ‘is a tool for interpreting the law’ but
that it does not ‘displac[e] the other traditional tools of
statutory construction.’ ” Id.
The example of the Federal Tort Claims Act
(“FTCA”) illustrates this point and is analogous to the
waiver of immunity by the UN in this case. In the
FTCA, the federal government expressly waived its immunity for certain tort claims of a private law nature
through 28 U.S.C. § 2674. This statute provides: “The
United States shall be liable, respecting the provisions
of this title relating to tort claims, in the same manner
and to the same extent as a private individual under
like circumstances.” Id. In other words, as in the UN
reports and resolutions at issue here, the U.S. government’s acceptance of liability in the FTCA is an express waiver of immunity, subject to the exceptions and
limitations contained elsewhere in the act. Other sections of the FTCA, most notably § 2680, provide exceptions to this waiver, and jurisdictional provisions are
set forth in § 1346(b). Section 1346(b) also provides
additional descriptions of possible claims and limitations on these claims. To be clear, however, these jurisdictional provisions are not where the waiver of
immunity happens. As one scholar has noted: “Section
2674 states the substance of the waiver of sovereign
immunity in the FTCA. Although Subsection 1346(b)
is primarily a jurisdictional provision, conferring jurisdiction over FTCA actions in the United States District

 21
Courts, it also includes language describing permissible claims.”12 In the absence of any jurisdictional provisions such as those contained in § 1346(b), the
express waiver in § 2674 would still be express and
still be valid—and, as discussed, supra, would be applicable in any court of competent jurisdiction.
Other federal statutes convincingly reinforce the
fact that express waiver of immunity can be made
through the assumption of liability. Indeed, it is quite
common. The U.S. government, for example, has
waived its sovereign immunity under both the Employment Opportunity (EEO) Act, 42 U.S.C.S. § 2000e-16,
and the Age Discrimination in Employment Act
(ADEA), 29 U.S.C.S. § 633a, by accepting liability if
government workplaces are not free of employment
and age discrimination. Federal environmental statutes waive immunity in this manner as well. In the
Clear Water Act, 33 U.S.C.S. § 1323, as well as the
Clean Air Act, 42 U.S.C.S. § 7418, there are express
waivers of immunity in an agreement to be subject to
liability under various state and federal laws. So too,
with federal CERCLA statute, as set forth in 42 U.S.C.
§ 9620(a)(1), otherwise known as the Superfund law.
CERCLA provides: “Each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of government)
shall be subject to, and comply with, this chapter in the
same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity,
12

Gregory Sisk, Litigating With The Federal Government
(West Academic Publishing, 2016), p. 134.

 22
including liability under section 9607 of this title.” In
relation to the enactment, this Court held,
This is doubtless an “unequivoca[l] express[ion]” of the Federal Government’s
waiver of its own sovereign immunity, United
States v. Testan, 424 U.S. 392, 399 (1976), quoting United States v. King, 395 U.S. 1, 4 (1969),
since we cannot imagine any other plausible
explanation for this unqualified language.
Pennsylvania v. Union Gas Co., 491 U.S. 1, 10 (1989),
abrogated on other grounds in Seminole Tribe v. Florida, 517 U.S. 44 (1996).
Finally, consider the Fair Credit Reporting Act
(FCRA), which the Seventh Circuit in Bormes v. United
States, 759 F.3d 793, 795 (7th Cir. 2014), ruled was an
express waiver of the U.S. Government’s sovereign immunity from the jurisdiction of the courts:
Any “person” who willfully or negligently fails
to comply with the Fair Credit Reporting Act
is liable for damages. 15 U.S.C. §§ 1681n(a),
1681o(a). “Person” is a defined term: “any individual, partnership, corporation, trust, estate, cooperative, association, government or
governmental subdivision or agency, or other
entity.” 15 U.S.C. § 1681a(b)
759 F.3d, at 795 (emphasis in original).
Bormes continues,
The United States is a government. One
would suppose that the end of the inquiry. By
authorizing monetary relief against every

 23
kind of government, the United States has
waived its sovereign immunity. And so we conclude.
Id. (emphasis in original).
Under the laws of various sovereign U.S. states as
well, a waiver of absolute immunity from legal process
is also found in the express assumption of liability. In
California, for example, under Cal. Gov’t Code, § 815, a
public entity is “not liable for injury” except as provided for elsewhere in the statute. Thus, in Section
815.2, “[a] public entity is liable for injury proximately
caused by an act or omission of an employee of the public entity within the scope of his employment. . . .” As
with federal examples, it is the acceptance or acknowledgement of the liability in California law that is the
waiver of immunity, not any jurisdictional provision.
In New York, “ . . . [w]hile pertinent decisions of
many appellate courts (including the Court of Appeals)
. . . have on occasion conflated references to the scope
of the State’s waiver of sovereign immunity with undefined usage of the term ‘jurisdiction,’ ” Brown v. State
of New York, 89 N.Y.2d 172, 180 (1996), “the State can
be made liable for injuries arising from the negligence
of its agents or servants, only by force of some positive
statute assuming such liability.” Sipple v. State, 96 N.Y.
284, 287 (1885). And in West Virginia, while the immunity of the sovereign described in the Constitution
is from legal process (W. Va. Const. Art. VI, § 35: “The
State of West Virginia shall never be made defendant
in any court of law or equity. . . .”), express waivers of

 24
this immunity are often in the form of assumption of
liability. See, e.g., W. Va. Code § 29-12A-4; Univ. of W.
Va. Bd. of Trs. ex rel. W. Va. Univ. v. Graf, 205 W. Va. 118
(1998).13
The point, again, is not that sovereigns cannot, or
do not, also waive immunity from legal process by stating an immune entity is now subject to the jurisdiction
of the courts. Some do.14 But specific language related
to legal process or jurisdictional immunity is not
needed: in each of the examples cited, one with immunity from legal process who, subsequently, expressly assumes liability, thrusts off that blanket of immunity,
subject to any terms of the waiver itself as to jurisdictional, financial, temporal or procedural limitation.
This Court should affirm that such assumption of liability is indeed a common manner in which an entity
with absolute immunity waives its immunity and
agrees to “voluntarily discharge its moral obligations
in the same manner as the citizen is forced to perform
13

For additional examples of waiver of absolute immunity by
U.S. states via assumption of liability, see Vermont, 12 V.S.A.
§ 5601; New Jersey, N.J. Stat. § 59:2-2(a); Idaho Code § 6-903(1);
Kansas, K.S.A. § 75-6103; Florida, Fla. Stat. § 768.28; Maine, 14
M.R.S. § 8104-A(1); Massachusetts, ALM GL ch. 258, § 2; Minnesota, Minn. Stat. § 3.736; Montana, 2-9-102, MCA; Nebraska,
R.R.S. Neb. § 81-8,215; North Dakota, N.D. Cent. Code, § 32-12.202; Oklahoma, 51 Okl. St. § 153; Pennsylvania, 42 Pa.C.S.
§ 8522(b); Rhode Island, R.I. Gen. Laws § 9-31-1; South Carolina,
S.C. Code Ann. § 15-78-40; Virginia, Va. Code Ann. § 8.01-195.3;
Washington, Rev. Code Wash. (ARCW) § 4.92.090.
14
See, e.g., Alaska: Alaska Stat. § 09.50.250; Colorado:
C.R.S. § 24-10-108, et seq.; or Maryland: Md. Code. Ann., State
Gov’t § 12-101, et seq.

 25
a duty which courts and Legislatures have so long
held, as to him, to be a legal liability.” Jackson v. State
of New York, supra.
a. The Second Circuit previously held that
liability and immunity are mutually exclusive jural opposites.
The conflicting nature of the Second Circuit’s ruling in this case is underscored by its long-held precedent that assumption of liability and jurisdictional
immunity are mutually exclusive jural opposites. In
Krenger v. Pennsylvania R. Co., the Second Circuit
wrote that “liability is quite differentiated from a mere
duty to pay damages and serves as . . . the opposite of
immunity or exemption. 174 F.2d 556, 559 (2d Cir.
1949) (emphasis in original).”
This analysis, too, has been adopted by the UN. A
report entitled “Jurisdictional Immunities Of States
And Their Property,” by the UN’s Special Rapporteur,
directly addressed this theory of liability and the “jural
relationship”:
“[P]ower” has been correlated to “liability”;
and the opposite of “liability”, which is “immunity”, is correlative to “no-power” or “disability”. Thus, in a theory of jural relationship,
if “a State has immunity from the jurisdiction
from another State”, the same expression
could be stated correlatively from the standpoint of the other State as: “Another State has

 26
‘no-power’ to exercise its jurisdiction over a
State”.15
Thus, the UN understands quite well the jural relationship analysis: that an express assumption or acceptance of liability negates its opposite, immunity,
and removes the “disability” or “no-power” to exercise
jurisdiction in actions where such liability has been assumed.
III. A binding forum for the adjudication of
tort claims against the UN does not exist
and has never existed.
A common misconception is that the UN has binding claims processes in place for the adjudication of
claims for damages inflicted by the tortious acts of UN
peacekeeping forces. This is not true.16 Thus, while
15

A/CN.4/340 & Corr.1 and Add.1 & Corr.1, Third report on
jurisdictional immunities of States and their property, by Mr.
Sompong Sucharitkul, Special Rapporteur, Extract from the
Yearbook of the International Law Commission: 1981, vol.
II(1), at 132-133. Available at: http://legal.un.org/docs/?path=../ilc/
documentation/english/a_cn4_340.pdf&lang=EFS (last accessed
May 5, 2019).
16
Consider Justice Breyer’s dissent to this Court’s decision
in Jam v. Int’l Fin. Corp., ___ U.S. ___, 139 S. Ct. 759 (2019),
which, while perhaps accurate as to contract and other commercial claims, clearly is not as to tort claims (as this case has shown):
Other organizations have attempted to solve the liability/immunity problem by turning to multilateral, not
single-nation, solutions. The UN, for instance, has
agreed to “make provisions for appropriate modes of
settlement of . . . [d]isputes arising out of contracts or
other disputes of a private law character.” Convention

 27
both the district court and the Second Circuit ruled
that the assumption of liability by the UN in Reports
A/51/389 and A/51/903 were limited to internal processes, the “standing claims commissions” referenced
in these reports do not exist, and have never existed in
the history of the UN. The Secretary-General acknowledges this in the reports, and the General Assembly
knew this when enacting UN Resolution A/52/247. The
Secretary-General also points out in A/51/389 that
other internal UN claims processes are voluntary and
nonbinding on the Organization, and indeed many
claims are often left unresolved, particularly as a UN
mission winds down.17 A final point of evidence can be
found in the fact that the claims of 5,000 victims of the
Haitian cholera plague that were presented to the UN
were dismissed without consideration as “not receivable.”18
So, despite the clear acknowledgement of liability
by the UN, it is quite impossible for a claimant to submit a claim to any binding UN forum for adjudication
of tort claims such as this. And this Court has long held
that the law will not read statutory enactments to
yield such impossible results: “Lex non intendit aliquid
impossible is a familiar maxim of the law. The supposition should not be indulged that [a legislative body] . . .
on Privileges and Immunities of the United Nations,
Art. VIII, § 29, 21 U.S.T. 1438, T.I.A.S. No. 6900, 139
S. Ct. 780.
17
UN Report A/51/389, ¶ 28.
18
See Laventure, et. al. v. United Nations (2d Cir. C.A., Case
No. 17-2908), Dkt. No. 41, p. 23 (December 29, 2017).

 28
intended to make its protection depend upon the performance of conditions which it was physically impossible to perform.” Chew Heong v. United States, 112
U.S. 536, 554-555 (1884). Chew Heong is an immigration case involving an amendment to the Chinese Exclusion Act of 1882, wherein Congress required
Chinese laborers residing in the United States to obtain reentry certificates before they left the country if
they intended to return. Chew Heong, who left before
the amendment was enacted, attempted to return not
long after it went into effect. Lacking the certificate—
which could only be obtained in the United States—he
was denied permission to return. This Court ruled that
the enactment would not be read “to lead to injustice,
oppression, or an absurd consequence.” 112 U.S. at 555.
Petitioners submit to this Court that it is no more
possible for a victim of a tortious act by a UN peacekeeper to bring a claim before a binding UN claims process than it was for Chew Heong to travel freely, yet be
in the U.S. to obtain his reentry certificate at the same
time. Thus, in this case, the use of the term liability by
the Secretary-General could not have been referring to
these mythical or nonbinding processes, since this
would create an impossibility in the enactment that
this Court has long held it will not allow.

 29
IV. The Secretary-General’s reports do not
state that the UN’s assumption of liability
was restricted to its internal claims processes, nor that the UN has retained immunity where liability is assumed.
While the Second Circuit held that any waiver of
immunity by the UN related solely to claims brought
before internal UN processes, nowhere in any of the
statements of the Secretary General, nor in the binding resolution of the General Assembly adopting these
reports, does it say this. Rather, the Second Circuit
(and the district court before it) suggests these reports
imply such limitation. The Second Circuit then combines parts of sentences from various sections of the
Secretary-General’s reports to justify its conclusion.
But in contrast to the out-of-context quotes in the
decisions of the Second Circuit and the district court, a
reading of the full reports reinforces that no direct limitation of the agreement to be liable to UN internal
processes were either stated or implied. Report
A/51/389, for example, stated that it will detail three
different things: (1) the scope of UN liability for activities of UN forces; (2) procedures for the handling of
third-party claims presented internally; and, (3) limitations of liability.19 Nowhere does it suggest that the
scope of UN liability as described in (1) is only in the
context of, or otherwise constrained by, the internal
procedure for handling third party claims review in (2),
or that this scope of liability is only within the context
19

UN Report A/51/389, ¶ 5.

 30
of retained privileges and immunities. In fact, the report states the opposite:
The undertaking to settle disputes of a private law nature submitted against it and the
practice of actual settlement of such thirdparty claims—although not necessarily according to the procedure provided for under
the status-of-forces agreement—evidence the
recognition on the part of the United Nations
that liability for damage caused by members
of United Nations forces is attributable to the
Organization (emphasis added).20
What the district court and the Second Circuit
seem to be suggesting is that, simply by including this
agreement to be liable in the same reports that discuss
internal claims processes, the Secretary-General of the
UN, despite never saying so, must have intended this
assumption of liability to be restricted to these processes. But is such an interpretation enough to “bolt
the courtroom doors,” absent any other evidence to
support such a reading—and where such a reading creates a condition that is impossible to perform given the
undisputed definition of the term liability?
Notably, it is only in paragraph 7 of that 14-page
document that there is single mention of immunity—
the only mention in the entire 7,200-word document.
There, the Secretary-General states that the UN “has
undertaken in paragraph 51 of the model status-offorces agreement [SOFA] . . . to settle by means of a
20

Id., ¶ 8.

 31
standing claims commission claims resulting from
damage caused by members of the force in the performance of their official duties and which for reasons of
immunity of the Organization and its Members could
not have been submitted to local courts.”21 The model
status-of-forces agreement referenced in this paragraph was written and published in 1990, five years
before the unambiguous assumption of liability in this
document.
Thus, the only mention of immunity in the Secretary-General’s report is in the past tense and references a model status-of-forces agreement prepared
long before the express acceptance of liability (and consequent waiver of immunity) in A/51/389. Contrary to
the Second Circuit’s ruling, it is highly implausible
that this single mention of immunity was intended to
cover the entire document, constraining the scope of
UN liability to a nonbinding claims process.
In addition to laying out financial and temporal
limits to the liability assumed in the UN’s express
waiver, the final section of A/51/389 also explains that
while the UN must deal with claims by third parties
where liability has been assumed, contributing Governments will be legally responsible for indemnifying
the UN in cases where damages are caused by the
“gross negligence or willful misconduct” of their own
peacekeeping forces.22 This provision, too, makes no
reference to either an internal claims settlement
21
22

Id., at ¶ 7.
Id., at ¶ 42.

 32
process or a retention of immunity in circumstances
where liability is assumed.
In sum, it is highly implausible to suggest that the
statements in that report relating to the UN’s acceptance of liability were, in any way, confined to its
voluntary internal claims process. Nor does the Report
anywhere suggest an intent on the part of the UN to
maintain its privileges and immunities in those areas
where the UN has agreed to be liable. There is simply
no language to that effect. In fact, the UN’s clear, unambiguous intent is that immunity is waived in these
circumstances. To find otherwise would be to hold that
a single, isolated reference to immunity contained in a
paragraph relating to a status-of-forces agreement enacted years earlier somehow flows to every corner of
this document—a provision that applies as readily to
areas where liability is not assumed (such as for damages in the course of combat activities or operational
necessity). The laws of contractual or statutory interpretation do not permit parties to conjure language
missing from the clear text of a document. The document must be read as a whole.
In follow-up to A/51/389, on May 21, 1997, the UN
Secretary-General issued Report A/51/903 as a “supplemental” report.23 This report laid out further temporal and financial limitations to the liability of the
Organization, described the nonbinding internal
claims process, and recommended changes to the liability clause of the model status-of-forces agreement
23

UN Report A/51/903, ¶ 1.

 33
(SOFA) that would recognize this new, clearly and unambiguously stated acceptance of liability.24 As in Report A/51/389, there is but a single mention of UN
immunity, in a paragraph discussing the prior version
of the model SOFA, one that existed before the express
assumption of liability was made in A/51/389.
Both A/51/389 and A/51/903 were expressly incorporated, agreed to and adopted by the UN General Assembly through UN Resolution 52/247, dated June 26,
1998. In A/52/247, the UN again expressly agreed to
assume liability for “third-party claims against the
Organization for personal injury, illness or death . . .
resulting from or attributable to the activities of members of peacekeeping operations in the performance of
their official duties.”25 There is no mention of the UN’s
immunity at all, and—as in each of the other documents that form the basis of this legislative enactment—no mention that such waiver of immunity is
restricted to an internal claims process.
Finally, it should be noted that the express assumption of liability contained in these reports is quite
limited. Report A/51/389 distinguishes between “tortious liability of the Organization for damage caused
in the ordinary operation of the force . . . and its liability for combat-related damage whether in the course of
a Chapter VII operation, or in a peacekeeping operation where force has been used in self-defence.”26 That
is, the Secretary-General clearly states that the waiver
24
25
26

Id., at ¶ 10.
UN General Assembly Resolution A/52/247, ¶ 5.
UN Report A/51/389, ¶ 3.

 34
does not apply to the UN’s combat-related actions, nor
to actions grounded in operational necessity, but rather only to those damages resulting from the “ordinary operation of the force”—thus vastly limiting the
parameters of the waiver.27 A subsequent report of the
United Nations reinforces the limited nature of this acceptance of liability, noting that A/51/903 “ . . . deals
with third-party claims for personal injury, illness or
death and property loss or damage attributable to the
activities of members of peacekeeping operations in
the performance of their official duties. It does not
cover claims relating to troops nor does it apply in
cases of injury to civilian staff . . . in cases of gross fault
or wilful or criminal intent, the Organization would
seek recovery from the individual or the troopcontributing State concerned.”28 Notably, there is no
mention of immunity in this entire report.
V.

A plaintiff has met its burden to survive dismissal under FRCP 12(h)(3) where an affirmative, plausible case has been made for
jurisdiction and there is no other plausible
explanation for the use of a term in a legislative enactment that has a well-known
meaning at common law and the law of the
United States.

The above review of the Secretary-General’s reports is intended to show that, at the pleading stage of
27

Id.
UN Report A/52/410, ¶ 4 (October 1, 1997), available at:
https://undocs.org/A/52/410 (last accessed May 9, 2019).
28

 35
this litigation, Petitioners more than met their burden
to survive dismissal for lack of jurisdiction under
FRCP 12(b)(1) and 12(h)(3). Yet, in upholding the dismissal of Petitioners’ claims at the pleading stage,
without any plausible explanation as to why the UN
would use the term liability to refer to claims processes
that do not exist or are nonbinding, the Second Circuit
has impermissibly raised the bar for surviving dismissal under 12(b)(1) and 12(h)(3) to something akin to a
“beyond all reasonable doubt” standard. In other
words, the Second Circuit effective held that any alternate explanation for the UN’s acceptance of liability,
regardless of its impossibility or implausibility, is
enough to establish doubt as to the Organization’s actual intent. In holding plaintiffs at the pleading stage
under Rule 12(h)(3) to a standard that is clearly beyond any other this Court has enumerated for express
waiver of immunity in other contexts, the Second Circuit is in conflict with pleading standards set forth by
this Court—most notably the plausibility standards of
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
U.S. courts have held that the standard governing
Rule 12(h)(3) is the same as that governing a motion
under Rule 12(b)(1), See, e.g., Jo v. JPMC Specialty
Mortg., LLC, 248 F. Supp. 3d 417, 422 (W.D.N.Y. 2017),
and a Rule 12(b)(1) motion is subject to the same
standards as a motion to dismiss for failure to state a
claim under Rule 12(b)(6). Tarros S.p.A. v. United
States, No. 13 CIV. 1932 (JPO), 2013 WL 6084243, at
*4 (S.D.N.Y. Nov. 19, 2013), citing Lerner v. Fleet Bank,

 36
N.A., 318 F.3d 113, 128 (2d Cir. 2003). If a plaintiff can
prove subject-matter jurisdiction by a preponderance
of the evidence, the case should not be dismissed. Wells
Fargo Bank, N.A. v. Ullah, No. 13 CIV. 0485 (JPO), 2014
WL 470883, at *2 (S.D.N.Y. Feb. 6, 2014).
Under Twombly and Iqbal, to survive a motion to
dismiss, a complaint must plead “enough facts to state
a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim will
have facial plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 678, citing Twombly, at 556. Moreover, while “ ‘[j]urisdiction
must be shown affirmatively . . . ’ ” APWU v. Potter, 343
F.3d 619 (2d Cir. 2003) (quoting Shipping Fin. Servs.
Corp v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998)), a
“plausible” claim is . . . less than a “probability requirement.” Twombly, at 556. As this Court has explained,
“ ‘[j]urisdiction . . . is not defeated . . . by the possibility
that the averments [in a complaint] might fail to state
a cause of action on which petitioners could actually
recover.’ What plaintiffs must allege to survive a jurisdictional challenge, then, ‘is obviously far less demanding than what would be required for the plaintiff ’s case
to survive a summary judgment motion’ or a trial on
the merits.” Helmerich & Payne Int’l Drilling Co. v. Bolivarian Republic of Venez., 415 U.S. App. D.C. 21, 2829, 784 F.3d 804, 811-12 (D.C. Cir. 2015), quoting Bell
v. Hood, 327 U.S. 678, 682 (1946).

 37
A plausible, affirmative showing of subject matter
jurisdiction is the hurdle that Petitioners in this case
had to clear for this action to move forward. Plaintiffs
have far exceeded this standard, and the Second Circuit erred in finding to the contrary. Plaintiff ’s thus petition this Court to consider whether the Second
Circuit has impermissibly raised the pleading standard to survive dismissal under FRCP 12(h)(3).
------------------------------------------------------------------

CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
JAMES F. HAGGERTY
Counsel of Record
LAW OFFICE OF JAMES F. HAGGERTY
45 Broadway, Suite 3140
New York, NY 10006
(212) 470-0800
jhaggerty@haggertylegal.com
PAUL M. TARR
LESTER SCHWAB KATZ
& DWYER LLP
100 Wall Street, 27th Floor
New York, NY 10005
(212) 964-6611
ptarr@lskdnylaw.com
May 10, 2019

MARK A. GOTTLIEB
NORTHEASTERN UNIVERSITY
SCHOOL OF LAW
360 Huntington Avenue
Boston, MA 02115
(617) 373-2026
mark@phaionline.org