International Orgs. Unlawfully Trafficking Cuban Doctors Lack Foreign-State Immunity, Rules D.C. Fed. Court

On November 9, in the District Court for the District of Columbia, the court proclaimed that international organizations, following recent U.S. Supreme Court precedent, no longer retained absolute immunity from lawsuits in federal courts and therefore could be sued for injunctive relief and/or damages when illegally facilitating the trafficking of medical professionals. The underlying case involved a group of Cuban physicians suing the Pan American Health Organization (PAHO) on allegations that PAHO facilitated the illegal trafficking of Cuban medical professionals to Brazil, in order to avoid Brazilian national law that mandated such programs exporting medical services must receive approval from the Brazilian government. 

The court described the pertinent facts as follows: The plaintiffs, a group of Cuban-American physicians acting on behalf of a putative class of all physicians trafficked in a similar fashion, sued PAHO, the defendant described as “an international body affiliated with the World Health Organization and tasked with advancing public health in the Western Hemisphere.” The cause of action, as noted above, claimed that the defendant received money to illegally create the Mais Medicos program, a medical services exportation program that sent thousands of physicians from Cuba to Brazil and operated as the financial intermediary overseeing the transfer of funds between the countries. A program like Mais Medicos legally required both countries in the exchange to create a bilateral agreement about program logistics, with the agreement requiring majority approval by the legislative bodies of the contractual party-countries. The plaintiffs purported that PAHO operated as an intermediary to skirt around this contractual requirement, since prior to 2019, PAHO maintained absolute immunity from alleged violations of U.S. anti-human trafficking laws. This, the plaintiffs concluded, resulted in PAHO lobbying the Cuban government to encourage physicians to join Mais Medicos, confiscating passports once the Cuban physicians arrived in Brazil, and paying wages at an amount as low as 10% of that which the physicians agreed. In response, the putative plaintiff class argued that such actions violated the Trafficking Victims Protection Act (TVPA). 

The TVPA, the district judge explained, prevents international organizations from creating, furthering, or profiting from a venture within the United States that knowingly engages in “providing or obtaining forced labor or services.” PAHO however asserted that the organization retained absolute immunity from TVPA suits under the International Organizations Immunities Act (IOIA) and thus the law required the court to dismiss the plaintiffs’ TVPA claims due to lacking subject-matter jurisdiction. The court explained that the defendant’s argument operated as the law until 2019, when the Supreme Court ruled in Jam v. International Finance Corp. that aforementioned absolute immunity no longer existed. The new standard, the opinion laid out, gives PAHO presumptive immunity from TVPA suits, with the presumption being rebutted if the plaintiffs prove that PAHO engaged in a commercial activity within the United States.

The court summarily determined that the plaintiffs successfully rebutted PAHO’s presumption of immunity by producing evidence that proved that PAHO transferred funds resulting from the alleged illegal human trafficking program between Cuba and Brazil using a CitiBank account located in Washington, DC. The district judge wrote that “the Court concludes that such conduct qualifies as commercial activity under the…IOIA…(as) it is a normal commercial function to act for another in collecting and holding funds…and it is also a normal commercial function to act as a financial intermediary transferring funds, for a fee, from one entity to another.”