Kling v. The World Health Organization

Background

Richard O. Kling, M.D., Brenda Sutton, Shirley Morton, Kenya Tucker, Harold Wimbush, Simon Allison, and Patricia Hull sued the World Health Organization (WHO), individually and on behalf of proposed classes. They alleged that the WHO negligently and recklessly responded to the COVID-19 pandemic between December 2019 and March 2020. Their allegations included that the WHO failed to declare an international public-health emergency soon enough, failed to properly monitor China’s response, delayed treatment guidelines and other guidance, and failed to act as a global coordinator. They alleged resulting injury and harm to themselves and proposed class members in Westchester County, New York.

The WHO moved to dismiss all claims under Federal Rule of Civil Procedure 12(b)(1), which permits dismissal when a federal court lacks power to hear a case. The WHO argued that its immunity from suit deprived the court of subject-matter jurisdiction.

WHO Constitution and International Organization Immunities Act

The WHO argued that its constitution and the 1947 Convention on the Privileges and Immunities of the Specialized Agencies gave it absolute immunity unless it expressly waived that immunity. The court did not decide whether the WHO constitution independently provided binding immunity under United States law. Instead, it held that the WHO was independently immune under the International Organization Immunities Act (IOIA).

The IOIA gives designated international organizations the same immunity from suit and judicial process enjoyed by foreign governments, except to the extent they expressly waive immunity for a proceeding or by contract. The court explained that the Foreign Sovereign Immunities Act (FSIA) governs that immunity. The WHO had been designated by executive order as an international organization entitled to IOIA privileges, exemptions, and immunities, and the plaintiffs did not dispute that the FSIA applied.

FSIA’s Non-Commercial Tort Exception

The plaintiffs relied on the FSIA’s non-commercial tort exception. That exception can remove immunity for claims seeking money damages for personal injury, death, or property damage in the United States caused by a foreign state’s tortious act or omission. The court emphasized that the exception is narrow and applies only when the entire tort—including both the injury and the act causing it—occurred in the United States. It also does not apply to claims based on discretionary functions.

The court held that the plaintiffs did not allege that the relevant WHO conduct occurred in the United States. Their complaint identified conduct in China, the WHO’s Western Pacific Regional Office in the Philippines, and the WHO’s headquarters in Geneva, Switzerland, along with online statements and actions in unspecified locations. The plaintiffs did not provide facts showing that WHO personnel in the United States were responsible for the challenged conduct.

The court also rejected the argument that the conduct occurred in the United States because the WHO used the internet, Twitter, or other platforms associated with American companies. Access to information in the United States or use of an internet platform based in the United States did not show that the entire tort occurred there. The court added that, even if some dissemination occurred in the United States, the alleged conduct was primarily outside the country and would still be a transnational tort outside the exception.

Discretionary Acts

The court separately held that the discretionary-acts limitation preserved the WHO’s immunity. A discretionary act involves judgment or choice rather than conduct compelled by a statute or regulation, and the judgment must involve public-policy considerations.

The plaintiffs argued that the International Health Regulations imposed mandatory duties on the WHO. The court concluded that the cited provisions either imposed duties on member states, did not impose the claimed duties on the WHO, or described discretionary functions. In particular, the WHO’s decisions about sharing information and declaring a public-health emergency involved assessments of public-health risk, available scientific evidence, international spread, and effects on international travel. The court characterized those decisions as policy judgments that could not be challenged through hindsight in this lawsuit.

Waiver and Leave to Amend

The plaintiffs had also alleged that the WHO impliedly waived immunity by violating fundamental international-law norms, but they abandoned that argument in their opposition brief. The court noted that Second Circuit precedent rejected the theory that such a violation constitutes implied waiver under the FSIA. The record also contained no plausible indication that the WHO had expressly waived immunity.

The court declined to grant leave to amend. The plaintiffs had already amended their complaint twice, including once after receiving notice of the proposed immunity arguments and an opportunity to add facts. The court concluded that the immunity problem could not be cured by better pleading and that the plaintiffs had not requested another amendment or explained how they could cure the deficiencies.

Disposition

Judge Cathy Seibel granted the WHO’s motion to dismiss. The court dismissed the Second Amended Complaint with prejudice, declined to grant leave to amend, directed the Clerk to terminate the motion, and closed the case.