United States Court of Appeals
F OR T HE D ISTRICT OF C OLUMBIA C IRCUIT
____________
No. 08-7042 September Term 2009
1:06-cv-02143-RBW
Filed On: October 5, 2009
Jorge Vila,
Appellee
v.
Inter-American Investment Corporation,
Appellant
BEFORE: Sentelle, Chief Judge, and Ginsburg, Henderson, Rogers, Tatel,
Garland, Brown, Griffith, and Kavanaugh, Circuit Judges
ORDER
Appellant’s petition for rehearing en banc and the response thereto were circulated to the
full court, and a vote was requested. Thereafter, a majority of the judges eligible to participate
did not vote in favor of the petition. Upon consideration of the foregoing, it is
ORDERED that the petition be denied.
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Michael C. McGrail
Deputy Clerk
Statements of Circuit Judge Rogers and Senior Circuit Judge Williams are attached.
United States Court of Appeals
F OR T HE D ISTRICT OF C OLUMBIA C IRCUIT
____________
No. 08-7042 September Term 2009
ROGERS, Circuit Judge: Judge Williams has filed a statement inviting a challenge to the
interpretation of a waiver of immunity provision in the articles of agreement adopted by an
international organization. He presents an argument that was not raised by any party to this
appeal. See Vila v. Inter-American Investment Corporation, 570 F.3d 274 (D.C. Cir. 2009).
Neither was the argument raised sua sponte by any member of the court originally hearing this
appeal. Indeed, the case on which Judge Williams relies for this new argument - Lutcher S.A.
Celulose e Papel v. Inter-American Development Bank, 382 F.2d 454 (D.C. Cir. 1967) - was not
cited by any party or even by Judge Williams in his dissenting opinion as a member of the
original court to hear this appeal, see Vila, 570 F.3d at 286-90. Furthermore, the argument he
presents would be of no interest to either party to this appeal.
In Mendaro v. World Bank, 717 F.2d 610 (D.C. Cir 1983), which the parties did discuss,
this court did not overlook Lutcher but explained why it “was unable to read the somewhat
clumsy and inartfully drafted language of Article VII section 3 - which the Lutcher court
admitted was ‘hardly a model of clarity,’ - as evincing an intent by the members of the Bank to
establish a blanket waiver of immunity from every type of suit not expressly prohibited by
reservations in Article VII section 3.” Id. at 614-15 (quoting Lutcher, 382 F.2d at 456). In
rejecting the contention that the waiver provision was to be broadly interpreted subject only to
the express reservations in Article VII section 3, the court explained such an interpretation, as
adopted in Lutcher, was
logical only if the waiver provisions are read in a vacuum, without reference to the
interrelationship between the functions of the Bank set forth in the Articles of
Agreement and the underlying purposes of international immunities. When the
language of Article VII section 3 is approached from this viewpoint it is evident
that the World Bank’s members could only have intended to waive the Bank’s
immunity from suits by its debtors, creditors, bondholders, and those other
potential plaintiffs to whom the Bank would have to subject itself to suit in order
to achieve its chartered objectives. Since a waiver of immunity from employees’
suits [at issue in Mendaro] arising out of internal administrative grievances is not
necessary for the Bank to perform its functions, and could severely hamper its
worldwide operations, this immunity is preserved by the members’ failure
expressly to waive it. Our reading of Article VII section 3 is both congruent with
the other articles governing the Bank’s relationship with its members and
consistent with the firmly established international treaty and customary law,
United States case law, and the considered opinion of the United States Executive
Branch.
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United States Court of Appeals
F OR T HE D ISTRICT OF C OLUMBIA C IRCUIT
____________
No. 08-7042 September Term 2009
Id. at 615.
Thus the parties were necessarily aware, in citing Mendaro, of Lutcher’s different
interpretation of the scope of the waiver of immunity. Yet Lutcher’s approach was not pursued
because neither party had an interest in making the argument raised by Judge Williams. The
plaintiff (Vila) prevailed under Mendaro’s long-standing functional interpretation of the scope of
the waiver provision in light of circuit precedent applying that interpretation, see Vila, 570 F.3d
at 280 (citing Osseiran v. International Finance Corporation, 552 F.3d 836 (D.C. Cir. 2009)).
The defendant (the Inter-American Investment Corporation), on the other hand, was seeking a
further narrowing of the scope of the waiver of immunity, not revival of Lutcher’s broad
interpretation. See id. at 280-81. Consequently, Judge Williams’s suggestion of incompatibility
between the court’s interpretations of the waiver of immunity provision in Mendaro and Lutcher
requires no substantive response at this time for it is wholly outside the bounds of the issues the
court may properly address in this appeal.
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United States Court of Appeals
F OR T HE D ISTRICT OF C OLUMBIA C IRCUIT
____________
No. 08-7042 September Term 2009
WILLIAMS, Senior Circuit Judge. Although not entitled to vote on the petition for
rehearing en banc, I have two observations, one quite obvious, the other not.
First: The petition for rehearing en banc argues that the majority’s decision here is
inconsistent with this circuit’s decisions in Mendaro v. World Bank, 717 F.2d 610 (D.C. Cir.
1983), and Atkinson v. Inter-American Development Bank, 156 F.3d 1335 (D.C. Cir. 1998). For
the reasons given in my opinion dissenting from the panel opinion, I agree. See Vila v. Inter-
American Investment Corporation, 570 F.3d 274, 286-90 (D.C. Cir. 2009) (dissent).
Second: Nonetheless, declining to hear the case en banc is entirely reasonable. Mendaro
itself appears impossible to reconcile with our prior reading of equivalent language. In Lutcher
v. Inter-American Development Bank, 382 F.2d 454 (D.C. Cir. 1967), we interpreted the
language of another international financial organization’s charter, virtually identical to that
considered in Mendaro and the present case:
Actions may be brought against the Bank only in a court of competent jurisdiction in the
territories of a member in which the Bank has an office, has appointed an agent for the
purposes of accepting service or notice of process, or has issued or guaranteed securities.
Id. at 456 (quoting Inter-American Development Bank Charter Art. XI, § 3). We said that this
must be read as either “merely describing the available forum for such suits and actions as to
which waiver had been otherwise made, [or] it must itself be a waiver of immunity.” Id. at 456-
57. We rejected the idea that it was either a venue provision or a partial waiver, describing it
instead “as permitting the assertion of a claim against the Bank by one having a cause of action
for which relief is available.” Id. at 457.
Mendaro, however, found that the exact same language quoted above effected only a limited
waiver, applicable only where “the benefits accruing to the organization as a result of the waiver
would be substantially outweighed by the burdens caused by judicial discretion of the
organization’s discretion to select and administer its programs.” Mendaro, 717 F.2d at 617.
None of the parties in Vila raised the issue of Mendaro’s correctness. Future litigants may
wish to do so, knowing that, while the panel will have little choice but to apply our later cases,
assertion of Lutcher will preserve the tension between Mendaro and Lutcher for en banc review.
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