El Omari v. Int'l Criminal Police Org.

OUSSAMA EL OMARI Plaintiff, v. THE INTERNATIONAL CRIMINAL POLICE ORGANIZATION - INTERPOL, Defendant.

19CV1457 (SJ) (PK)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

May 13, 2021

MEMORANDUM AND ORDER

JOHNSON, Senior District Judge:

Plaintiff Oussamma El Omari ("Plaintiff"), a citizen of the United States and a resident of North Carolina, brings this action against the International Criminal Police Organization ("Interpol" or "Defendant"), an inter-governmental organization headquartered in Lyon, France. Plaintiff claims that Defendant's issuance and refusal to delete a Red Notice against Plaintiff constituted Negligent Infliction of Emotional Distress and violated his due process rights under the New York State Constitution, NY Const. Art. I, § 6. Plaintiff seeks a money judgment against Defendant. In the alternative, Plaintiff seeks a declaratory judgment that Defendant waived its immunity under 22 U.S.C. § 288a(b).

Presently before this Court is Defendant Interpol's Motion to Dismiss for Lack of Subject Matter Jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1), Lack of Personal Jurisdiction, pursuant to Federal Civil Procedure 12(b)(2), Insufficient Service of Process, pursuant to 12(b)(5), and Failure to State a Claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). Based on the submissions of the parties and for the reasons stated herein, the Motion is GRANTED and the case DISMISSED.

FACTUAL BACKGROUND

I. Interpol

Interpol is an international police organization with 194 member countries. Starner Decl., Ex. A. Its headquarters is in Lyon, France and it is governed by an agreement between France and Interpol—The Agreement Between the International Criminal Police Organization - INTERPOL and the Government of the French Republic Regarding INTERPOL's Headquarters in France ("Headquarters Agreement"). See id., Ex. E. The operative Headquarters Agreement entered into force on September 1, 2009 and was modified by additional protocol on March 17, 2016. See id., Ex. F. The General Secretariat, the body that coordinates Interpol's day-to-day activities, sits in Lyon and is staffed by Interpol employees and police officials from Interpol member countries who are seconded to the organization. See id., Ex. A. Interpol also maintains a global complex for innovation in Singapore and several satellite offices. Id. Every Interpol member country has a National Central Bureau (NCB). Id. Each Interpol NCB is run by national police officials and is intended to serve as link between the member country's national police and the global Interpol network. Id.

Interpol's primary function is to facilitate transnational policing by providing member countries' police agencies with a communication network. See James Sheptycki, The Accountability of Transnational Policing institutions: The Strange Case of Interpol, 19 CAN. J.L. & SOC. 107, 116. (2004). To do this, Interpol serves as "a central repository for the collection, transmission, and analysis of information on transnational criminals." Ethan A. Nadelmann, Role of the United States in the International Enforcement of Criminal Law, 31(1) Harv. Int'l. L.J. 37, 46 (1990). It also acts as a conduit for international arrest warrants, extradition requests, and requests for criminal evidence. Id. It is not, however, an operational police force. Interpol does not issue judgments, pursue criminal evidence, or pursue fugitives. See Sheptycki, supra.

a. Red Notices

To facilitate communication among members' police forces, Interpol uses a system of color-coded notices. Starner Decl., Ex. D. At issue here is the rednotice. A red notice is, in effect, an international wanted persons' notice. See Mario Savino, Global Administrative Law Meets Soft Powers: The Uncomfortable Case of Interpol Red Notices, 43 N.Y.U. J. INT'L L. & POL. 263, 286 (2011). At the request of an international organization or an NCB, Interpol will draft a red notice and disseminate it "in order to seek the location of a wanted person and his/her detention, arrest or restriction of movement for the purpose of extradition, surrender or similar lawful action." Starner Decl., Ex. D.

A red notice must meet certain criteria for dissemination.¹ These criteria include offense, penalty, and data threshold requirements. Id. A red notice will not be published until the General Secretariat conducts a legal review for compliance. Id. Following the publication of a red notice, the subject of the red notice may request information about or deletion of the red notice via the Commission for Control of Interpol's Files ("CCF"), a quasi-judicial independent body. The subject may also submit a request for deletion of the red notice to the CCF. Compl. ¶ 53. There is no appeals process, but the subject may request a revision based on new information. Id. at ¶ 55.

b. The United States and Interpol

The United States joined Interpol in 1938. See 22 U.S.C.A. § 263a ("[t]he Attorney General is authorized to accept and maintain, on behalf of the United States, membership in the International Criminal Police Organization"). Congress subsequently amended the legislation to specify that the United States' member dues for Interpol were to be paid from the Department of Justice Budget. Id. In 1968 the United States established its NCB ("USNCB") in Washington DC. See Mot. to Dismiss at 3. The USNCB operates under the joint supervision of the Department of Justice and the Department of Homeland Security. Id.

On June 16, 1983, President Reagan designated Interpol an "International Organization" with limited immunity under the International Organization Immunities Act ("IOIA"), 22 U.S.C. § 288 via Executive Order No. 12,425. The IOIA articulates the process for designating an organization an international organization. Designation as an international organization under the IOIA entitles organizations to the same immunity granted to foreign sovereigns. See 12 U.S.C. § 288a(b) ("International organizations...shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign government"); see also Committee on Ways and Means, Granting Certain Privileges and Immunities to International Organizations and Employees H.R. Rep. No. 1203, 79th Cong., 1 Sess. 1 (1945), at 1 (the purposeof the act is to provide international organizations and their officials and employees "privileges and immunities of a governmental nature"). Congress passed the IOIA on December 29, 1945 in response to the United States' increasing participation in international organizations. See Edward Chukwuemeke Okeke, Jurisdictional Immunity of International Organizations in the United States in the Wake of the Supreme Court Decision in Jam v. IFC, 2020, INTERGOVERNMENTAL ORG. IN-HOUSE COUNS. J. 1, 2 (2020). Since 1983, presidents have decreased the restrictions on Interpol's immunity under the Act, and in 2009 President Obama issued Executive Order 13,524, which removed all remaining limitations on Interpol's IOIA immunity.

II. PLAINTIFF'S CLAIM

As stated supra, Plaintiff is a United States citizen and a North Carolina citizen. Compl. ¶ 1. He previously worked in an Economic Free Zone in the United Arab Emirates (UAE) as an employee of Sheikh Faisal Bin Saqr Al Qassimi, a member of the UAE's royal family. Id. at ¶ 52. On July 31, 2016, Plaintiff landed at JFK Airport, New York. Id. at ¶ 46. As Plaintiff passed through U.S. Customs and Border Protection ("CBP"), several CBP Officers stopped Plaintiff and questioned him about his experiences in the UAE. Id. at ¶ 47. The CBP officers also cautioned Plaintiff against returning to theUAE, warning him be "careful" because if he returned to the UAE he would be arrested and put in jail. Id.

Following this exchange, a CBP officer moved Plaintiff to a different room and took his passport. Id. at ¶ 48. Plaintiff overheard the CBP officers talking about Plaintiff over the phone. Id. After multiple phone calls about Plaintiff, the officer returned Plaintiff's passport, inspected Plaintiff's luggage, and allowed Plaintiff to leave the airport. Plaintiff returned to North Carolina the next day after missing his original connecting flight. Id. at ¶ 49.

The incident alerted Plaintiff to the possibility that Interpol had issued a red notice against him. Id. at ¶ 50. On October 26, 2016, Plaintiff submitted a written request to Interpol seeking all information it had about Plaintiff. Id. On November 24, 2016 Interpol responded by letter, confirming that Plaintiff's file did contain a red notice. Interpol informed Plaintiff that the red notice stated that the UAE NCB had requested the issuance of a red notice in connection with Plaintiff's February 8, 2015 conviction in absentia of embezzlement and abuse of power by the Criminal Court of Ras Al Kaimah. Compl. Id. at ¶ 51.

Plaintiff claims that before he was detained at JFK, he was unaware of the judgment against him because the UAE denied him notice of the charges,barred him from accessing evidence or witnesses, and issued the judgment in secret and in absentia.² Id. at ¶ 52.

In response, Plaintiff submitted a written request to Interpol on December 15, 2016. In the response, Plaintiff lodged a complaint against Interpol, asked that Interpol delete the red notice and all related documents and files, and requested the opportunity to appear in front of Interpol by counsel with an expert witness. Id. at ¶ 53. On July 20, 2017, Interpol declined to delete the red notice and did not address Plaintiff's request for a hearing. Instead, it invited Plaintiff to reach out directly to the UAE to dispute the conviction. Id. at ¶ 54. On August 17, 2017 Plaintiff requested that Interpol revise its decision. On November 6, 2017, Interpol denied Plaintiff's request for revision. Id. at ¶ 56.

Plaintiff then brought this action on March 13, 2019. Plaintiff argues that by issuing and failing to delete the red notice, Interpol puts him "in serious and extreme fear for...