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SUPREME COURT OF THE UNITED STATES
IN THE SUPREME COURT OF THE UNITED STATES
BUDHA ISMAIL JAM ET AL )
Petitioners )
v ) No 17-1011
INTERNATIONAL FINANCE CORPORATION )
Respondent )
Pages 1 through 68
Place Washington DC
Date October 31 2018
HERITAGE REPORTING CORPORATION Official Reporters
1220 L Street NW Suite 206 Washington DC 20005
(202) 628-4888wwwhrccourtreporterscom
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1
IN THE SUPREME COURT OF THE UNITED STATES
BUDHA ISMAIL JAM ET AL )
Petitioners )
v ) No 17-1011
INTERNATIONAL FINANCE CORPORATION )
Respondent )
Washington DC
Wednesday October 31 2018
The above-entitled matter came on for
oral argument before the Supreme Court of the
United States at 1108 am
APPEARANCES
JEFFREY L FISHER ESQ Stanford California on
behalf of the Petitioners
JONATHAN ELLIS Assistant to the Solicitor General
Department of Justice Washington DC for the
United States as amicus curiae supporting the
Petitioners
DONALD B VERRILLI JR ESQ Washington DC on
behalf of the Respondent
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C O N T E N T S
ORAL ARGUMENT OF PAGE
JEFFREY L FISHER ESQ
On behalf of the Petitioners 3
ORAL ARGUMENT OF
JONATHAN ELLIS ESQ
For the United States as amicus
curiae supporting the Petitioners 20
ORAL ARGUMENT OF
DONALD B VERRILLI JR ESQ
On behalf of the Respondent 33
REBUTTAL ARGUMENT OF
JEFFREY L FISHER ESQ
On behalf of the Petitioners 63
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P R O C E E D I N G S
(1108 am)
CHIEF JUSTICE ROBERTS Well hear
argument next in Case 17-1011 Jam versus
International Finance Corporation
Mr Fisher
ORAL ARGUMENT OF JEFFREY L FISHER
ON BEHALF OF THE PETITIONERS
MR FISHER Mr Chief Justice and
may it please the Court
The IOIA gives international
organizations the same immunity from suit as
is enjoyed by foreign governments
The plain text of this provision
coupled with the structure of the IOIA and the
drafting history make clear that the same
immunity provision gives international
organizations the same immunity that foreign
governments are entitled to under the Foreign
Sovereign Immunity Act
Starting with the text my opponents
do not dispute that as a general rule when a
statutory provision refers to another body of
law especially as here in the present tense
that body of law is incorporated as of the
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moment of suit in any given case
And indeed they dont dispute -shy
JUSTICE BREYER So the hornbooks that
I looked up going back forever dont say
quite that They say thats true as long as
the changes are consistent with the purpose of
the adopting statute And indeed the Indian
case you know the word was now was it now
1934 or now later In the case we wrote last
term that Justice Gorsuch wrote the word was
monetary relief Does that mean as of the
past or does it mean what we call money relief
now I mean there are many cases like that
And here the word is is Does the
word is refer to the past is at the moment a
passage or later The two arguments that Id
like you to address that are opposite you are
one states do many things nations many many
things and so if we take immunity from them
for commercial things we leave lots of
immunity with them for those other things
But international organizations some
of them do only one thing lend money or the
equivalent And if we take immunity from them
thats the end of the immunity or close
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Thats one argument
The second is this If we decide
against you and weve made a mistake or along
comes a case where they really should have
immunity the President and the State
Department can give it to them
If we decide with you well if along
comes a case where they should enjoy the
immunity no nobody can do anything Did I
say that correctly Have you got the
argument -shy
MR FISHER Okay
JUSTICE BREYER -- or have I said it
backwards
MR FISHER No no no
JUSTICE BREYER Did I say it right
MR FISHER So I think you gave me
two things and then one before it which was
the statutory text
JUSTICE BREYER Yes Thats right
MR FISHER So let me start with the
statutory text Justice Breyer And the word
is in this Courts jurisprudence always
always means at the time of suit not at the
time the statute was passed And weve cited
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reams of cases to that effect My opponents
cite only one case on the other side thats an
Armed Career Criminal Act case Even there
is didnt mean at the time of suit it meant
at the time of the prior conviction So is
is on our side of this case
But in Carcieri which is the now
case the Indian case the Court went out of
its way in that opinion to say the insertion of
the word now takes us out of the ordinary
situation which is when the referenced law
applies at the time of suit And so you can
look at the Sutherland treatise which dates
back to 1904 on this principle
And look at its -- in -- in your own
case Justice Breyer I think if I was going to
give you one case it would be the Steamboat
versus Chase case we cite in our reply brief
Thats interpreting the Judiciary Act which
goes all the way back to the founding of
course and says where the common law is
competent to give a remedy such and such a
remedy is permissible
And in Steamboat the Court rejected
the exact argument the other side makes here
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which is first of all that the law had to be
incorporated at the time of suit and second of
all that there was something different about
the common law as to a statute at the time of
the enactment So all of the textual stuff is
in our favor
Now youve also asked me two other
questions and let me address them So starting
with the commercial activity exception as
applied to a group like the IFC when you
answer -- when you think of that question its
a question of how close you -- you put the lens
into whats going on here
So if you just take a foreign state as
the -- as the comparator here a foreign state
itself does all kinds of things Like you
said Justice Breyer they are not commercial
activity But a foreign state might have a
bank for example that does almost all
commercial activity
And so the same thing is true with
international organizations and let me answer
that in a few different steps So first of
all look at the sweep of international
organizations Many do things like regulation
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for example managing fisheries They do
things like dispute resolution law
enforcement Interpol They do scientific
research and agricultural research All of
those things are non-commercial activities on
the other side
Then you have the category the
special category of lending banks but even
within lending banks not all the things that
lending banks do are commercial activity The
IFC itself on its website talks about how it
gives advice to foreign governments about
legislation that ought to be passed regulating
financial transactions with the private sector
That is not probably commercial activity
And then even within lending
activities Justice Breyer just take the World
Bank it has five separate institutions Now
the IFC is on one side What the IFC does is
-- is loan money at market rates for profit for
private sector projects There are other
components of the World Bank and there are
other lending institutions that are
international organizations that give grants
for public works programs or that do the kind
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of spending that governments do And the
governments argued in past cases and we think
theyre probably right that that is not
commercial activity either
So when the other side says well
everything is commercial activity its no
different than the foreign state coming to this
and saying well if the Bank of Switzerland
does commercial activity then were -- were
stuck Well no no no its just how closely
you look at the problem
JUSTICE BREYER What about -- the
third was if we -- if we decide with you -- if
we decide against you see that would mean
there is sovereign immunity But there
shouldnt be in a particular case the State
Department can waive it and they have to be -shy
response
But if we decide for you and then
theres a case where there really shouldnt be
sovereign immunity or rather -- rather there
really should be I guess -- see thats what
Im getting mixed up You see if we decide
against you and they really should have
sovereign immunity in this case nobody can do
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anything So knowing nothing about the
future it seems a little safer the first
than the second
MR FISHER Well Im going to turn
back in a moment to the law and why that just
cant fit within the law but as to just the
policy question youre asking me even there -shy
JUSTICE BREYER Well you can look -shy
the reason I ask policy questions is because
the hornbook said yes apply it as of now as
long as its consistent with the purpose of the
statute And the purpose of the statute going
back to 1945 and the UN and everything was
to get these organizations to locate here
So its not just policy for policy
Its policy for purpose And purpose is tied
into how you interpret the language
MR FISHER So let me give you the
practical answer and then the purpose answer
On the practical answer
organizations especially if they want a
headquarter here or are headquartered here are
fully able to -- to lobby Congress or the
executive branch for special immunity And
there are many examples across international
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organizations
Take the Organization of American
States OAS And the solicitor general
discusses this in -- the organization in its
brief In 1994 it negotiated a special
immunity provision for itself to get more than
the ordinary restrictive form of immunity that
was available under the IOIA
So there are -- there are pathways
available and they have been used even more
so
Remember the United States as you
say has a -- has a sometimes principal
interest in these organizations So it is
quite responsive to them when they come and
say We need more than the IOIA gives us
But Justice Breyer let me turn back
to the -- the original purpose which was the
legislative history is quite clear on what the
purpose was As you say this was partly to
create a form of immunity to give some comfort
to these organizations But the question is
what form of immunity did they ask for and what
did they get
What they did is they came to Congress
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and said treat us like foreign governments
Give us immunity as Congress put it in a
Senate report of a governmental nature And
so what did Congress do It gave them exactly
what they asked for It said were going to
treat you as a default measure like a foreign
government
And remember the words of the
statute are same immunity Same immunity
as is enjoyed by federal governments So were
going to give you the same immunity subject to
the Presidents ability to just -- adjust it
and subject to your own ability and your own
treaty to negotiate for more and subject
thirdly to Congresss ability to give you some
immunity that you dont have even by way of
your own treaty
JUSTICE SOTOMAYOR Can we go to that
issue raised in part The special immunity I
know was even negotiated by the UN I think
in the 1990s and OAS and others but assume
that were in your regiment and Justice Breyer
made the assumption that if a lawsuit came to
us now under your theory and it was limited
immunity that the President or Congress could
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give immunity to the other side
I dont think so
JUSTICE BREYER No its the
opposite
JUSTICE SOTOMAYOR The opposite The
President cant decrease it correct So that
problem still remains with your -shy
MR FISHER Well -shy
JUSTICE SOTOMAYOR Yeah
MR FISHER -- I think it -- it may
or may not remain Justice Sotomayor
JUSTICE SOTOMAYOR Thats my -shy
MR FISHER Certainly we could -- we
would say we can go forward on this suit
because -- because there is no such law
If that law were passed youd have
two questions One is did Congress make it
retroactive And you look to Altmann to think
about how to judge the retroactivity of
immunity provisions And then if it were
retroactive whether that were permissible
But you know were a long way from
-- from that sort of a situation I think the
important thing going forward and this is I
think what the concern is on the other side
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is not so much about this case but about
incentives and policies going forward they
have every opportunity to negotiate in one form
or another or to procure a heightened form of
immunity
And Justice Sotomayor let me say one
more thing to you and Justice Breyer about you
know the idea of the executive branch getting
involved This is one of the problems I
submit with the other sides argument
Remember part of the goal of the FSIA
in the first section of the Act in Section 1602
is to get -- is to get the executive branch out
of the immunity business
Congress made the determination that
it was a bad idea to have every case turning on
individualized suggestions of immunity and
executive branch political policy And so the
other side by importing the common law of
1945 would reintroduce that problem into
international organization immunity in a way
that we dont think would be very good
politically or very workable in the courts
And Id hasten to add that even under
the rule of 1945 if the question were what
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does the executive branch think about any given
lawsuit or any given immunity for any given
type of suit that would just lead you right
back to the FSIA and it would lead you back to
the same conclusion that we submit to you here
So either pathway whether Justice
Breyer you start with the way youve always
looked at cases with the word is and the
word same and the reference canon that Ive
described and say all of those things lead you
to a time of suit rule or if you start with
the law of 1945 and say what was the law in
1945
Well Hoffman and -- in Ex Parte Peru
were clear that the law of 1945 was the
executive branch decides and its not for the
Court -- this is -- Im going to give you the
Courts own language -- its not for the Court
to give immunity where the executive branch has
not seen fit to give it
And if that were the test youd come
right back to where you -- where I started
here which is that the FSIA would control or
at the bare minimum the executive branch
position in this lawsuit on the type of
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immunity that ought to apply in this situation
would control So -shy
JUSTICE GORSUCH Mr Fisher if I can
pick up on Justice Breyers question The
reference canon I take all -- all of your
points but sometimes lets say we have a
statute that -- that refers to another statute
Usually we would look at the second
statute thats being incorporated as of the
time of -- of the adoption of the first
statute Right So if -- if this statute were
to say go look at Section 5 -shy
MR FISHER Right
JUSTICE GORSUCH -- we wouldnt look
at it the way its been subsequently amended
Wed look at it as it was originally enacted in
1945
Why isnt that -- that idea pertinent
here you know when we refer to a specific
law we dont take it to evolve over time
MR FISHER So for two reasons
Justice Gorsuch and one of them if youll
forgive me is going to be something you said
in the Alan Contoe opinion
JUSTICE GORSUCH I was afraid of
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that
(Laughter)
MR FISHER But for two reasons One
is Congress has a choice to make when it writes
legislation It can lock in a given rule by
setting a specific statutory provision and says
thats the rule we want just like if Congress
uses a particular word at the time of the
enactment the meaning of that word at the time
of enactment would be what Congress -- wed
assume Congress wanted
Or Congress could do something
different which is to say look were not
sure exactly of the metes and bounds of the
law Were just going to tie it to this other
area of law as a general matter And thats
what Congress did here It did the latter
So it took an area of law as a point
of reference and said Just use that as the
default rule and then adjust as necessary And
those are just two different pathways Congress
can go down
And they date as I said all the way
back to the First Judiciary Act there in the
Sutherland treatise all the way back to 1904
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and so theres just two different pathways
Congress can go down
And it makes perfect sense I think
in a situation like this especially where you
have a common law doctrine being referenced at
least a common law at the time and one that
was indeed not just any old common law
doctrine but one that was in a great deal of
flux at the time So it made every reason -shy
it made every good reason for Congress to have
a general reference not a specific one
And then the second reason Justice
Gorsuch is the one you mentioned sitting on
the Tenth Circuit which is that as time goes
by it becomes all the more stilted or
antiquated or even foolish sometimes to try to
answer questions in the modern day according to
what some bygone era doctrine would have
required and especially a bygone era doctrine
like this
If I understand the other sides
position correctly basically the question
theyre having -- they would want every federal
court to ask in these cases is what would the
Truman Administrations State Department have
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wanted to do in this case
And when you have things like this
which didnt even -- an organization that
didnt even exist at the time sometimes doing
activities that werent even contemplated at
the time things like sovereign wealth funds
which foreign sovereigns now engage in for
example who knows what the State Department
would have thought then
I think theres every reason then to
fall back on the reference canon And if I can
say one more thing before reserving my time if
you have any doubt about just the plain text
argument Ive given you I would urge you to
compare the text in Section 288a to the text -shy
Section 288d which has the exact dichotomy
that -- that Ive been discussing today
One subsection subsection (a) says
that the same immunity rules apply and
subsection (b) says that foreign officials -shy
Im sorry international organization officials
are entitled to absolute immunity
So this is yet another reason why if
the other side were correct and if Congress had
wanted to lay down the rule they did why would
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they not have just used the absolute immunity
language in subsection (b) of subsection (d)
and that indeed was the original draft of
this act that was discarded
So I could go on but Id rather save
the rest of my time for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Ellis
ORAL ARGUMENT OF JONATHAN ELLIS FOR
THE UNITED STATES AS AMICUS
CURIAE SUPPORTING THE PETITIONERS
MR ELLIS Mr Chief Justice and may
it please the Court
If I could Id just like to pick up
right where my friend left off Theres been a
lot of discussion so far this morning on the
text of Section 288a We agree that the
Petitioners have the far better reading of that
phrase in isolation but I think it really
settles the deal when you look at the entire
structure of the Act
The -- the IOIA doesnt just grant
immunity in Section 288a(b) but it provides a
whole host of immunities and it does it in two
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different ways In several different
provisions the Act sets a fixed rule of
immunity So archives are inviolable and
officers and employees of the organizations are
immune from suit with respect to their official
acts
And then there are a -- a host a
collection of three provisions that set the
immunity by reference to foreign governments
Theyre Section 288a(d) Section 288d(a) and
theres Section 288a(b) the one at issue here
Respondents concede that the
referential language in those other two
provisions do refer to the state of the law as
it is today
Its only the one thats at issue in
this case that they say was frozen We dont
see how that can be and thats particularly
true when you look at the drafting history that
my friend referred to
JUSTICE KAGAN Mr Ellis before you
get to that another part of the structure is
this provision that deals with presidential
authority and thats essentially a roll-back
authority of immunity
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Doesnt that make a lot more sense
that provision if you assume that Congress
meant for there to be absolute immunity In
other words the presidential authority is a
one-way ratchet The President can only under
this provision roll it back It cant increase
it
So to me if I -- if -- if -- if -shy
if the immunity -- if the immunity is less than
absolute you would think that they would have
given the presidential authority both ways
MR ELLIS Sure The reason that
argument doesnt work is because Section 288
the Presidents authority under that provision
doesnt just apply to Section 288a(b) It
applies to all of the immunities provided by
the IOIA
And as I was just describing some of
those are fixed immunity rules that are not
absolute And so for instance the officers
and employees of international organizations do
not receive diplomatic immunity That was a
big deal at the time
And -- and yet the President cant -shy
couldnt grant that up I think what that
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provision shows is that Congress wanted to
provide international organizations at most the
immunity from suit and other privileges of
immunities that foreign governments received
and not more so
And yet Respondents are here today
asking you for exactly that more immunity -shy
JUSTICE BREYER But on that -shy
MR ELLIS -- than foreign
governments receive
JUSTICE BREYER But look whatever
other things it refers to the provision allows
the President to waive immunity not to grant
immunity And your argument is they have
immunity Right
Do I have -- I get this backwards
This is the third time Ive got it backwards
(Laughter)
JUSTICE BREYER Sorry The provision
allows the person to be sued Is that right
MR ELLIS It does allow them to be
sued
JUSTICE BREYER Okay So I was
right I had it backwards the first time but
not the second not the third all right
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(Laughter)
JUSTICE BREYER It allows the
President to waive the immunity
MR ELLIS Thats right
JUSTICE BREYER Okay It doesnt
allow him to grant the immunity
MR ELLIS It does in a sense I
mean -shy
JUSTICE BREYER But the power to
waive the immunity at least in this section
amounts to nothing if they have no immunity
because for example all they do is lend
money
MR ELLIS So -- so a couple -shy
JUSTICE BREYER Thats -- thats -shy
and the other way it seems to work itself out
MR ELLIS Understood
JUSTICE BREYER Okay
MR ELLIS A couple responses to
that Your Honor
JUSTICE BREYER Thats the question
I think
MR ELLIS Glad to be able to address
that Number -- number one just to be clear
we -- they do have a great deal of immunity I
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mean foreign -- international organizations
and foreign states are presumptively immune
And I would agree with almost everything
that -- maybe everything that -- that my friend
said about why the commercial activity
exception even with regard to IFC and -- and
most -- more importantly with regard to the
vast sweep of these organizations is not going
to eliminate immunity
I would add one more is that even a
case like this we have serious doubts I
think -- we think in fact from what we know
this suit isnt going to be able to go forward
regardless of the answer to the question
presented because in addition to having -- to
being connected in some way to commercial
activity there must be a much stronger nexus
It must be based on commercial activity that
occurs in the United States
We think the Courts decision in OBB
makes clear that the way you apply that is to
ask Whats the gravamen of this suit Its
not enough to have some attenuated connection
but whats the gravamen
And the gravamen of this suit as we
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understand it is -- is tortious conduct that
occurred in India injuries that occurred in
India And we dont think -- we have serious
doubts that this is going to be able to go
forward even under restrictive immunity
And so we do not think that what were
doing is opening the floodgates here rather
that the sort of concerns that would be barred
-- cases that would be barred by Respondents
absolute rule of immunity and would be allowed
by ours are -- are sort of quintessential
domestic disputes contract disputes with your
contractor who renovated the building the slip
and fall at the -- at the organizations
headquarters or the driving accident on the
streets of New York and DC
JUSTICE SOTOMAYOR Do you have -- do
you have any idea about how many of these kinds
of organizations are headquartered in the
United States
MR ELLIS I think the numbers are in
the 20 to 30 range Theres about -- somewhere
80-some organizations that have been designated
for protection under IOIA and 20-some that have
-- I think are headquartered in the United
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States
JUSTICE SOTOMAYOR That are
commercial like this one
MR ELLIS No no no No I did
not -- no
JUSTICE SOTOMAYOR Were -shy
everybodys assuming -shy
MR ELLIS Right
JUSTICE SOTOMAYOR -- a floodgate
MR ELLIS Sure no There are -shy
JUSTICE SOTOMAYOR Including Justice
Breyer
MR ELLIS -- there are a number of
development banks but even then even -- even
the development banks even if you talk about
the World Bank its not clear that those
commercial activities are the sorts that the -shy
the FSIA captures with the commercial activity
exception Lending there is to sovereign
governments
And -- and as the Court has been -- as
lower courts have explained that sort of
commercial activity is not the sort that a
private party could engage in So its not the
sort that the commercial activity exception
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picks up
JUSTICE BREYER Well I -- I have the
IFC the IMF the World Bank the
Inter-American Development Bank the Asian
Development Bank the African Development Bank
the International Development Association So
I -shy
MR ELLIS Sure I -shy
JUSTICE BREYER -- Ive got -- thats
only half of them
MR ELLIS Thats -- that -- Im not
sure what percentage that is I want to point
out that some of those organizations -shy
JUSTICE BREYER There are a lot
MR ELLIS -- have their own immunity
provision in the -- in their charter And so
thats what we think -- if you look at the
history thats what -- thats how it has been
dealt with for organizations that require
absolute immunity Weve entered into
agreements
I would point again to the OAS
agreement where the State Department is just
crystal-clear that what OAS did in that
agreement was to negotiate absolute immunity
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because they thought thats what they needed in
order to put their headquarters here
JUSTICE KAGAN But Mister -shy
MR ELLIS We agreed to that and we
said But hey this is not our usual
practice Ordinarily we -- we afford only
restrictive immunity We point to the FSIA
JUSTICE KAGAN Mr Ellis I -- I
guess Im not sure I -- I quite understood what
you meant As to the core lending activities
of these multinational development banks in
other words making loans where private actors
would not make loans do you have a view as to
whether that counts as a commercial activity or
not
Did you say that that would not count
as a commercial activity because theyre making
loans that the -- that the private market would
not make
MR ELLIS No Im -- Im not saying
that its -- that its enough that theyre
making loans that a -- that a private -- they
couldnt find a private party to provide Im
saying if the nature of the loan is such that
its -- its not the sort of transaction that a
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private party would enter into so think about
the IMF that grants -- that lends to sovereigns
and they do so on the requirement that the
sovereign enact certain restrictions -shy
regulations and change their -- their -- their
laws in order to assure that they dont need
the money again
That is the sort of thing thats been
held by lower courts and weve advocated is
not a commercial activity Thats just not the
sort of transaction that a private party can
enter -- enter into Its not just that a
private party didnt Its that -- that no one
-- thats not something that you can do
Thats a sovereign act
JUSTICE BREYER But can you give
me -shy
MR ELLIS Or a quasi-sovereign act
JUSTICE BREYER -- anything to assure
me because when I looked through this list I
thought that there were development banks like
the World Bank which is a pretty big deal as
well as in Asia in Africa were trying to
encourage development all over the world and
suddenly by removing the sovereign immunity
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because the plaintiff will claim this is a
commercial activity
MR ELLIS So -- so -shy
JUSTICE BREYER And youre not
denying it
MR ELLIS And so -shy
JUSTICE BREYER So what is the
assurance that the government can give us that
this isnt going to lead to a lot of lawsuits
and this isnt going to interfere with perhaps
activity that the United States traditionally
has been very much in favor of
MR ELLIS Absolutely Let me -- let
me give you a couple things I think weve
given you a number of -- of points already this
morning as to why we dont think the floodgates
are going to open
If -- if theres one more Ill say
just look at the -- the charter of these
organizations Look at the IFCs charter
They already waive suit waive immunity for
suits going directly to their core activities
They -- they in fact indicate that they -shy
they need to waive suit in these suits
And so I -- I think when youre
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talking about what are the suits that are going
to come up under commercial activity many of
them are already going forward because the IFC
and the World Bank and others have waived their
immunity
JUSTICE GINSBURG And they need to
because
MR ELLIS They need to because no
ones going to enter into a financial
transaction with them if they -- they know they
cant sue if it -- if it goes south
The other thing -- I want to also
focus the Court on the -- on the suits that we
know are not going to go forward on the
absolute immunity side Were talking about
suits by -- by US citizens and residents
about domestic conduct and theyre seeking
redress in US courts
These are the suits that foreign
governments are -- are able to be sued on and
dont have immunity And we dont see any
reason why international organizations should
not also be subject to suit in those
circumstances and we think thats exactly what
the Congress was trying to do when it enacted
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Section 288 in 1945
If there are no -- no further
questions we ask the Court to reverse
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Verrilli
ORAL ARGUMENT OF DONALD B VERRILLI
ON BEHALF OF THE RESPONDENT
MR VERRILLI Thank you Mr Chief
Justice and may it please the Court
The IOIA prescribes a standard of
virtual absolute immunity that is fixed and not
evolving We know that because the text
incorporated common law terms that had a
settled meaning of virtually absolute immunity
and because a fixed standard makes the most
sense in light of the statutory context and
purpose
Now the reason that Congress enacted
the IOIA was to fulfill treaty obligations that
committed us to provide virtually absolute
immunity Those treaty obligations did not
commit us to treat international organizations
the same as foreign states were treated They
committed us to the substantive standard of
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virtually absolute immunity
And therefore if -- if -- if the
language in section 288b is interpreted in the
way my friends on the other side suggest -shy
JUSTICE SOTOMAYOR So why didnt
Congress say that the way it did in the other
provisions of this Act And if it intended
that in no change it could have said it and
given the very exception it gave which is that
the President or the executive could reduce
immunity which was the standard at the time
MR VERRILLI So let me start with
the basic question We think if the Court
applies the normal rules of construction that
it applies in statutory interpretation cases
that Congress did say that it was providing
virtually absolute immunity
And I think a case in particular that
I would point the Court to is the Nader
decision 527 US and in particular to page
21 of the Nader decision Thats a case -shy
that case of course was about whether mail
fraud and wire fraud incorporated a materiality
standard This is an opinion by Chief Justice
Rehnquist unanimous for the Court on this
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point The Court said first we look to the
text of course and when looking to the text
if we -- if -- and in looking to the text
based solely on a natural reading of the full
text materiality wouldnt be an element of the
fraud statute
And then the Court says But that
does not end the inquiry because in
interpreting statutory language theres a
necessary second step And this is -- Im
coming to the point that I think governs here
which is that it is a well-established rule of
construction a rule of construction that
where Congress uses terms that have accumulated
settled meaning under the common law a court
must infer must infer unless the statute
dictates otherwise that Congress means to
incorporate the established meaning of those
terms Now the -shy
JUSTICE GINSBURG What about the
argument that there wasnt an established
meaning in -- what was it -- 1945 that it -shy
the -- the status of the immunity was in flux
It had been absolute but then we were going
over -- the State Department was advising the
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court whether immunity should be given in a
particular case
MR VERRILLI Theres a bit of a
suggestion to that effect in the brief of the
United States Your Honor but I would
respectfully suggest that is not a fair
characterization of where things stood in 1945
at all
It is true that some people within the
State Department in 1945 thought that immunity
should move to a more restrictive standard but
the Justice Department would not even advance
that standard in this Court at the request of
the State Department and this Court did not
describe the immunity as being in flux This
Court said the standard was virtually absolute
immunity
If one looks even in 1952 at the Tate
Letter the Tate Letter didnt say the law was
in flux in the United States It said the
United States was hewing to the standard of
virtually absolute immunity but other
countries were moving towards a standard of
restrictive immunity and therefore we ought
to reconsider what were doing
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So I just -- I mean the Court can
read these materials for -- for itself but I
just respectfully do not think its a fair
consideration of where things stood in 1945 at
all
And then if I could Id like to pick
up on a related point that came up in the brief
of the United States Its another statement
in the brief of the United States and it came
up in argument today that look this really
isnt a problem because for those organizations
that need immunity that goes beyond the -- the
restrictive immunity weve always understood
that they get -- they can go get a special
statute and theyve gone and gotten special
statutes
The United States says on page 27 of
its brief precisely because the IOIA didnt
provide that level of immunity they give these
three examples IMF World Trade Organization
and Organization of American States
Id like to take a minute and go
through each of them because it doesnt hold up
with respect to each of them With respect to
the IMF for example it is true the IMF you
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know it has a -- has a treaty There was a
statute that gave that treaty effect under US
law which ended up providing for absolute
immunity
But it cant possibly be that that was
undertaken based on any sense that the IOIA
didnt provide that level of immunity because
the IMF statute was enacted in July of 1945
and the IOIA wasnt enacted until five months
later So it cant possibly substantiate what
the government was saying
If one looks at the WTO treaty it is
true with respect to that treaty that it
committed us to a very wide scope of
immunities It said that the United -- that
the United States will commit to providing all
or virtually all of the immunities provided
under a whole different UN convention the
UN convention on specialized agencies
Now that convention has all kinds of
tax immunities and property immunities that go
way beyond what the IOIA provides So of
course they needed another statute in order to
make those treaty commitments That doesnt
prove anything about whether anybody thought
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that the IOIA failed to provide virtually
absolute immunity
In fact the historical evidence I
think really to the extent it points in any
direction it points very much more in our
direction And the best way to see that is
with respect to the way the United Nations was
treated under -- by the executive branch in
this country
Now we signed the UN charter in
1945 committed us to provide what the charter
describes as the necessary immunities Then
the UN Convention on Immunities was
negotiated in 1946 which said that the UN
should get virtually absolute immunity Not
the same immunity as foreign states virtually
absolute immunity
Now the United States did not ratify
that convention until 1970 So on the theory
that my friends on the other side have from
the moment of the Tate Letter in 1952 when
foreign state immunity became restrictive and
not virtually absolute anymore we were in
violation of the commitment we made in the UN
charter
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Now if that was true you would
certainly expect the State Department A to
address it in the Tate Letter but theres
nothing in there Its a classic case of the
dog that didnt bark And B you would expect
them to try to do something about it like get
the UN Convention ratified immediately
because otherwise we were going to be out of -shy
out of compliance with our obligations to the
granddaddy of all international organizations
the United Nations
But theres not a -- from 1952 until
the ratification of the Convention in 1970 you
cant find one word by anybody in the executive
branch ever saying that What you do find -shy
JUSTICE SOTOMAYOR What commercial
activities was the UN doing at that time
MR VERRILLI Well -shy
JUSTICE SOTOMAYOR I know today its
a very different organization but its not
clear to me that there was much going on that
was commercial at its initial stages
MR VERRILLI I take that point Your
Honor but what I would say in response is that
there was a very great deal of sensitivity
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about the whole package of -- of immunities
that were available to the UN and its
diplomats and its -- and its workers
And there was concern all along from
1952 to 1970 that -- that -- where the
executive was urging Congress to ratify the
convention but the only things ever mentioned
were the diplomats -- immunities for diplomatic
individuals
And then when you get to 1970 and you
actually look at the Senate report accompanying
the ratification this was not in our brief
but its at page 31 of the brief of the -- of
the scholars who filed the brief in support of
us It quotes the Senate report from 1970 and
what the Senate report says is were not
granting the UN any -- the UN as an
organization any immunity it didnt already
have under the IOIA
So as late as 1970 it was just quite
clear that everybody understood the IOIA
conferred virtually absolute immunity And of
course thats because it was -- it was enacted
to comply with our treaty obligations
It wasnt enacted to make sure that
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come what may that international organizations
would get treated the same as foreign states
That is -- you know thats the best way to
think about it is its just a completely
anachronistic way of thinking about the body of
materials in front of you
JUSTICE KAGAN But even what you just
said Mr Verrilli it wasnt enacted to make
sure that foreign organizations would get
treated the same as foreign states
I mean thats exactly what the
language of the thing says
MR VERRILLI Well so I guess a
couple of things about that I think the right
way to think about the language Justice Kagan
is that it was a means to an end in 1945 when
it was enacted
It was not the end in itself to assure
equivalence of treatment come what may It was
the means by which Congress ensured that it
would fulfill its treaty commitments which were
-- and those treaty commitments were to provide
virtually absolute immunity
And we know the Senate report says
were enacting this provision to fulfill our
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treaty commitments And our treaty
commitments again were not to treat them the
same They were to provide virtually absolute
immunity So -shy
JUSTICE KAGAN Do you think it was -shy
you answered Justice Ginsburgs questions about
how far we were from the Tate Letter in 1945
but do you think it was inconceivable to
Congress that the common law of immunity would
change
MR VERRILLI Well I -- I -- I cant
say that it would be inconceivable to anybody
but what I can say is if one looks at the
debates surrounding the passage of the IOIA
is once again its a dog that didnt bark
You cant find a single person
anywhere saying anything remotely like the
proposition that we need to adopt a standard
that will evolve over time because we have a
concern that foreign sovereign immunity law
will evolve over time
That just was not any part of
anybodys thinking at that time They were
trying -- you have to remember this is coming
out of the Bretten Woods system We have
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Bretten Woods We set up all these
organizations
They have a -- they have a desperate
mission in front of them to try to rebuild the
world -- the world after the carnage of World
War II Theres a lot of pressure on Congress
to get these organizations up and going and
give them the immunity we promised them so they
can go out and do their work Thats what led
to the enactment of the IOIA
It was none of these other things as
I said I really think if you look at the
historical materials its the -- the gloss
that my friends on the other side are trying to
put on it is completely anachronistic
Theyre taking a different concept
that theyve come up with now and trying to
retrofit the historical facts to match it and
it just isnt right
JUSTICE BREYER Is that -- is that -shy
the Russians at that time 45 and so forth
were putting all these businesses into state
entities So my guess is there were -- there
were a number of cases and what I thought I
heard Mr Fisher say is if we really go back
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and look at this well see that the status quo
before this passed was not absolute immunity
but the status quo was a kind of mess where
sometimes the State Department would say give
them immunity and sometimes the State
Department would say not
Now what is the actual situation as
far as youve been able to find it
MR VERRILLI Well I dont -shy
respectfully with respect to my friends on the
other side I dont think thats a fair
characterization of the historical materials
JUSTICE GINSBURG Thats the same -shy
the answer you gave to me is the answer you
would give to Justice Breyer
MR VERRILLI Yes
JUSTICE GINSBURG Same question
MR VERRILLI Yes I mean its just
not there I mean look at what this Courts
cases said This Courts cases didnt say
anything like that
The -- the -- the governments briefs
to this Court didnt say anything like that
When this Court has looked back on the law in
Verlinden and in Samantar it hadnt said
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anything like that It said the standard was a
common law standard of virtually absolute
immunity
And thats in fact how the Tate
Letter describes it too And then as a process
matter -shy
JUSTICE BREYER Okay I got it
MR VERRILLI -- my friends on the
other side have made this argument that well
our position would also require you to go back
to the process of the State Department making
an ad hoc case-by-case determination but
thats wrong too
And thats clear on the face of the
statute that its wrong And the reason -- and
-- and thats right in Section 288 This
creates an entirely different mechanism
What the -- what the IOIA says is that
-- that the President shall have the authority
under executive order once Congress has
enacted a statute to grant an international
organization the privileges and immunities
And if you look at the face of the
statute its obvious that they are granted on
a categorical basis in gross by an executive
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order not on a case-by-case basis by the State
Department when -- when a lawsuit is -- or when
a -- when a lawsuit is filed
And then similarly in terms of the
Presidents authority as to an executive order
to reduce or eliminate the -- the immunity of
an international organization that -- its -shy
again its completely different than the
situation that -- than the common law process
at work So obviously Congress made a
judgment that it was going to put a different
structure and system in place
And the fact that Congress did that I
do say -- I do think quite clearly presupposes
that theres a -- the existence of a
substantive standard being prescribed And the
substantive standard as I said is virtually
absolute immunity
And then in terms of the structural
indicators in the statutory text going back to
a question you asked Justice Sotomayor I
really think the most telling one to -- to
show you I think why my friends on the other
sides case is completely anachronistic and
were correct -- is Section 288f which you can
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find at page 6a of the appendix to the blue
brief
That provision says that the
privileges exemptions and immunities of
international organizations and then of -- of
members and employees et cetera shall be
granted notwithstanding the fact that similar
privileges exemptions and immunities granted
to a foreign government et cetera et cetera
may be conditioned upon the existence of
reciprocity by that foreign government
So right there in the text it
decouples the treatment of international
organizations from the treatment of foreign
states Even in a situation in which the
United States would not grant the full range of
virtually absolute immunity because it wasnt
being -- receiving reciprocal treatment this
statute says the international organization
gets it So -shy
JUSTICE GINSBURG How do you deal
with the argument that we just heard that we
can compare 288a on the one hand which -shy
which keeps the international organizations in
tune with foreign sovereigns and 288 -- was it
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b and d
MR VERRILLI Yes I do think that
the -- the differences break down into two
categories Your Honor There -- some of the
provisions do prescribe fixed standards
Thats true But those fixed standards as we
explained in our brief or at least tried to
are always situations in which the IOIA is
conferring a narrower set of immunities on -shy
on diplomats and individuals than the common
law would have at the time
So incorporation of the standard in
the way this 288a(b) did wouldnt accomplish
the objective there because there was -- they
were quite consciously trying to narrow the
overall scope of immunities and not give the
individuals who worked at these organizations
the same full treatment that diplomats got who
-- from foreign states
Now the second subcategory are the
provisions where the -- the statute says that
their -- the treatment shall be the same But
theres two things about that that are
significant
One is it says they shall be the same
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as under another statutory provision And as
we said we think thats vitally important
here We think its quite clear that in
addition to Justice Breyers points about the
reference canon that the reference canon
applies when one statute incorporates another
It doesnt apply when one statute incorporates
the common law And here they were
incorporating statutes
And if you look at those provisions
anyway theyre basically just instructions to
the executive branch when do you fingerprint
the people when theyre coming in What do you
do about that -- this detail or that detail
They dont go to the heart of the
matter at all And the heart of the matter
here is the immunity being conferred on these
international organizations
I just want to make a point about that
and then if I could talk about the
consequences that will ensue I think if we go
down the path that my friends on the other side
are suggesting
I think this is a critical point I
just want to make sure its clear Another
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reason why you shouldnt draw this equivalence
-- and it cant be that Congress really
intended to draw an equivalence between foreign
states and international organizations such
that they would just move in tandem no matter
what -- is that immunity is granted for
different reasons
The reason you give an international
organization immunity is a functional reason
not a status reason Its not about according
the appropriate respect to the sovereigns
because international organizations arent
sovereigns Theyre separate juridical
persons And whats quite clear -- its clear
from the U -- the San Francisco report on the
foundation of the UN its clear from the
Senate report in 1945 its clear from all the
commentators that we discussed in our brief
its clear from the Restatement of Foreign
Relations which weve cited in our brief that
you grant immunity to international
organizations so that they can carry out their
functions effectively And -- and just take -shy
let me take a minute and kind of elaborate on
that because I think its critical
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Remember these are -shy
CHIEF JUSTICE ROBERTS If you dont
mind Im afraid Im about five minutes behind
you here but going -- going back to your point
on 288f you said its there theyre decoupling
the international organizations and the foreign
sovereigns But as I go back and read it
its simply because the -- the foreign
sovereigns have the capability to use
reciprocity and the foreign -- and the
multi-country organizations do not
I dont -- I mean thats the
difference theyre drawing there not something
between the scope of the actual immunities
MR VERRILLI Well I -- well the
way I read it Mr Chief Justice is what -shy
what theyre doing there is saying even in a
situation in which the United States concludes
that it wont afford a foreign sovereign the
full virtually absolute immunity because of
reciprocity in other words were not getting
it back from them even in that situation an
international organization of -- where those
sovereigns are members will still receive the
full level of immunity
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And so I think what that tells us is
that what Congress was trying to do in this
statute overall was prescribe a fixed
substantive standard not a floating standard
where the two things move in tandem So -- and
I -- I do think it supports that
And if I could just go back to the
functional point remember these are
collective bodies and members come together
they make -- they -- they take resources from
each of their own countries They put them
into these organizations They make collective
decisions about how to deploy those resources
And the point of the immunity here is
so that the courts of any country but
especially the host country which for the most
important organizations are going to be here in
the United States cant override the
collective judgments that they make about how
their resources would be deployed and what
conditions they ought to impose et cetera by
the intervention of domestic law in US courts
and cant redirect the funds that are put into
these organizations to pay massive class action
tort judgments because of course the member
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countries are contributing this money because
they believe its going to be put to the use
that the -- for example the development bank
the development bank decides it should be put
to not to pay massive tort judgments
And I think one place you see this
very clearly if you look at the report of the
San Francisco conference about the founding of
the UN the State Departments -shy
Departments response coming -- report coming
out of that conference specifically says this
It says of course the United Nations cant be
subject to the jurisdiction of any one state or
its courts
And its for exactly this reason And
the same thing is true generally Thats why
you give it not for functional reasons -- I
mean excuse me not for reasons of status but
for functional reasons
And I think a key -- another key
reason why you shouldnt be thinking about this
as a standard that evolves evolves now and
over time is that those functional reasons
dont evolve now and over time
CHIEF JUSTICE ROBERTS Well what
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about the point that most of the concerns you
have are going to be dealt with by the
requirement of a nexus to activity in the
United States as opposed to simply abroad
where the projects are funded
MR VERRILLI Yes I was gratified
to hear the United States say that but -- and
-- but I could just -- Ill answer Your Honors
question directly but I want to broaden it out
a little bit because I think what essentially
the United States is saying here is look the
statute leaves one with no choice but to apply
restrictive principles of immunity Youve got
to jump off that cliff but dont worry it
will be a soft landing because the FSIA will
take care of a lot of these problems
And I guess what I would say about
that is in the unlikely event you dont agree
with me I -shy
(Laughter)
MR VERRILLI -- I hope theyre
right But theres no guarantee that theyre
right
JUSTICE BREYER Are the -- are the
lending decisions which may be fairly detailed
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and may include dozens of conditions made
within the United States
MR VERRILLI Well yes I think
thats a big part of the problem and -shy
JUSTICE BREYER Is there -- are there
lawsuits that could say that there was
negligence in determining in a different
country who the persons were or the conditions
under which the money would be spent Is that
an American lawsuit saying what youve done
here is commit the act of negligence or failure
to be a fiduciary here
MR VERRILLI Thats this lawsuit
Thats this lawsuit Justice Breyer Thats
exactly what theyre alleging
CHIEF JUSTICE ROBERTS Well but I
mean is that consistent with our opinion in
the OBB case which I think -- if the complaint
is based the gravamen of the complaint not
specific steps along the way and that was the
issue we dealt with in that case
And I appreciate the fact that its
you know to some extent dependent on the facts
and particular allegations but it would seem
to me to require a lot more than simply the
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specific decisions I think where -- wheres
the gravamen or gravamen however you say it
with whats going on here
MR VERRILLI Well we would
certainly say its India of course
CHIEF JUSTICE ROBERTS Yeah
MR VERRILLI And if -- if we have to
defend ourselves on that basis we will But I
-- but I -- I think it -- it understates the
real concrete risk here And what Id like to
do to illustrate that if I could is first
talk about the organizations that are going to
be exposed in a way that they wouldnt be under
the law
And as Justice Breyer indicated
earlier its important to remember this has
been the law in the DC Circuit for decades
and theres -- and people have ordered their
affairs based on the assumption that there was
virtually absolute immunity
But with respect -- but with respect
to the consequences and the groups affected and
then the types of effects With respect to the
groups affected youve got entities like us
the multilateral development banks And
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Justice Breyers identified many of them
Now the -- the main ones are here
here in Washington DC and theyre making
their decisions here and I think critically
too there are billions of dollars of assets
here
Now were going to make the OBB
argument for sure and I hope we win if we have
to make the argument I hope we win But who
knows how courts are going to come out on that
issue
Were going to have a lot of fighting
about that There are probably going to be
matters of degree Theres certainly going to
be significant disincentives arising out of
that uncertainty
Theres a whole another group of
entities that unlike the banks at least have
articles of agreement where we can try and fall
back on those for alternative arguments of
immunity where their immunity depends entirely
on the statutory grant the International
Committee of the Red Cross the World Health
Organization the fund to fight -- the global
fund to fight AIDS and tuberculosis and
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malaria
They are all entirely dependent on the
IOIA for their immunities and those immunities
are drastically different after this And then
we do have the issue I think with some
organizations that we may even actually now be
out of our -- out of compliance with our treaty
commitments
Now whats going to happen Heres
what I think is going to happen and I think
this lawsuit helps you see it
Now the way -- the basis of this
lawsuit is the following IFC when it loans
money here its loaning money in -- in parts
of the world where private capital wont go
unless we go in there
And very often they have un-developed
legal systems and they certainly dont have
robust environmental protections or labor
protections So what the IFC has done is lien
into those put those kinds of environmental
standards and labor standards into its
agreements saying you want this money to do
this development project these are the
standards that youve got to live up to
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And -- and this lawsuit is that -shy
that the entity that we loan this money to
didnt live up to the standards and its our
fault And so were being sued here
Well its going to create -- if that
kind of a suit can go forward and hopefully it
wont be able to Mr Chief Justice but if it
can its certainly going to create an
extraordinary disincentive for organizations
like ours to lien into those kinds of standards
because were going to be hoist by our own
petard
Now weve also got a robust internal
accountability mechanism where if people think
something has gone wrong on one of our
projects they can come to us and they can say
-- they can say look theres a problem here
And they -- and we investigate We take
internal remedial measures if we find theres a
problem
Well you know the factual basis for
the lawsuit is the report of our internal
accountability process
So if they can just grab that and take
it into court and make it the basis for a class
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action tort lawsuit in which they can make a
claim for all this money its going to create
a powerful disincentive for us not to engage in
that kind of self-policing activity
And I would submit that you know
even if things ultimately work themselves out
under the FSIA and I hope they -- I hope we
dont have to deal with that but even if we
do its going to take a very long time There
are going to be a lot of difficult cases at the
margin There are going to be very serious
disincentives immediately
And conversely you know were a big
fat target here These organizations have lots
of money And of course foreign plaintiffs
want to sue here They can bring a class
action They get liberal discovery They can
get punitive damages They get all of these
advantages by suing here
So instead of suing the person that
actually injured them the power plant in
India they come here and sue us
And I really think what you are going
to see here is that this is just going to
become another version of the sorts of
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foreign-cubed lawsuits that the Court has been
concerned about under the Alien Tort Statute
where the international organization is just
going to be subbed in for the foreign defendant
and its going to be subbed in in a situation
where were going to have a very significant
pile of money
And if I could just close with this
thought -- Im just going to pick up on Justice
Breyers thought -- the law in the District of
Columbia where virtually all these
organizations have been housed are
headquartered has been virtually absent
immunity under DC circuit law for decades
Thats the standard everybody has been
operating on
Nobodys suggested that anything has
gone wrong under this statute that there are
any deleterious policy consequences that the
interests of the United States are adversely
affected in any way In fact if you look at
the amicus brief from the former Secretaries of
Treasury and State they think that the policy
of the government arguing now is going to
disrupt the United States ability to function
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effectively with these organizations
It has all been fine And -- but
theyre asking you essentially to repeat a
metaphor to jump off a cliff And hopefully
it will be a soft landing But we dont know
that And it could easily result in a lot of
disruption to the good work that these
organizations do
And I guess what I would suggest is
that if thats going to happen it ought to
happen through legislation Congress can look
at this Congress can change the law if it
wants to But this has been the law for a very
long time There is no evidence that it has
done anything other than work well
And therefore I think the Court
should affirm the DC Circuit Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Four minutes Mr Fisher
REBUTTAL ARGUMENT OF JEFFREY L FISHER
ON BEHALF OF THE PETITIONERS
MR FISHER Thank you Id like to
make four points and Id like to start with the
text of the statute itself and simply say when
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Mr Verrilli talks about the Neder Doctrine and
the Common Law Doctrine that you look at the
term a terms meaning at the time of
enactment Hes mixing apples and oranges
And I think all the citations in our
reply brief should make it absolutely clear
that theres a doctrine on the one hand that
talks about incorporating a body of law and
theres a doctrine on the other hand about
giving meaning to a specific term Were in
the former camp here
And as to the point about whether the
common law was evolving at the time two
things Well stand on the papers as to the
fact that it was somewhat in flux
But the more important point is even
if it werent in flux it wouldnt matter one
wit because the other side is making a
sweeping proposition which is any general
reference to common law is fixed in time
That would disrupt any number of
federal statutory regimes from the Federal
Tort Claims Act enacted the year after this
statute the Equal Access to Justice Act the
federal governments piracy statute Federal
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Rule of Evidence 501 I could go on and on
with federal statutory regimes that reference
the common law in exactly the same way the
statute does here
The Civil Rights Act of 1866 if you
want one more All of those would come out the
other way from this Courts jurisprudence and
from all the understanding if the other side is
right about statutory interpretation
So I think the only thing the other
side has is they have a bunch of policy points
to make for this Court
Now we dont think they should
control but let me answer them So first as
to our treaty obligations So one about at the
moment of enactment My friend kept saying
that there were various agreements in place
that required virtually absolute immunity
None of the agreements use those
words Instead what those agreements said is
that certain organizations were entitled to
immunity to allow them to perform their
necessary functions Thats a very different
thing than absolute immunity
And its very different because none
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of the organizations involved were performing
Justice Sotomayor commercial activities that
were essential to their core functions not the
UN not any of the other organizations
So we werent in breach of any treaty
rights And if you have any doubt on that I
would urge you to look to the federal
governments position then and now Its not
just a brief filed in this Court
It is the position that four different
Presidential Administrations have taken The
Carter Administration right after the FSIA was
passed the George H W Bush Administration
the Clinton Administration and now the Trump
Administration have all consistently held that
the FSIA rules are incorporated into the FSIA
Next on the floodgates concern I
explained earlier and I hope you will think
about the fact that while the core activities
of the IFC might be commercial activity not
all of the IFCs activities are and certainly
not all the activities of international
organizations are
But let me add one more thing My
friend talked about big lawsuits of ruinous
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liability Well theres two very easy ways to
control that
One is to the extent any claims are
on contracts they can write their own
contracts and negotiate their own contracts
As the Solicitor General points out they can
even deal with third-party beneficiaries in
their contracts if they choose
Secondly as to tort claims they can
and in fact commonly do indemnify themselves
against tort lawsuits In this very case
their agreement indemnifies them against any
judgment and all legal fees
So these organizations have every
manner of method to deal with any potential
liability And in fact they are which sort
of belies the suggestion that they think
theyre absolutely immune from lawsuit
Finally let me say one thing about
the so-called foreign cubed problem or the
facts of this case Now obviously we think
that we would satisfy the gravamen test They
have never made that argument And if they
want to make it we can -- we can have that
conversation in the lower courts
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But bear in mind what youre being
asked to do in this case is to announce a
categorical rule for all cases dealing with
international organizations
So my friend in the Solicitor
Generals Office talked about just regular tort
slip and fall cases and the like in the United
States Let me give you one other thing to
think about
Some international organizations
actually do their work in the United States
The border cooperation -- the Border
Environmental Cooperation Commission does
wastewater treatment plants in Texas and
California
I cant think of any reason why they
would be immune from those infrastructure
projects in a way that no private business or
public government would be
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1206 pm the case
was submitted)
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69Official - Subject to Review
1 392151723 4122 4223 433
452 462 4718 4817 5220 57
allegations [1] 5624
alleging [1] 5615 B
1108 [2] 115 32 20 651824 allow [3] 2321 246 6522 back [22] 44 61420 10513 11
1206 [1] 6822 Absolutely [3] 3113 646 6718 allowed [1] 2610 17 154422 172425 1911 226
1602 [1] 1412 Access [1] 6424 allows [3] 231220 242 4425 4524 4610 4720 5247
17-1011 [1] 34 accident [1] 2615 almost [2] 719 253 22 537 5820
1866 [1] 655 accompanying [1] 4111 already [4] 311521 323 4118 backwards [4] 514 23161724
1904 [2] 614 1725 accomplish [1] 4913 alternative [1] 5820 bad [1] 1416
1934 [1] 49 according [2] 1817 5110 Altmann [1] 1318 bank [13] 719 81822 98 2716
1945 [17] 1013 142025 151213 accountability [2] 601423 amended [1] 1615 283455 3022 324 5434
15 1617 331 3522 36710 374 accumulated [1] 3514 American [3] 112 3721 5610 banks [9] 88910 271415 2911
388 3911 4216 437 5117 across [1] 1025 amicus [4] 122 27 2011 6222 3021 5725 5818
1946 [1] 3914 Act [15] 320 6319 1412 1724 20 amounts [1] 2411 bare [1] 1524
1952 [4] 3618 3921 4012 415 422 212 301518 347 5611 64 anachronistic [3] 425 4415 47 bark [2] 405 4315
1970 [6] 3919 4013 415101520 2324 655 24 barred [2] 2689
1990s [1] 1221 action [3] 5324 61117 announce [1] 682 based [5] 2518 354 386 5619
1994 [1] 115 activities [11] 8517 195 2717 another [13] 323 144 167 1923 5719
2 2910 3122 4017 662192122 2122 378 3823 501625 5420 basic [1] 3413
20 [2] 28 2622
20-some [1] 2624
2018 [1] 111
21 [1] 3421
27 [1] 3717
288 [4] 2213 331 4616 4825
288a [3] 1915 2018 4823
288a(b [4] 2024 2111 2215 49
13
288a(d [1] 2110
288b [1] 343
288d [1] 1916
288d(a [1] 2110
288f [2] 4725 525
activity [23] 791820 81015 94
69 2551718 27182325 2914
17 3010 31211 322 553 614
6620
actors [1] 2912
acts [1] 216
actual [2] 457 5214
actually [4] 4111 596 6121 68
11
ad [1] 4612
add [3] 1424 2510 6624
addition [2] 2515 504
address [4] 417 78 2423 403
adjust [2] 1212 1720
Administration [4] 66121314
5817 6125
answer [11] 71122 10191920
1817 2514 451414 558 6514
answered [1] 436
antiquated [1] 1816
anybody [3] 3825 4014 4312
anybodys [1] 4323
anyway [1] 5011
APPEARANCES [1] 117
appendix [1] 481
apples [1] 644
applied [1] 710
applies [5] 612 2216 341415 50
6
apply [7] 1010 161 1919 2215
basically [2] 1822 5011
basis [6] 4625 471 578 5912 60
2125
bear [1] 681
became [1] 3922
become [1] 6125
becomes [1] 1815
behalf [8] 11925 241114 38 33
8 6322
behind [1] 523
belies [1] 6717
believe [1] 542
beneficiaries [1] 677
best [2] 396 423
better [1] 2019
3 15 2521 507 5512 between [2] 513 5214
3 [1] 24 Administrations [1] 1825 appreciate [1] 5622 beyond [2] 3712 3822
30 [1] 2622 Administrations [1] 6611 appropriate [1] 5111 big [5] 2223 3022 564 6113 66
31 [2] 111 4113 adopt [1] 4318 archives [1] 213 25
33 [1] 211 adopting [1] 47 area [2] 171618 billions [1] 585
4 adoption [1] 1610
advance [1] 3612
arent [1] 5112
argued [1] 92
bit [2] 363 5510
blue [1] 481
45 [1] 4421 advantages [1] 6119 arguing [1] 6224 bodies [1] 539
5 5 [1] 1612
501 [1] 651
527 [1] 3420
adversely [1] 6220
advice [1] 812
advising [1] 3525
advocated [1] 309
affairs [1] 5719
argument [24] 114 225912 34
7 5111 625 1410 1914 2010
2213 2314 337 3521 3710 46
9 4822 5889 6321 6723
arguments [2] 416 5820
body [4] 32325 425 648
border [2] 681212
both [1] 2211
bounds [1] 1714
branch [11] 1024 1481318 151
6 affected [3] 572224 6221 arising [1] 5815 161924 398 4015 5012
63 [1] 214 affirm [1] 6317 Armed [1] 63 breach [1] 665
6a [1] 481 afford [2] 296 5219 articles [1] 5819 break [1] 493
8 afraid [2] 1625 523
Africa [1] 3023
Asia [1] 3023
Asian [1] 284
Bretten [2] 4325 441
BREYER [40] 43 513162022 6
80-some [1] 2623 African [1] 285 assets [1] 585 16 717 817 912 108 1117 12
A agencies [1] 3819
agree [3] 2018 253 5518
Assistant [1] 120
Association [1] 286
22 133 147 157 238111923
24259151821 2712 282914 am [2] 115 32
agreed [1] 294 assume [3] 1221 1711 222 301619 3147 4420 4515 467 ability [4] 12121315 6225
agreement [4] 282325 5819 67 assuming [1] 277 5524 56514 5715 able [7] 1023 2423 2513 264 32
12 assumption [2] 1223 5719 Breyers [4] 164 504 581 6210 20 458 607
agreements [5] 2821 5923 65 assurance [1] 318 brief [16] 618 115 364 377918 above-entitled [1] 113
171920 assure [3] 30619 4218 41121314 482 497 511820 abroad [1] 554
agricultural [1] 84 attenuated [1] 2523 6222 646 669 absent [1] 6213
AIDS [1] 5825 authority [7] 212425 2241114 briefs [1] 4522 absolute [33] 1922 201 22310
AL [1] 13 4619 475 bring [1] 6116 20 2610 282025 3215 331215
Alan [1] 1624 available [3] 11810 412 broaden [1] 559 21 34117 3524 361622 383
Alien [1] 622 BUDHA [1] 13
Heritage Reporting Corporation Sheet 1 1108 - BUDHA
70Official - Subject to Review
building [1] 2613
bunch [1] 6511
Bush [1] 6613
business [2] 1414 6818
businesses [1] 4422
bygone [2] 181819
C California [2] 118 6815
call [1] 412
came [5] 113 1125 1223 3779
camp [1] 6411
canon [5] 159 165 1911 5055
capability [1] 529
capital [1] 5915
captures [1] 2718
Carcieri [1] 67
care [1] 5516
Career [1] 63
carnage [1] 445
carry [1] 5122
Carter [1] 6612
Case [35] 34 4189 548 6236
88161718 9162025 14116
191 2117 2511 34182122 36
2 404 4724 561821 671121
6822122
case-by-case [2] 4612 471
cases [13] 413 61 92 158 1824
269 3415 4424 452020 6110
6837
categorical [2] 4625 683
categories [1] 494
category [2] 878
certain [2] 304 6521
Certainly [7] 1313 402 575 58
14 5918 608 6621
cetera [4] 48699 5321
change [4] 305 348 4310 6312
changes [1] 46
characterization [2] 367 4512
charter [6] 2816 311920 3910
1125
Chase [1] 618
CHIEF [15] 339 20713 3349 34
24 52216 5425 5616 576 607
6318 6820
choice [2] 174 5512
choose [1] 678
Circuit [4] 1814 5717 6214 63
17
circumstances [1] 3224
citations [1] 645
cite [2] 6218
cited [2] 525 5120
citizens [1] 3216
Civil [1] 655
claim [2] 311 612
Claims [3] 6423 6739
class [3] 5324 6025 6116
classic [1] 404
clear [17] 316 1119 1515 2424
2521 2716 4021 4121 4614 50
325 511414161719 646
clearly [2] 4714 547
cliff [2] 5514 634
Clinton [1] 6614
close [3] 425 712 628
closely [1] 910
collection [1] 218
collective [3] 5391219
Columbia [1] 6211
come [11] 1115 1521 322 421
19 4417 539 5810 6016 6122
656
comes [2] 548
comfort [1] 1121
coming [6] 97 3511 4324 5013
541010
commentators [1] 5118
commercial [26] 420 791720 8
1015 9469 2551618 27317
182325 291417 3010 312 32
2 401622 66220
Commission [1] 6813
commit [3] 3323 3816 5611
commitment [1] 3924
commitments [6] 3824 422122
4312 598
committed [4] 332125 3814 39
11
Committee [1] 5823
common [17] 621 74 1419 185
67 3314 3515 439 462 479 49
10 508 6421320 653
commonly [1] 6710
comparator [1] 715
compare [2] 1915 4823
competent [1] 622
complaint [2] 561819
completely [4] 424 4415 47824
compliance [2] 409 597
comply [1] 4124
components [1] 822
concede [1] 2112
concept [1] 4416
concern [4] 1325 414 4320 66
17
concerned [1] 622
concerns [2] 268 551
concludes [1] 5218
conclusion [1] 155
concrete [1] 5710
conditioned [1] 4810
conditions [3] 5321 5618
conduct [2] 261 3217
conference [2] 54811
conferred [2] 4122 5017
conferring [1] 499
Congress [36] 1023 1125 1224
25 1317 1415 174710111217
21 18210 1924 222 231 3225
3319 34616 351417 416 42
20 439 446 4620 471013 512
532 631112
Congresss [1] 1215
connected [1] 2516
connection [1] 2523
consciously [1] 4915
consequences [3] 5021 5722
6219
consideration [1] 374
consistent [3] 46 1011 5617
consistently [1] 6615
construction [3] 3414 351313
contemplated [1] 195
context [1] 3317
Contoe [1] 1624
contract [1] 2612
contractor [1] 2613
contracts [4] 674558
contributing [1] 541
control [4] 1523 162 6514 672
convention [8] 38181920 3913
19 40713 417
conversation [1] 6725
conversely [1] 6113
conviction [1] 65
cooperation [2] 681213
core [4] 2910 3122 66319
CORPORATION [2] 16 35
correct [3] 136 1924 4725
correctly [2] 510 1822
couldnt [2] 2225 2923
counsel [4] 208 335 6319 6821
count [1] 2916
countries [3] 3623 5311 541
country [4] 399 531516 568
counts [1] 2914
couple [4] 241419 3114 4214
coupled [1] 315
course [9] 621 3422 352 3823
4123 5325 5412 575 6115
COURT [31] 1114 310 6824 15
1718 1824 2014 2721 3213 33
310 34131925 351715 361
131416 371 452324 6025 62
1 6316 6512 669
Courts [6] 523 1518 2520 4519
20 657
courts [9] 1423 2722 309 3218
531522 5414 5810 6725
create [4] 1121 6058 612
creates [1] 4617
Criminal [1] 63
critical [2] 5024 5125
critically [1] 584
Cross [1] 5823
crystal-clear [1] 2824
cubed [1] 6720
curiae [3] 122 28 2012
D DC [7] 1102124 2616 5717 58
3 6317
damages [1] 6118
date [1] 1723
dates [1] 613
day [1] 1817
DC [1] 6214
deal [10] 188 2021 2223 2425
3022 4025 4821 618 67715
dealing [1] 683
deals [1] 2123
dealt [3] 2819 552 5621
debates [1] 4314
decades [2] 5717 6214
decide [6] 527 913141923
decides [2] 1516 544
decision [3] 2520 342021
decisions [4] 5313 5525 571 58
4
decouples [1] 4813
decoupling [1] 525
decrease [1] 136
default [2] 126 1720
defend [1] 578
defendant [1] 624
degree [1] 5814
deleterious [1] 6219
denying [1] 315
Department [15] 121 56 917 18
25 198 2823 3525 36101214
402 4546 4611 472
Departments [2] 54910
dependent [2] 5623 592
depends [1] 5821
deploy [1] 5313
deployed [1] 5320
describe [1] 3615
described [1] 1510
describes [2] 3912 465
describing [1] 2218
designated [1] 2623
desperate [1] 443
detail [2] 501414
detailed [1] 5525
determination [2] 1415 4612
determining [1] 567
development [13] 271415 2845
56 2911 302124 5434 5725
5924
dichotomy [1] 1916
dictates [1] 3517
difference [1] 5213
differences [1] 493
different [20] 7323 97 171321
181 2111 3818 4020 4416 46
17 47811 517 567 594 6523
25 6610
difficult [1] 6110
diplomatic [2] 2222 418
diplomats [4] 4138 491018
direction [2] 3956
directly [2] 3122 559
discarded [1] 204
discovery [1] 6117
discussed [1] 5118
discusses [1] 114
discussing [1] 1917
discussion [1] 2017
disincentive [2] 609 613
disincentives [2] 5815 6112
dispute [3] 322 42 82
disputes [2] 261212
disrupt [2] 6225 6421
Heritage Reporting Corporation Sheet 2 building - disrupt
71Official - Subject to Review
disruption [1] 637
District [1] 6210
doctrine [8] 18581819 64127
9
dog [2] 405 4315
doing [5] 194 267 3625 4017 52
17
dollars [1] 585
domestic [3] 2612 3217 5322
DONALD [3] 124 210 337
done [3] 5610 5920 6315
doubt [2] 1913 666
doubts [2] 2511 264
down [5] 1722 182 1925 493 50
22
dozens [1] 561
draft [1] 203
drafting [2] 316 2119
drastically [1] 594
draw [2] 5113
drawing [1] 5213
driving [1] 2615
E each [3] 372324 5311
earlier [2] 5716 6618
easily [1] 636
easy [1] 671
effect [3] 61 364 382
effectively [2] 5123 631
effects [1] 5723
either [2] 94 156
elaborate [1] 5124
element [1] 355
eliminate [2] 259 476
ELLIS [31] 120 26 2091013 21
21 2212 23921 2447141719
23 2621 27481013 2881115
294820 3018 313613 328
employees [3] 214 2221 486
enact [1] 304
enacted [11] 1616 3225 3319 38
89 412325 42817 4621 6423
enacting [1] 4225
enactment [6] 75 17910 4410
644 6516
encourage [1] 3024
end [4] 425 358 421618
ended [1] 383
enforcement [1] 83
engage [3] 197 2724 613
enjoy [1] 58
enjoyed [2] 313 1210
enough [2] 2523 2921
ensue [1] 5021
ensured [1] 4220
enter [4] 3011212 329
entered [1] 2820
entire [1] 2021
entirely [3] 4617 5821 592
entities [3] 4423 5724 5818
entitled [3] 319 1922 6521
entity [1] 602
environmental [3] 591921 6813
Equal [1] 6424
equivalence [3] 4219 5113
equivalent [1] 424
era [2] 181819
especially [5] 324 1021 18419
5316
ESQ [6] 11824 2361013
essential [1] 663
essentially [3] 2124 5510 633
established [2] 351821
ET [5] 13 48699 5321
Even [30] 63 8816 107 1110 12
1620 1424 1816 19345 256
10 265 2714141415 361218
427 4815 521722 596 6168
6416 677
event [1] 5518
everybody [2] 4121 6215
everybodys [1] 277
everything [4] 96 1013 2534
evidence [3] 393 6314 651
evolve [4] 1620 431921 5424
evolves [2] 542222
evolving [2] 3313 6413
Ex [1] 1514
exact [2] 625 1916
exactly [8] 124 1714 237 3224
4211 5415 5615 653
example [6] 719 81 198 2412
3725 543
examples [2] 1025 3720
exception [5] 79 256 271925
349
excuse [1] 5418
executive [16] 1024 1481318
151161924 3410 398 4014
416 462025 475 5012
exemptions [2] 4848
exist [1] 194
existence [2] 4715 4810
expect [2] 4025
explained [3] 2722 497 6618
exposed [1] 5713
extent [3] 394 5623 673
extraordinary [1] 609
F face [2] 461423
fact [12] 2512 3123 393 464 47
13 487 5622 6221 6415 6619
671016
facts [3] 4418 5623 6721
factual [1] 6021
failed [1] 391
failure [1] 5611
fair [3] 366 373 4511
fairly [1] 5525
fall [4] 1911 2614 5819 687
far [4] 201719 437 458
fat [1] 6114
fault [1] 604
favor [2] 76 3112
federal [8] 1210 1823 642222
2525 652 667
fees [1] 6713
few [1] 723
fiduciary [1] 5612
fight [2] 582425
fighting [1] 5812
filed [3] 4114 473 669
Finally [1] 6719
FINANCE [2] 16 35
financial [2] 814 329
find [7] 2923 401415 4316 458
481 6019
fine [1] 632
fingerprint [1] 5012
first [10] 7123 102 1412 1610
1724 2324 351 5711 6514
FISHER [23] 118 2313 3679 5
12151721 10418 1381013 16
31321 173 4425 63202123
fisheries [1] 81
fit [2] 106 1520
five [3] 818 389 523
fixed [8] 212 2219 331216 495
6 533 6420
floating [1] 534
floodgate [1] 279
floodgates [3] 267 3116 6617
flux [6] 189 3523 361520 6415
17
focus [1] 3213
following [1] 5913
foolish [1] 1816
foreign [39] 3131819 7141518
812 97 1216 19720 219 234
9 2512 3219 3324 391622 42
2910 4320 489111425 4919
51319 52681019 6115 624
6720
foreign-cubed [1] 621
forever [1] 44
forgive [1] 1623
form [5] 1172123 1434
former [2] 6222 6411
forth [1] 4421
forward [8] 131424 142 2513
265 32314 606
foundation [1] 5116
founding [2] 620 548
Four [3] 632024 6610
Francisco [2] 5115 548
fraud [3] 342323 356
friend [6] 2016 2120 254 6516
6625 685
friends [7] 344 3920 4414 4510
468 4723 5022
front [2] 426 444
frozen [1] 2117
FSIA [10] 1411 15423 2718 297
5515 617 66121616
fulfill [3] 3320 422125
full [5] 354 4816 4918 522025
fully [1] 1023
function [1] 6225
functional [5] 519 538 541719
23
functions [3] 5123 6523 663
fund [2] 582425
funded [1] 555
funds [2] 196 5323
further [1] 332
future [1] 102
G gave [5] 517 124 349 382 4514
General [7] 120 322 113 1716
1811 6419 676
Generals [1] 686
generally [1] 5416
George [1] 6613
gets [1] 4820
getting [3] 923 148 5221
GINSBURG [5] 326 3520 4513
17 4821
Ginsburgs [1] 436
give [24] 56 61722 824 1018 11
21 1221115 131 15171920
3016 31814 3719 448 45415
4916 518 5417 688
given [10] 41 15122 175 1914
2211 3115 349 361
gives [4] 31117 812 1116
giving [1] 6410
Glad [1] 2423
global [1] 5824
gloss [1] 4413
goal [1] 1411
Gorsuch [6] 410 163142225
1813
got [9] 510 2317 289 467 4918
5513 5724 5925 6013
gotten [1] 3715
government [7] 127 318 3811
48911 6224 6819
governments [4] 92 4522 6425
668
governmental [1] 123
governments [11] 31319 812 9
1 12110 219 23410 2720 32
20
governs [1] 3511
grab [1] 6024
granddaddy [1] 4010
grant [8] 2023 2225 2313 246
4621 4816 5121 5822
granted [4] 4624 4878 516
granting [1] 4117
grants [2] 824 302
gratified [1] 556
gravamen [7] 25222425 5619
5722 6722
great [3] 188 2425 4025
gross [1] 4625
group [2] 710 5817
groups [2] 572224
guarantee [1] 5522
guess [6] 922 299 4213 4423
5517 639
H
Heritage Reporting Corporation Sheet 3 disruption - guess
72Official - Subject to Review
half [1] 2810 importing [1] 1419 11 595 56101314 591113 60122 61
hand [3] 4823 6479 impose [1] 5321 itself [7] 716 811 116 2416 372 1 6718
happen [4] 59910 631011 incentives [1] 142 4218 6325 lawsuits [5] 319 566 621 6625
hasten [1] 1424 include [1] 561 J 6711
headquarter [1] 1022 Including [1] 2711 lay [1] 1925
headquartered [4] 1022 2619 inconceivable [2] 43812 JAM [2] 13 34 lead [4] 153410 319
25 6213 incorporate [1] 3518 JEFFREY [5] 118 2313 37 63 least [4] 186 2410 497 5818
headquarters [2] 2615 292 incorporated [6] 325 72 169 33 21 leave [1] 420
Health [1] 5823 14 3423 6616 JONATHAN [3] 120 26 2010 leaves [1] 5512
hear [2] 33 557 incorporates [2] 5067 JR [2] 124 210 led [1] 449
heard [2] 4425 4822 incorporating [2] 509 648 judge [1] 1319 left [1] 2016
heart [2] 501516 incorporation [1] 4912 judgment [2] 4711 6713 legal [2] 5918 6713
heightened [1] 144 increase [1] 226 judgments [3] 531925 545 legislation [3] 813 175 6311
held [2] 309 6615 indeed [4] 427 187 203 Judiciary [2] 619 1724 legislative [1] 1119
helps [1] 5911 indemnifies [1] 6712 July [1] 388 lend [2] 423 2412
hewing [1] 3621 indemnify [1] 6710 jump [2] 5514 634 lending [8] 889101623 2719
historical [4] 393 441318 4512 India [4] 2623 575 6122 juridical [1] 5113 2910 5525
history [4] 316 1119 2119 2818 Indian [2] 47 68 jurisdiction [1] 5413 lends [1] 302
hoc [1] 4612 indicate [1] 3123 jurisprudence [2] 523 657 lens [1] 712
Hoffman [1] 1514 indicated [1] 5715 Justice [96] 121 339 4310 513 less [1] 229
hoist [1] 6011 indicators [1] 4720 162022 616 717 817 912 108 Letter [6] 361919 3921 403 437
hold [1] 3723 individualized [1] 1417 1117 121822 133591112 14 465
Honor [4] 2420 365 4024 494 individuals [3] 419 491017 67 156 1634142225 1812 20 level [3] 3719 387 5225
Honors [1] 558 infer [2] 351616 713 2121 238111923 24259 liability [2] 67116
hope [6] 5521 5889 6177 6618 infrastructure [1] 6817 151821 2617 272691111 28 liberal [1] 6117
hopefully [2] 606 634 initial [1] 4022 2914 2938 301619 3147 32 lien [2] 5920 6010
hornbook [1] 1010 injured [1] 6121 6 33410 34524 3520 3612 40 light [1] 3317
hornbooks [1] 43 injuries [1] 262 1619 42715 4356 4420 4513 limited [1] 1224
host [3] 2025 217 5316 inquiry [1] 358 1517 467 4721 4821 504 522 list [1] 3020
housed [1] 6212 insertion [1] 69 16 5425 5524 5651416 576 little [2] 102 5510
however [1] 572 instance [1] 2220 15 581 607 629 6318 6424 66 live [2] 5925 603
I instead [2] 6120 6520
institutions [2] 81823
2 6820
K loan [3] 820 2924 602
loaning [1] 5914 idea [4] 14816 1618 2618
identified [1] 581
IFC [10] 710 8111919 256 283
323 591320 6620
IFCs [2] 3120 6621
II [1] 446
illustrate [1] 5711
IMF [6] 283 302 37202525 388
immediately [2] 407 6112
immune [4] 215 252 6718 6817
immunities [19] 2025 2216 234
instructions [1] 5011
intended [2] 347 513
Inter-American [1] 284
interest [1] 1114
interests [1] 6220
interfere [1] 3110
internal [3] 60131922
INTERNATIONAL [37] 16 3511
17 422 72224 824 1025 1421
1921 2221 232 251 286 3222
3323 4010 421 4621 477 485
KAGAN [6] 2121 2938 42715
435
keeps [1] 4824
kept [1] 6516
key [2] 542020
kind [5] 825 453 5124 606 614
kinds [5] 716 2618 3820 5921
6010
knowing [1] 101
knows [2] 198 5810
loans [5] 2912131822 5913
lobby [1] 1023
locate [1] 1014
lock [1] 175
long [5] 45 1011 1322 619 63
14
look [32] 61315 724 911 108 13
18 168121416 1713 2021 21
19 2311 2817 311920 351 37
10 4111 4412 45119 4623 50
10 547 5511 6017 6221 6311 3815172121 391213 4118 131924 5018 51481221 526 L 642 667 4622 4848 49916 5214 5933 23 5822 623 6622 68410 labor [2] 591922 looked [4] 44 158 3020 4524
immunity [119] 312171820 419 Interpol [1] 83 landing [2] 5515 635 looking [2] 3523 212425 559 9152125 1024 interpret [1] 1017 language [8] 1017 1518 202 21 looks [3] 3618 3812 4313 11672123 1229911161925 interpretation [2] 3415 659 13 343 359 421215 lot [10] 2017 221 2814 319 446 13120 145141721 15219 16 interpreted [1] 343 last [1] 49 5516 5625 5812 6110 636 1 191922 20124 213925 223 interpreting [2] 619 359 late [1] 4120 lots [2] 420 6114 991922 2337131415 2436 intervention [1] 5322 later [3] 4916 3810 lower [3] 2722 309 6725 101125 259 26510 28152025
297 3025 3121 3251521 33 investigate [1] 6018
inviolable [1] 213
latter [1] 1717
Laughter [4] 172 2318 241 55 M
121522 3411117 3523 36110 involved [2] 149 661 20 made [10] 53 1223 1415 18910
15172224 37121319 3847 39 IOIA [21] 31115 11816 2023 22 law [46] 32425 61121 714 82 3924 469 4710 561 6723
215161722 411822 4223 434 17 2624 331120 3718 3869 1056 131516 1419 151212 mail [1] 3422
920 448 4525 463 47618 48 22 391 411921 4314 4410 46 15 1620 17151618 18567 21 main [1] 582
17 5017 516921 522025 53 18 498 593 14 3314 3515 3619 383 439 malaria [1] 591
14 5513 5720 582121 6214 65 ISMAIL [1] 13 20 4524 462 479 4911 508 53 managing [1] 81
182224 isnt [6] 1618 2513 31910 3711 22 571417 621014 631213 64 manner [1] 6715
important [5] 1324 502 5317 57 4419 281320 653 many [9] 413181818 725 1025
16 6416 isolation [1] 2020 laws [1] 306 2618 322 581
importantly [1] 257 issue [6] 1219 211116 5621 58 lawsuit [14] 1223 15225 4723 margin [1] 6111
Heritage Reporting Corporation Sheet 4 half - margin
73Official - Subject to Review
market [2] 820 2918
massive [2] 5324 545
match [1] 4418
materiality [2] 3423 355
materials [4] 372 426 4413 45
12
matter [7] 113 1716 466 5016
16 515 6417
matters [1] 5814
mean [14] 4111213 64 914 248
251 371 4211 451819 5212
5418 5617
meaning [7] 179 3315 351518
22 64310
means [4] 524 3517 421620
meant [3] 64 223 2910
measure [1] 126
measures [1] 6019
mechanism [2] 4617 6014
member [1] 5325
members [3] 486 5224 539
mentioned [2] 1813 417
mess [1] 453
metaphor [1] 634
metes [1] 1714
method [1] 6715
might [2] 718 6620
mind [2] 523 681
minimum [1] 1524
minute [2] 3722 5124
minutes [2] 523 6320
mission [1] 444
mistake [1] 53
Mister [1] 293
mixed [1] 923
mixing [1] 644
modern [1] 1817
moment [5] 4115 105 3921 65
16
monetary [1] 411
money [14] 41223 820 2413 30
7 541 569 59141423 602 612
15 627
months [1] 389
morning [2] 2017 3116
most [6] 232 257 3316 4722 53
16 551
move [3] 3611 515 535
moving [1] 3623
much [5] 141 2517 3112 395 40
21
multi-country [1] 5211
multilateral [1] 5725
multinational [1] 2911
must [4] 251718 351616
N Nader [2] 341921
narrow [1] 4915
narrower [1] 499
nations [4] 418 397 4011 5412
natural [1] 354
nature [2] 123 2924
necessary [4] 1720 3510 3912
6523
Neder [1] 641
need [7] 1116 306 3124 3268
3712 4318
needed [2] 291 3823
negligence [2] 56711
negotiate [4] 1214 143 2825 67
5
negotiated [3] 115 1220 3914
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1
IN THE SUPREME COURT OF THE UNITED STATES
BUDHA ISMAIL JAM ET AL )
Petitioners )
v ) No 17-1011
INTERNATIONAL FINANCE CORPORATION )
Respondent )
Washington DC
Wednesday October 31 2018
The above-entitled matter came on for
oral argument before the Supreme Court of the
United States at 1108 am
APPEARANCES
JEFFREY L FISHER ESQ Stanford California on
behalf of the Petitioners
JONATHAN ELLIS Assistant to the Solicitor General
Department of Justice Washington DC for the
United States as amicus curiae supporting the
Petitioners
DONALD B VERRILLI JR ESQ Washington DC on
behalf of the Respondent
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C O N T E N T S
ORAL ARGUMENT OF PAGE
JEFFREY L FISHER ESQ
On behalf of the Petitioners 3
ORAL ARGUMENT OF
JONATHAN ELLIS ESQ
For the United States as amicus
curiae supporting the Petitioners 20
ORAL ARGUMENT OF
DONALD B VERRILLI JR ESQ
On behalf of the Respondent 33
REBUTTAL ARGUMENT OF
JEFFREY L FISHER ESQ
On behalf of the Petitioners 63
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P R O C E E D I N G S
(1108 am)
CHIEF JUSTICE ROBERTS Well hear
argument next in Case 17-1011 Jam versus
International Finance Corporation
Mr Fisher
ORAL ARGUMENT OF JEFFREY L FISHER
ON BEHALF OF THE PETITIONERS
MR FISHER Mr Chief Justice and
may it please the Court
The IOIA gives international
organizations the same immunity from suit as
is enjoyed by foreign governments
The plain text of this provision
coupled with the structure of the IOIA and the
drafting history make clear that the same
immunity provision gives international
organizations the same immunity that foreign
governments are entitled to under the Foreign
Sovereign Immunity Act
Starting with the text my opponents
do not dispute that as a general rule when a
statutory provision refers to another body of
law especially as here in the present tense
that body of law is incorporated as of the
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moment of suit in any given case
And indeed they dont dispute -shy
JUSTICE BREYER So the hornbooks that
I looked up going back forever dont say
quite that They say thats true as long as
the changes are consistent with the purpose of
the adopting statute And indeed the Indian
case you know the word was now was it now
1934 or now later In the case we wrote last
term that Justice Gorsuch wrote the word was
monetary relief Does that mean as of the
past or does it mean what we call money relief
now I mean there are many cases like that
And here the word is is Does the
word is refer to the past is at the moment a
passage or later The two arguments that Id
like you to address that are opposite you are
one states do many things nations many many
things and so if we take immunity from them
for commercial things we leave lots of
immunity with them for those other things
But international organizations some
of them do only one thing lend money or the
equivalent And if we take immunity from them
thats the end of the immunity or close
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Thats one argument
The second is this If we decide
against you and weve made a mistake or along
comes a case where they really should have
immunity the President and the State
Department can give it to them
If we decide with you well if along
comes a case where they should enjoy the
immunity no nobody can do anything Did I
say that correctly Have you got the
argument -shy
MR FISHER Okay
JUSTICE BREYER -- or have I said it
backwards
MR FISHER No no no
JUSTICE BREYER Did I say it right
MR FISHER So I think you gave me
two things and then one before it which was
the statutory text
JUSTICE BREYER Yes Thats right
MR FISHER So let me start with the
statutory text Justice Breyer And the word
is in this Courts jurisprudence always
always means at the time of suit not at the
time the statute was passed And weve cited
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reams of cases to that effect My opponents
cite only one case on the other side thats an
Armed Career Criminal Act case Even there
is didnt mean at the time of suit it meant
at the time of the prior conviction So is
is on our side of this case
But in Carcieri which is the now
case the Indian case the Court went out of
its way in that opinion to say the insertion of
the word now takes us out of the ordinary
situation which is when the referenced law
applies at the time of suit And so you can
look at the Sutherland treatise which dates
back to 1904 on this principle
And look at its -- in -- in your own
case Justice Breyer I think if I was going to
give you one case it would be the Steamboat
versus Chase case we cite in our reply brief
Thats interpreting the Judiciary Act which
goes all the way back to the founding of
course and says where the common law is
competent to give a remedy such and such a
remedy is permissible
And in Steamboat the Court rejected
the exact argument the other side makes here
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which is first of all that the law had to be
incorporated at the time of suit and second of
all that there was something different about
the common law as to a statute at the time of
the enactment So all of the textual stuff is
in our favor
Now youve also asked me two other
questions and let me address them So starting
with the commercial activity exception as
applied to a group like the IFC when you
answer -- when you think of that question its
a question of how close you -- you put the lens
into whats going on here
So if you just take a foreign state as
the -- as the comparator here a foreign state
itself does all kinds of things Like you
said Justice Breyer they are not commercial
activity But a foreign state might have a
bank for example that does almost all
commercial activity
And so the same thing is true with
international organizations and let me answer
that in a few different steps So first of
all look at the sweep of international
organizations Many do things like regulation
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for example managing fisheries They do
things like dispute resolution law
enforcement Interpol They do scientific
research and agricultural research All of
those things are non-commercial activities on
the other side
Then you have the category the
special category of lending banks but even
within lending banks not all the things that
lending banks do are commercial activity The
IFC itself on its website talks about how it
gives advice to foreign governments about
legislation that ought to be passed regulating
financial transactions with the private sector
That is not probably commercial activity
And then even within lending
activities Justice Breyer just take the World
Bank it has five separate institutions Now
the IFC is on one side What the IFC does is
-- is loan money at market rates for profit for
private sector projects There are other
components of the World Bank and there are
other lending institutions that are
international organizations that give grants
for public works programs or that do the kind
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of spending that governments do And the
governments argued in past cases and we think
theyre probably right that that is not
commercial activity either
So when the other side says well
everything is commercial activity its no
different than the foreign state coming to this
and saying well if the Bank of Switzerland
does commercial activity then were -- were
stuck Well no no no its just how closely
you look at the problem
JUSTICE BREYER What about -- the
third was if we -- if we decide with you -- if
we decide against you see that would mean
there is sovereign immunity But there
shouldnt be in a particular case the State
Department can waive it and they have to be -shy
response
But if we decide for you and then
theres a case where there really shouldnt be
sovereign immunity or rather -- rather there
really should be I guess -- see thats what
Im getting mixed up You see if we decide
against you and they really should have
sovereign immunity in this case nobody can do
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anything So knowing nothing about the
future it seems a little safer the first
than the second
MR FISHER Well Im going to turn
back in a moment to the law and why that just
cant fit within the law but as to just the
policy question youre asking me even there -shy
JUSTICE BREYER Well you can look -shy
the reason I ask policy questions is because
the hornbook said yes apply it as of now as
long as its consistent with the purpose of the
statute And the purpose of the statute going
back to 1945 and the UN and everything was
to get these organizations to locate here
So its not just policy for policy
Its policy for purpose And purpose is tied
into how you interpret the language
MR FISHER So let me give you the
practical answer and then the purpose answer
On the practical answer
organizations especially if they want a
headquarter here or are headquartered here are
fully able to -- to lobby Congress or the
executive branch for special immunity And
there are many examples across international
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organizations
Take the Organization of American
States OAS And the solicitor general
discusses this in -- the organization in its
brief In 1994 it negotiated a special
immunity provision for itself to get more than
the ordinary restrictive form of immunity that
was available under the IOIA
So there are -- there are pathways
available and they have been used even more
so
Remember the United States as you
say has a -- has a sometimes principal
interest in these organizations So it is
quite responsive to them when they come and
say We need more than the IOIA gives us
But Justice Breyer let me turn back
to the -- the original purpose which was the
legislative history is quite clear on what the
purpose was As you say this was partly to
create a form of immunity to give some comfort
to these organizations But the question is
what form of immunity did they ask for and what
did they get
What they did is they came to Congress
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and said treat us like foreign governments
Give us immunity as Congress put it in a
Senate report of a governmental nature And
so what did Congress do It gave them exactly
what they asked for It said were going to
treat you as a default measure like a foreign
government
And remember the words of the
statute are same immunity Same immunity
as is enjoyed by federal governments So were
going to give you the same immunity subject to
the Presidents ability to just -- adjust it
and subject to your own ability and your own
treaty to negotiate for more and subject
thirdly to Congresss ability to give you some
immunity that you dont have even by way of
your own treaty
JUSTICE SOTOMAYOR Can we go to that
issue raised in part The special immunity I
know was even negotiated by the UN I think
in the 1990s and OAS and others but assume
that were in your regiment and Justice Breyer
made the assumption that if a lawsuit came to
us now under your theory and it was limited
immunity that the President or Congress could
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give immunity to the other side
I dont think so
JUSTICE BREYER No its the
opposite
JUSTICE SOTOMAYOR The opposite The
President cant decrease it correct So that
problem still remains with your -shy
MR FISHER Well -shy
JUSTICE SOTOMAYOR Yeah
MR FISHER -- I think it -- it may
or may not remain Justice Sotomayor
JUSTICE SOTOMAYOR Thats my -shy
MR FISHER Certainly we could -- we
would say we can go forward on this suit
because -- because there is no such law
If that law were passed youd have
two questions One is did Congress make it
retroactive And you look to Altmann to think
about how to judge the retroactivity of
immunity provisions And then if it were
retroactive whether that were permissible
But you know were a long way from
-- from that sort of a situation I think the
important thing going forward and this is I
think what the concern is on the other side
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is not so much about this case but about
incentives and policies going forward they
have every opportunity to negotiate in one form
or another or to procure a heightened form of
immunity
And Justice Sotomayor let me say one
more thing to you and Justice Breyer about you
know the idea of the executive branch getting
involved This is one of the problems I
submit with the other sides argument
Remember part of the goal of the FSIA
in the first section of the Act in Section 1602
is to get -- is to get the executive branch out
of the immunity business
Congress made the determination that
it was a bad idea to have every case turning on
individualized suggestions of immunity and
executive branch political policy And so the
other side by importing the common law of
1945 would reintroduce that problem into
international organization immunity in a way
that we dont think would be very good
politically or very workable in the courts
And Id hasten to add that even under
the rule of 1945 if the question were what
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does the executive branch think about any given
lawsuit or any given immunity for any given
type of suit that would just lead you right
back to the FSIA and it would lead you back to
the same conclusion that we submit to you here
So either pathway whether Justice
Breyer you start with the way youve always
looked at cases with the word is and the
word same and the reference canon that Ive
described and say all of those things lead you
to a time of suit rule or if you start with
the law of 1945 and say what was the law in
1945
Well Hoffman and -- in Ex Parte Peru
were clear that the law of 1945 was the
executive branch decides and its not for the
Court -- this is -- Im going to give you the
Courts own language -- its not for the Court
to give immunity where the executive branch has
not seen fit to give it
And if that were the test youd come
right back to where you -- where I started
here which is that the FSIA would control or
at the bare minimum the executive branch
position in this lawsuit on the type of
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immunity that ought to apply in this situation
would control So -shy
JUSTICE GORSUCH Mr Fisher if I can
pick up on Justice Breyers question The
reference canon I take all -- all of your
points but sometimes lets say we have a
statute that -- that refers to another statute
Usually we would look at the second
statute thats being incorporated as of the
time of -- of the adoption of the first
statute Right So if -- if this statute were
to say go look at Section 5 -shy
MR FISHER Right
JUSTICE GORSUCH -- we wouldnt look
at it the way its been subsequently amended
Wed look at it as it was originally enacted in
1945
Why isnt that -- that idea pertinent
here you know when we refer to a specific
law we dont take it to evolve over time
MR FISHER So for two reasons
Justice Gorsuch and one of them if youll
forgive me is going to be something you said
in the Alan Contoe opinion
JUSTICE GORSUCH I was afraid of
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that
(Laughter)
MR FISHER But for two reasons One
is Congress has a choice to make when it writes
legislation It can lock in a given rule by
setting a specific statutory provision and says
thats the rule we want just like if Congress
uses a particular word at the time of the
enactment the meaning of that word at the time
of enactment would be what Congress -- wed
assume Congress wanted
Or Congress could do something
different which is to say look were not
sure exactly of the metes and bounds of the
law Were just going to tie it to this other
area of law as a general matter And thats
what Congress did here It did the latter
So it took an area of law as a point
of reference and said Just use that as the
default rule and then adjust as necessary And
those are just two different pathways Congress
can go down
And they date as I said all the way
back to the First Judiciary Act there in the
Sutherland treatise all the way back to 1904
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and so theres just two different pathways
Congress can go down
And it makes perfect sense I think
in a situation like this especially where you
have a common law doctrine being referenced at
least a common law at the time and one that
was indeed not just any old common law
doctrine but one that was in a great deal of
flux at the time So it made every reason -shy
it made every good reason for Congress to have
a general reference not a specific one
And then the second reason Justice
Gorsuch is the one you mentioned sitting on
the Tenth Circuit which is that as time goes
by it becomes all the more stilted or
antiquated or even foolish sometimes to try to
answer questions in the modern day according to
what some bygone era doctrine would have
required and especially a bygone era doctrine
like this
If I understand the other sides
position correctly basically the question
theyre having -- they would want every federal
court to ask in these cases is what would the
Truman Administrations State Department have
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wanted to do in this case
And when you have things like this
which didnt even -- an organization that
didnt even exist at the time sometimes doing
activities that werent even contemplated at
the time things like sovereign wealth funds
which foreign sovereigns now engage in for
example who knows what the State Department
would have thought then
I think theres every reason then to
fall back on the reference canon And if I can
say one more thing before reserving my time if
you have any doubt about just the plain text
argument Ive given you I would urge you to
compare the text in Section 288a to the text -shy
Section 288d which has the exact dichotomy
that -- that Ive been discussing today
One subsection subsection (a) says
that the same immunity rules apply and
subsection (b) says that foreign officials -shy
Im sorry international organization officials
are entitled to absolute immunity
So this is yet another reason why if
the other side were correct and if Congress had
wanted to lay down the rule they did why would
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they not have just used the absolute immunity
language in subsection (b) of subsection (d)
and that indeed was the original draft of
this act that was discarded
So I could go on but Id rather save
the rest of my time for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Ellis
ORAL ARGUMENT OF JONATHAN ELLIS FOR
THE UNITED STATES AS AMICUS
CURIAE SUPPORTING THE PETITIONERS
MR ELLIS Mr Chief Justice and may
it please the Court
If I could Id just like to pick up
right where my friend left off Theres been a
lot of discussion so far this morning on the
text of Section 288a We agree that the
Petitioners have the far better reading of that
phrase in isolation but I think it really
settles the deal when you look at the entire
structure of the Act
The -- the IOIA doesnt just grant
immunity in Section 288a(b) but it provides a
whole host of immunities and it does it in two
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different ways In several different
provisions the Act sets a fixed rule of
immunity So archives are inviolable and
officers and employees of the organizations are
immune from suit with respect to their official
acts
And then there are a -- a host a
collection of three provisions that set the
immunity by reference to foreign governments
Theyre Section 288a(d) Section 288d(a) and
theres Section 288a(b) the one at issue here
Respondents concede that the
referential language in those other two
provisions do refer to the state of the law as
it is today
Its only the one thats at issue in
this case that they say was frozen We dont
see how that can be and thats particularly
true when you look at the drafting history that
my friend referred to
JUSTICE KAGAN Mr Ellis before you
get to that another part of the structure is
this provision that deals with presidential
authority and thats essentially a roll-back
authority of immunity
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Doesnt that make a lot more sense
that provision if you assume that Congress
meant for there to be absolute immunity In
other words the presidential authority is a
one-way ratchet The President can only under
this provision roll it back It cant increase
it
So to me if I -- if -- if -- if -shy
if the immunity -- if the immunity is less than
absolute you would think that they would have
given the presidential authority both ways
MR ELLIS Sure The reason that
argument doesnt work is because Section 288
the Presidents authority under that provision
doesnt just apply to Section 288a(b) It
applies to all of the immunities provided by
the IOIA
And as I was just describing some of
those are fixed immunity rules that are not
absolute And so for instance the officers
and employees of international organizations do
not receive diplomatic immunity That was a
big deal at the time
And -- and yet the President cant -shy
couldnt grant that up I think what that
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provision shows is that Congress wanted to
provide international organizations at most the
immunity from suit and other privileges of
immunities that foreign governments received
and not more so
And yet Respondents are here today
asking you for exactly that more immunity -shy
JUSTICE BREYER But on that -shy
MR ELLIS -- than foreign
governments receive
JUSTICE BREYER But look whatever
other things it refers to the provision allows
the President to waive immunity not to grant
immunity And your argument is they have
immunity Right
Do I have -- I get this backwards
This is the third time Ive got it backwards
(Laughter)
JUSTICE BREYER Sorry The provision
allows the person to be sued Is that right
MR ELLIS It does allow them to be
sued
JUSTICE BREYER Okay So I was
right I had it backwards the first time but
not the second not the third all right
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(Laughter)
JUSTICE BREYER It allows the
President to waive the immunity
MR ELLIS Thats right
JUSTICE BREYER Okay It doesnt
allow him to grant the immunity
MR ELLIS It does in a sense I
mean -shy
JUSTICE BREYER But the power to
waive the immunity at least in this section
amounts to nothing if they have no immunity
because for example all they do is lend
money
MR ELLIS So -- so a couple -shy
JUSTICE BREYER Thats -- thats -shy
and the other way it seems to work itself out
MR ELLIS Understood
JUSTICE BREYER Okay
MR ELLIS A couple responses to
that Your Honor
JUSTICE BREYER Thats the question
I think
MR ELLIS Glad to be able to address
that Number -- number one just to be clear
we -- they do have a great deal of immunity I
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mean foreign -- international organizations
and foreign states are presumptively immune
And I would agree with almost everything
that -- maybe everything that -- that my friend
said about why the commercial activity
exception even with regard to IFC and -- and
most -- more importantly with regard to the
vast sweep of these organizations is not going
to eliminate immunity
I would add one more is that even a
case like this we have serious doubts I
think -- we think in fact from what we know
this suit isnt going to be able to go forward
regardless of the answer to the question
presented because in addition to having -- to
being connected in some way to commercial
activity there must be a much stronger nexus
It must be based on commercial activity that
occurs in the United States
We think the Courts decision in OBB
makes clear that the way you apply that is to
ask Whats the gravamen of this suit Its
not enough to have some attenuated connection
but whats the gravamen
And the gravamen of this suit as we
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understand it is -- is tortious conduct that
occurred in India injuries that occurred in
India And we dont think -- we have serious
doubts that this is going to be able to go
forward even under restrictive immunity
And so we do not think that what were
doing is opening the floodgates here rather
that the sort of concerns that would be barred
-- cases that would be barred by Respondents
absolute rule of immunity and would be allowed
by ours are -- are sort of quintessential
domestic disputes contract disputes with your
contractor who renovated the building the slip
and fall at the -- at the organizations
headquarters or the driving accident on the
streets of New York and DC
JUSTICE SOTOMAYOR Do you have -- do
you have any idea about how many of these kinds
of organizations are headquartered in the
United States
MR ELLIS I think the numbers are in
the 20 to 30 range Theres about -- somewhere
80-some organizations that have been designated
for protection under IOIA and 20-some that have
-- I think are headquartered in the United
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States
JUSTICE SOTOMAYOR That are
commercial like this one
MR ELLIS No no no No I did
not -- no
JUSTICE SOTOMAYOR Were -shy
everybodys assuming -shy
MR ELLIS Right
JUSTICE SOTOMAYOR -- a floodgate
MR ELLIS Sure no There are -shy
JUSTICE SOTOMAYOR Including Justice
Breyer
MR ELLIS -- there are a number of
development banks but even then even -- even
the development banks even if you talk about
the World Bank its not clear that those
commercial activities are the sorts that the -shy
the FSIA captures with the commercial activity
exception Lending there is to sovereign
governments
And -- and as the Court has been -- as
lower courts have explained that sort of
commercial activity is not the sort that a
private party could engage in So its not the
sort that the commercial activity exception
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picks up
JUSTICE BREYER Well I -- I have the
IFC the IMF the World Bank the
Inter-American Development Bank the Asian
Development Bank the African Development Bank
the International Development Association So
I -shy
MR ELLIS Sure I -shy
JUSTICE BREYER -- Ive got -- thats
only half of them
MR ELLIS Thats -- that -- Im not
sure what percentage that is I want to point
out that some of those organizations -shy
JUSTICE BREYER There are a lot
MR ELLIS -- have their own immunity
provision in the -- in their charter And so
thats what we think -- if you look at the
history thats what -- thats how it has been
dealt with for organizations that require
absolute immunity Weve entered into
agreements
I would point again to the OAS
agreement where the State Department is just
crystal-clear that what OAS did in that
agreement was to negotiate absolute immunity
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because they thought thats what they needed in
order to put their headquarters here
JUSTICE KAGAN But Mister -shy
MR ELLIS We agreed to that and we
said But hey this is not our usual
practice Ordinarily we -- we afford only
restrictive immunity We point to the FSIA
JUSTICE KAGAN Mr Ellis I -- I
guess Im not sure I -- I quite understood what
you meant As to the core lending activities
of these multinational development banks in
other words making loans where private actors
would not make loans do you have a view as to
whether that counts as a commercial activity or
not
Did you say that that would not count
as a commercial activity because theyre making
loans that the -- that the private market would
not make
MR ELLIS No Im -- Im not saying
that its -- that its enough that theyre
making loans that a -- that a private -- they
couldnt find a private party to provide Im
saying if the nature of the loan is such that
its -- its not the sort of transaction that a
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private party would enter into so think about
the IMF that grants -- that lends to sovereigns
and they do so on the requirement that the
sovereign enact certain restrictions -shy
regulations and change their -- their -- their
laws in order to assure that they dont need
the money again
That is the sort of thing thats been
held by lower courts and weve advocated is
not a commercial activity Thats just not the
sort of transaction that a private party can
enter -- enter into Its not just that a
private party didnt Its that -- that no one
-- thats not something that you can do
Thats a sovereign act
JUSTICE BREYER But can you give
me -shy
MR ELLIS Or a quasi-sovereign act
JUSTICE BREYER -- anything to assure
me because when I looked through this list I
thought that there were development banks like
the World Bank which is a pretty big deal as
well as in Asia in Africa were trying to
encourage development all over the world and
suddenly by removing the sovereign immunity
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because the plaintiff will claim this is a
commercial activity
MR ELLIS So -- so -shy
JUSTICE BREYER And youre not
denying it
MR ELLIS And so -shy
JUSTICE BREYER So what is the
assurance that the government can give us that
this isnt going to lead to a lot of lawsuits
and this isnt going to interfere with perhaps
activity that the United States traditionally
has been very much in favor of
MR ELLIS Absolutely Let me -- let
me give you a couple things I think weve
given you a number of -- of points already this
morning as to why we dont think the floodgates
are going to open
If -- if theres one more Ill say
just look at the -- the charter of these
organizations Look at the IFCs charter
They already waive suit waive immunity for
suits going directly to their core activities
They -- they in fact indicate that they -shy
they need to waive suit in these suits
And so I -- I think when youre
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talking about what are the suits that are going
to come up under commercial activity many of
them are already going forward because the IFC
and the World Bank and others have waived their
immunity
JUSTICE GINSBURG And they need to
because
MR ELLIS They need to because no
ones going to enter into a financial
transaction with them if they -- they know they
cant sue if it -- if it goes south
The other thing -- I want to also
focus the Court on the -- on the suits that we
know are not going to go forward on the
absolute immunity side Were talking about
suits by -- by US citizens and residents
about domestic conduct and theyre seeking
redress in US courts
These are the suits that foreign
governments are -- are able to be sued on and
dont have immunity And we dont see any
reason why international organizations should
not also be subject to suit in those
circumstances and we think thats exactly what
the Congress was trying to do when it enacted
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Section 288 in 1945
If there are no -- no further
questions we ask the Court to reverse
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Verrilli
ORAL ARGUMENT OF DONALD B VERRILLI
ON BEHALF OF THE RESPONDENT
MR VERRILLI Thank you Mr Chief
Justice and may it please the Court
The IOIA prescribes a standard of
virtual absolute immunity that is fixed and not
evolving We know that because the text
incorporated common law terms that had a
settled meaning of virtually absolute immunity
and because a fixed standard makes the most
sense in light of the statutory context and
purpose
Now the reason that Congress enacted
the IOIA was to fulfill treaty obligations that
committed us to provide virtually absolute
immunity Those treaty obligations did not
commit us to treat international organizations
the same as foreign states were treated They
committed us to the substantive standard of
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virtually absolute immunity
And therefore if -- if -- if the
language in section 288b is interpreted in the
way my friends on the other side suggest -shy
JUSTICE SOTOMAYOR So why didnt
Congress say that the way it did in the other
provisions of this Act And if it intended
that in no change it could have said it and
given the very exception it gave which is that
the President or the executive could reduce
immunity which was the standard at the time
MR VERRILLI So let me start with
the basic question We think if the Court
applies the normal rules of construction that
it applies in statutory interpretation cases
that Congress did say that it was providing
virtually absolute immunity
And I think a case in particular that
I would point the Court to is the Nader
decision 527 US and in particular to page
21 of the Nader decision Thats a case -shy
that case of course was about whether mail
fraud and wire fraud incorporated a materiality
standard This is an opinion by Chief Justice
Rehnquist unanimous for the Court on this
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point The Court said first we look to the
text of course and when looking to the text
if we -- if -- and in looking to the text
based solely on a natural reading of the full
text materiality wouldnt be an element of the
fraud statute
And then the Court says But that
does not end the inquiry because in
interpreting statutory language theres a
necessary second step And this is -- Im
coming to the point that I think governs here
which is that it is a well-established rule of
construction a rule of construction that
where Congress uses terms that have accumulated
settled meaning under the common law a court
must infer must infer unless the statute
dictates otherwise that Congress means to
incorporate the established meaning of those
terms Now the -shy
JUSTICE GINSBURG What about the
argument that there wasnt an established
meaning in -- what was it -- 1945 that it -shy
the -- the status of the immunity was in flux
It had been absolute but then we were going
over -- the State Department was advising the
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court whether immunity should be given in a
particular case
MR VERRILLI Theres a bit of a
suggestion to that effect in the brief of the
United States Your Honor but I would
respectfully suggest that is not a fair
characterization of where things stood in 1945
at all
It is true that some people within the
State Department in 1945 thought that immunity
should move to a more restrictive standard but
the Justice Department would not even advance
that standard in this Court at the request of
the State Department and this Court did not
describe the immunity as being in flux This
Court said the standard was virtually absolute
immunity
If one looks even in 1952 at the Tate
Letter the Tate Letter didnt say the law was
in flux in the United States It said the
United States was hewing to the standard of
virtually absolute immunity but other
countries were moving towards a standard of
restrictive immunity and therefore we ought
to reconsider what were doing
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So I just -- I mean the Court can
read these materials for -- for itself but I
just respectfully do not think its a fair
consideration of where things stood in 1945 at
all
And then if I could Id like to pick
up on a related point that came up in the brief
of the United States Its another statement
in the brief of the United States and it came
up in argument today that look this really
isnt a problem because for those organizations
that need immunity that goes beyond the -- the
restrictive immunity weve always understood
that they get -- they can go get a special
statute and theyve gone and gotten special
statutes
The United States says on page 27 of
its brief precisely because the IOIA didnt
provide that level of immunity they give these
three examples IMF World Trade Organization
and Organization of American States
Id like to take a minute and go
through each of them because it doesnt hold up
with respect to each of them With respect to
the IMF for example it is true the IMF you
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know it has a -- has a treaty There was a
statute that gave that treaty effect under US
law which ended up providing for absolute
immunity
But it cant possibly be that that was
undertaken based on any sense that the IOIA
didnt provide that level of immunity because
the IMF statute was enacted in July of 1945
and the IOIA wasnt enacted until five months
later So it cant possibly substantiate what
the government was saying
If one looks at the WTO treaty it is
true with respect to that treaty that it
committed us to a very wide scope of
immunities It said that the United -- that
the United States will commit to providing all
or virtually all of the immunities provided
under a whole different UN convention the
UN convention on specialized agencies
Now that convention has all kinds of
tax immunities and property immunities that go
way beyond what the IOIA provides So of
course they needed another statute in order to
make those treaty commitments That doesnt
prove anything about whether anybody thought
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that the IOIA failed to provide virtually
absolute immunity
In fact the historical evidence I
think really to the extent it points in any
direction it points very much more in our
direction And the best way to see that is
with respect to the way the United Nations was
treated under -- by the executive branch in
this country
Now we signed the UN charter in
1945 committed us to provide what the charter
describes as the necessary immunities Then
the UN Convention on Immunities was
negotiated in 1946 which said that the UN
should get virtually absolute immunity Not
the same immunity as foreign states virtually
absolute immunity
Now the United States did not ratify
that convention until 1970 So on the theory
that my friends on the other side have from
the moment of the Tate Letter in 1952 when
foreign state immunity became restrictive and
not virtually absolute anymore we were in
violation of the commitment we made in the UN
charter
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Now if that was true you would
certainly expect the State Department A to
address it in the Tate Letter but theres
nothing in there Its a classic case of the
dog that didnt bark And B you would expect
them to try to do something about it like get
the UN Convention ratified immediately
because otherwise we were going to be out of -shy
out of compliance with our obligations to the
granddaddy of all international organizations
the United Nations
But theres not a -- from 1952 until
the ratification of the Convention in 1970 you
cant find one word by anybody in the executive
branch ever saying that What you do find -shy
JUSTICE SOTOMAYOR What commercial
activities was the UN doing at that time
MR VERRILLI Well -shy
JUSTICE SOTOMAYOR I know today its
a very different organization but its not
clear to me that there was much going on that
was commercial at its initial stages
MR VERRILLI I take that point Your
Honor but what I would say in response is that
there was a very great deal of sensitivity
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about the whole package of -- of immunities
that were available to the UN and its
diplomats and its -- and its workers
And there was concern all along from
1952 to 1970 that -- that -- where the
executive was urging Congress to ratify the
convention but the only things ever mentioned
were the diplomats -- immunities for diplomatic
individuals
And then when you get to 1970 and you
actually look at the Senate report accompanying
the ratification this was not in our brief
but its at page 31 of the brief of the -- of
the scholars who filed the brief in support of
us It quotes the Senate report from 1970 and
what the Senate report says is were not
granting the UN any -- the UN as an
organization any immunity it didnt already
have under the IOIA
So as late as 1970 it was just quite
clear that everybody understood the IOIA
conferred virtually absolute immunity And of
course thats because it was -- it was enacted
to comply with our treaty obligations
It wasnt enacted to make sure that
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come what may that international organizations
would get treated the same as foreign states
That is -- you know thats the best way to
think about it is its just a completely
anachronistic way of thinking about the body of
materials in front of you
JUSTICE KAGAN But even what you just
said Mr Verrilli it wasnt enacted to make
sure that foreign organizations would get
treated the same as foreign states
I mean thats exactly what the
language of the thing says
MR VERRILLI Well so I guess a
couple of things about that I think the right
way to think about the language Justice Kagan
is that it was a means to an end in 1945 when
it was enacted
It was not the end in itself to assure
equivalence of treatment come what may It was
the means by which Congress ensured that it
would fulfill its treaty commitments which were
-- and those treaty commitments were to provide
virtually absolute immunity
And we know the Senate report says
were enacting this provision to fulfill our
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treaty commitments And our treaty
commitments again were not to treat them the
same They were to provide virtually absolute
immunity So -shy
JUSTICE KAGAN Do you think it was -shy
you answered Justice Ginsburgs questions about
how far we were from the Tate Letter in 1945
but do you think it was inconceivable to
Congress that the common law of immunity would
change
MR VERRILLI Well I -- I -- I cant
say that it would be inconceivable to anybody
but what I can say is if one looks at the
debates surrounding the passage of the IOIA
is once again its a dog that didnt bark
You cant find a single person
anywhere saying anything remotely like the
proposition that we need to adopt a standard
that will evolve over time because we have a
concern that foreign sovereign immunity law
will evolve over time
That just was not any part of
anybodys thinking at that time They were
trying -- you have to remember this is coming
out of the Bretten Woods system We have
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Bretten Woods We set up all these
organizations
They have a -- they have a desperate
mission in front of them to try to rebuild the
world -- the world after the carnage of World
War II Theres a lot of pressure on Congress
to get these organizations up and going and
give them the immunity we promised them so they
can go out and do their work Thats what led
to the enactment of the IOIA
It was none of these other things as
I said I really think if you look at the
historical materials its the -- the gloss
that my friends on the other side are trying to
put on it is completely anachronistic
Theyre taking a different concept
that theyve come up with now and trying to
retrofit the historical facts to match it and
it just isnt right
JUSTICE BREYER Is that -- is that -shy
the Russians at that time 45 and so forth
were putting all these businesses into state
entities So my guess is there were -- there
were a number of cases and what I thought I
heard Mr Fisher say is if we really go back
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and look at this well see that the status quo
before this passed was not absolute immunity
but the status quo was a kind of mess where
sometimes the State Department would say give
them immunity and sometimes the State
Department would say not
Now what is the actual situation as
far as youve been able to find it
MR VERRILLI Well I dont -shy
respectfully with respect to my friends on the
other side I dont think thats a fair
characterization of the historical materials
JUSTICE GINSBURG Thats the same -shy
the answer you gave to me is the answer you
would give to Justice Breyer
MR VERRILLI Yes
JUSTICE GINSBURG Same question
MR VERRILLI Yes I mean its just
not there I mean look at what this Courts
cases said This Courts cases didnt say
anything like that
The -- the -- the governments briefs
to this Court didnt say anything like that
When this Court has looked back on the law in
Verlinden and in Samantar it hadnt said
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anything like that It said the standard was a
common law standard of virtually absolute
immunity
And thats in fact how the Tate
Letter describes it too And then as a process
matter -shy
JUSTICE BREYER Okay I got it
MR VERRILLI -- my friends on the
other side have made this argument that well
our position would also require you to go back
to the process of the State Department making
an ad hoc case-by-case determination but
thats wrong too
And thats clear on the face of the
statute that its wrong And the reason -- and
-- and thats right in Section 288 This
creates an entirely different mechanism
What the -- what the IOIA says is that
-- that the President shall have the authority
under executive order once Congress has
enacted a statute to grant an international
organization the privileges and immunities
And if you look at the face of the
statute its obvious that they are granted on
a categorical basis in gross by an executive
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order not on a case-by-case basis by the State
Department when -- when a lawsuit is -- or when
a -- when a lawsuit is filed
And then similarly in terms of the
Presidents authority as to an executive order
to reduce or eliminate the -- the immunity of
an international organization that -- its -shy
again its completely different than the
situation that -- than the common law process
at work So obviously Congress made a
judgment that it was going to put a different
structure and system in place
And the fact that Congress did that I
do say -- I do think quite clearly presupposes
that theres a -- the existence of a
substantive standard being prescribed And the
substantive standard as I said is virtually
absolute immunity
And then in terms of the structural
indicators in the statutory text going back to
a question you asked Justice Sotomayor I
really think the most telling one to -- to
show you I think why my friends on the other
sides case is completely anachronistic and
were correct -- is Section 288f which you can
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find at page 6a of the appendix to the blue
brief
That provision says that the
privileges exemptions and immunities of
international organizations and then of -- of
members and employees et cetera shall be
granted notwithstanding the fact that similar
privileges exemptions and immunities granted
to a foreign government et cetera et cetera
may be conditioned upon the existence of
reciprocity by that foreign government
So right there in the text it
decouples the treatment of international
organizations from the treatment of foreign
states Even in a situation in which the
United States would not grant the full range of
virtually absolute immunity because it wasnt
being -- receiving reciprocal treatment this
statute says the international organization
gets it So -shy
JUSTICE GINSBURG How do you deal
with the argument that we just heard that we
can compare 288a on the one hand which -shy
which keeps the international organizations in
tune with foreign sovereigns and 288 -- was it
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b and d
MR VERRILLI Yes I do think that
the -- the differences break down into two
categories Your Honor There -- some of the
provisions do prescribe fixed standards
Thats true But those fixed standards as we
explained in our brief or at least tried to
are always situations in which the IOIA is
conferring a narrower set of immunities on -shy
on diplomats and individuals than the common
law would have at the time
So incorporation of the standard in
the way this 288a(b) did wouldnt accomplish
the objective there because there was -- they
were quite consciously trying to narrow the
overall scope of immunities and not give the
individuals who worked at these organizations
the same full treatment that diplomats got who
-- from foreign states
Now the second subcategory are the
provisions where the -- the statute says that
their -- the treatment shall be the same But
theres two things about that that are
significant
One is it says they shall be the same
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as under another statutory provision And as
we said we think thats vitally important
here We think its quite clear that in
addition to Justice Breyers points about the
reference canon that the reference canon
applies when one statute incorporates another
It doesnt apply when one statute incorporates
the common law And here they were
incorporating statutes
And if you look at those provisions
anyway theyre basically just instructions to
the executive branch when do you fingerprint
the people when theyre coming in What do you
do about that -- this detail or that detail
They dont go to the heart of the
matter at all And the heart of the matter
here is the immunity being conferred on these
international organizations
I just want to make a point about that
and then if I could talk about the
consequences that will ensue I think if we go
down the path that my friends on the other side
are suggesting
I think this is a critical point I
just want to make sure its clear Another
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reason why you shouldnt draw this equivalence
-- and it cant be that Congress really
intended to draw an equivalence between foreign
states and international organizations such
that they would just move in tandem no matter
what -- is that immunity is granted for
different reasons
The reason you give an international
organization immunity is a functional reason
not a status reason Its not about according
the appropriate respect to the sovereigns
because international organizations arent
sovereigns Theyre separate juridical
persons And whats quite clear -- its clear
from the U -- the San Francisco report on the
foundation of the UN its clear from the
Senate report in 1945 its clear from all the
commentators that we discussed in our brief
its clear from the Restatement of Foreign
Relations which weve cited in our brief that
you grant immunity to international
organizations so that they can carry out their
functions effectively And -- and just take -shy
let me take a minute and kind of elaborate on
that because I think its critical
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Remember these are -shy
CHIEF JUSTICE ROBERTS If you dont
mind Im afraid Im about five minutes behind
you here but going -- going back to your point
on 288f you said its there theyre decoupling
the international organizations and the foreign
sovereigns But as I go back and read it
its simply because the -- the foreign
sovereigns have the capability to use
reciprocity and the foreign -- and the
multi-country organizations do not
I dont -- I mean thats the
difference theyre drawing there not something
between the scope of the actual immunities
MR VERRILLI Well I -- well the
way I read it Mr Chief Justice is what -shy
what theyre doing there is saying even in a
situation in which the United States concludes
that it wont afford a foreign sovereign the
full virtually absolute immunity because of
reciprocity in other words were not getting
it back from them even in that situation an
international organization of -- where those
sovereigns are members will still receive the
full level of immunity
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And so I think what that tells us is
that what Congress was trying to do in this
statute overall was prescribe a fixed
substantive standard not a floating standard
where the two things move in tandem So -- and
I -- I do think it supports that
And if I could just go back to the
functional point remember these are
collective bodies and members come together
they make -- they -- they take resources from
each of their own countries They put them
into these organizations They make collective
decisions about how to deploy those resources
And the point of the immunity here is
so that the courts of any country but
especially the host country which for the most
important organizations are going to be here in
the United States cant override the
collective judgments that they make about how
their resources would be deployed and what
conditions they ought to impose et cetera by
the intervention of domestic law in US courts
and cant redirect the funds that are put into
these organizations to pay massive class action
tort judgments because of course the member
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countries are contributing this money because
they believe its going to be put to the use
that the -- for example the development bank
the development bank decides it should be put
to not to pay massive tort judgments
And I think one place you see this
very clearly if you look at the report of the
San Francisco conference about the founding of
the UN the State Departments -shy
Departments response coming -- report coming
out of that conference specifically says this
It says of course the United Nations cant be
subject to the jurisdiction of any one state or
its courts
And its for exactly this reason And
the same thing is true generally Thats why
you give it not for functional reasons -- I
mean excuse me not for reasons of status but
for functional reasons
And I think a key -- another key
reason why you shouldnt be thinking about this
as a standard that evolves evolves now and
over time is that those functional reasons
dont evolve now and over time
CHIEF JUSTICE ROBERTS Well what
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about the point that most of the concerns you
have are going to be dealt with by the
requirement of a nexus to activity in the
United States as opposed to simply abroad
where the projects are funded
MR VERRILLI Yes I was gratified
to hear the United States say that but -- and
-- but I could just -- Ill answer Your Honors
question directly but I want to broaden it out
a little bit because I think what essentially
the United States is saying here is look the
statute leaves one with no choice but to apply
restrictive principles of immunity Youve got
to jump off that cliff but dont worry it
will be a soft landing because the FSIA will
take care of a lot of these problems
And I guess what I would say about
that is in the unlikely event you dont agree
with me I -shy
(Laughter)
MR VERRILLI -- I hope theyre
right But theres no guarantee that theyre
right
JUSTICE BREYER Are the -- are the
lending decisions which may be fairly detailed
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and may include dozens of conditions made
within the United States
MR VERRILLI Well yes I think
thats a big part of the problem and -shy
JUSTICE BREYER Is there -- are there
lawsuits that could say that there was
negligence in determining in a different
country who the persons were or the conditions
under which the money would be spent Is that
an American lawsuit saying what youve done
here is commit the act of negligence or failure
to be a fiduciary here
MR VERRILLI Thats this lawsuit
Thats this lawsuit Justice Breyer Thats
exactly what theyre alleging
CHIEF JUSTICE ROBERTS Well but I
mean is that consistent with our opinion in
the OBB case which I think -- if the complaint
is based the gravamen of the complaint not
specific steps along the way and that was the
issue we dealt with in that case
And I appreciate the fact that its
you know to some extent dependent on the facts
and particular allegations but it would seem
to me to require a lot more than simply the
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specific decisions I think where -- wheres
the gravamen or gravamen however you say it
with whats going on here
MR VERRILLI Well we would
certainly say its India of course
CHIEF JUSTICE ROBERTS Yeah
MR VERRILLI And if -- if we have to
defend ourselves on that basis we will But I
-- but I -- I think it -- it understates the
real concrete risk here And what Id like to
do to illustrate that if I could is first
talk about the organizations that are going to
be exposed in a way that they wouldnt be under
the law
And as Justice Breyer indicated
earlier its important to remember this has
been the law in the DC Circuit for decades
and theres -- and people have ordered their
affairs based on the assumption that there was
virtually absolute immunity
But with respect -- but with respect
to the consequences and the groups affected and
then the types of effects With respect to the
groups affected youve got entities like us
the multilateral development banks And
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Justice Breyers identified many of them
Now the -- the main ones are here
here in Washington DC and theyre making
their decisions here and I think critically
too there are billions of dollars of assets
here
Now were going to make the OBB
argument for sure and I hope we win if we have
to make the argument I hope we win But who
knows how courts are going to come out on that
issue
Were going to have a lot of fighting
about that There are probably going to be
matters of degree Theres certainly going to
be significant disincentives arising out of
that uncertainty
Theres a whole another group of
entities that unlike the banks at least have
articles of agreement where we can try and fall
back on those for alternative arguments of
immunity where their immunity depends entirely
on the statutory grant the International
Committee of the Red Cross the World Health
Organization the fund to fight -- the global
fund to fight AIDS and tuberculosis and
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malaria
They are all entirely dependent on the
IOIA for their immunities and those immunities
are drastically different after this And then
we do have the issue I think with some
organizations that we may even actually now be
out of our -- out of compliance with our treaty
commitments
Now whats going to happen Heres
what I think is going to happen and I think
this lawsuit helps you see it
Now the way -- the basis of this
lawsuit is the following IFC when it loans
money here its loaning money in -- in parts
of the world where private capital wont go
unless we go in there
And very often they have un-developed
legal systems and they certainly dont have
robust environmental protections or labor
protections So what the IFC has done is lien
into those put those kinds of environmental
standards and labor standards into its
agreements saying you want this money to do
this development project these are the
standards that youve got to live up to
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And -- and this lawsuit is that -shy
that the entity that we loan this money to
didnt live up to the standards and its our
fault And so were being sued here
Well its going to create -- if that
kind of a suit can go forward and hopefully it
wont be able to Mr Chief Justice but if it
can its certainly going to create an
extraordinary disincentive for organizations
like ours to lien into those kinds of standards
because were going to be hoist by our own
petard
Now weve also got a robust internal
accountability mechanism where if people think
something has gone wrong on one of our
projects they can come to us and they can say
-- they can say look theres a problem here
And they -- and we investigate We take
internal remedial measures if we find theres a
problem
Well you know the factual basis for
the lawsuit is the report of our internal
accountability process
So if they can just grab that and take
it into court and make it the basis for a class
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action tort lawsuit in which they can make a
claim for all this money its going to create
a powerful disincentive for us not to engage in
that kind of self-policing activity
And I would submit that you know
even if things ultimately work themselves out
under the FSIA and I hope they -- I hope we
dont have to deal with that but even if we
do its going to take a very long time There
are going to be a lot of difficult cases at the
margin There are going to be very serious
disincentives immediately
And conversely you know were a big
fat target here These organizations have lots
of money And of course foreign plaintiffs
want to sue here They can bring a class
action They get liberal discovery They can
get punitive damages They get all of these
advantages by suing here
So instead of suing the person that
actually injured them the power plant in
India they come here and sue us
And I really think what you are going
to see here is that this is just going to
become another version of the sorts of
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foreign-cubed lawsuits that the Court has been
concerned about under the Alien Tort Statute
where the international organization is just
going to be subbed in for the foreign defendant
and its going to be subbed in in a situation
where were going to have a very significant
pile of money
And if I could just close with this
thought -- Im just going to pick up on Justice
Breyers thought -- the law in the District of
Columbia where virtually all these
organizations have been housed are
headquartered has been virtually absent
immunity under DC circuit law for decades
Thats the standard everybody has been
operating on
Nobodys suggested that anything has
gone wrong under this statute that there are
any deleterious policy consequences that the
interests of the United States are adversely
affected in any way In fact if you look at
the amicus brief from the former Secretaries of
Treasury and State they think that the policy
of the government arguing now is going to
disrupt the United States ability to function
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effectively with these organizations
It has all been fine And -- but
theyre asking you essentially to repeat a
metaphor to jump off a cliff And hopefully
it will be a soft landing But we dont know
that And it could easily result in a lot of
disruption to the good work that these
organizations do
And I guess what I would suggest is
that if thats going to happen it ought to
happen through legislation Congress can look
at this Congress can change the law if it
wants to But this has been the law for a very
long time There is no evidence that it has
done anything other than work well
And therefore I think the Court
should affirm the DC Circuit Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Four minutes Mr Fisher
REBUTTAL ARGUMENT OF JEFFREY L FISHER
ON BEHALF OF THE PETITIONERS
MR FISHER Thank you Id like to
make four points and Id like to start with the
text of the statute itself and simply say when
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Mr Verrilli talks about the Neder Doctrine and
the Common Law Doctrine that you look at the
term a terms meaning at the time of
enactment Hes mixing apples and oranges
And I think all the citations in our
reply brief should make it absolutely clear
that theres a doctrine on the one hand that
talks about incorporating a body of law and
theres a doctrine on the other hand about
giving meaning to a specific term Were in
the former camp here
And as to the point about whether the
common law was evolving at the time two
things Well stand on the papers as to the
fact that it was somewhat in flux
But the more important point is even
if it werent in flux it wouldnt matter one
wit because the other side is making a
sweeping proposition which is any general
reference to common law is fixed in time
That would disrupt any number of
federal statutory regimes from the Federal
Tort Claims Act enacted the year after this
statute the Equal Access to Justice Act the
federal governments piracy statute Federal
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Rule of Evidence 501 I could go on and on
with federal statutory regimes that reference
the common law in exactly the same way the
statute does here
The Civil Rights Act of 1866 if you
want one more All of those would come out the
other way from this Courts jurisprudence and
from all the understanding if the other side is
right about statutory interpretation
So I think the only thing the other
side has is they have a bunch of policy points
to make for this Court
Now we dont think they should
control but let me answer them So first as
to our treaty obligations So one about at the
moment of enactment My friend kept saying
that there were various agreements in place
that required virtually absolute immunity
None of the agreements use those
words Instead what those agreements said is
that certain organizations were entitled to
immunity to allow them to perform their
necessary functions Thats a very different
thing than absolute immunity
And its very different because none
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of the organizations involved were performing
Justice Sotomayor commercial activities that
were essential to their core functions not the
UN not any of the other organizations
So we werent in breach of any treaty
rights And if you have any doubt on that I
would urge you to look to the federal
governments position then and now Its not
just a brief filed in this Court
It is the position that four different
Presidential Administrations have taken The
Carter Administration right after the FSIA was
passed the George H W Bush Administration
the Clinton Administration and now the Trump
Administration have all consistently held that
the FSIA rules are incorporated into the FSIA
Next on the floodgates concern I
explained earlier and I hope you will think
about the fact that while the core activities
of the IFC might be commercial activity not
all of the IFCs activities are and certainly
not all the activities of international
organizations are
But let me add one more thing My
friend talked about big lawsuits of ruinous
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liability Well theres two very easy ways to
control that
One is to the extent any claims are
on contracts they can write their own
contracts and negotiate their own contracts
As the Solicitor General points out they can
even deal with third-party beneficiaries in
their contracts if they choose
Secondly as to tort claims they can
and in fact commonly do indemnify themselves
against tort lawsuits In this very case
their agreement indemnifies them against any
judgment and all legal fees
So these organizations have every
manner of method to deal with any potential
liability And in fact they are which sort
of belies the suggestion that they think
theyre absolutely immune from lawsuit
Finally let me say one thing about
the so-called foreign cubed problem or the
facts of this case Now obviously we think
that we would satisfy the gravamen test They
have never made that argument And if they
want to make it we can -- we can have that
conversation in the lower courts
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But bear in mind what youre being
asked to do in this case is to announce a
categorical rule for all cases dealing with
international organizations
So my friend in the Solicitor
Generals Office talked about just regular tort
slip and fall cases and the like in the United
States Let me give you one other thing to
think about
Some international organizations
actually do their work in the United States
The border cooperation -- the Border
Environmental Cooperation Commission does
wastewater treatment plants in Texas and
California
I cant think of any reason why they
would be immune from those infrastructure
projects in a way that no private business or
public government would be
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1206 pm the case
was submitted)
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1 392151723 4122 4223 433
452 462 4718 4817 5220 57
allegations [1] 5624
alleging [1] 5615 B
1108 [2] 115 32 20 651824 allow [3] 2321 246 6522 back [22] 44 61420 10513 11
1206 [1] 6822 Absolutely [3] 3113 646 6718 allowed [1] 2610 17 154422 172425 1911 226
1602 [1] 1412 Access [1] 6424 allows [3] 231220 242 4425 4524 4610 4720 5247
17-1011 [1] 34 accident [1] 2615 almost [2] 719 253 22 537 5820
1866 [1] 655 accompanying [1] 4111 already [4] 311521 323 4118 backwards [4] 514 23161724
1904 [2] 614 1725 accomplish [1] 4913 alternative [1] 5820 bad [1] 1416
1934 [1] 49 according [2] 1817 5110 Altmann [1] 1318 bank [13] 719 81822 98 2716
1945 [17] 1013 142025 151213 accountability [2] 601423 amended [1] 1615 283455 3022 324 5434
15 1617 331 3522 36710 374 accumulated [1] 3514 American [3] 112 3721 5610 banks [9] 88910 271415 2911
388 3911 4216 437 5117 across [1] 1025 amicus [4] 122 27 2011 6222 3021 5725 5818
1946 [1] 3914 Act [15] 320 6319 1412 1724 20 amounts [1] 2411 bare [1] 1524
1952 [4] 3618 3921 4012 415 422 212 301518 347 5611 64 anachronistic [3] 425 4415 47 bark [2] 405 4315
1970 [6] 3919 4013 415101520 2324 655 24 barred [2] 2689
1990s [1] 1221 action [3] 5324 61117 announce [1] 682 based [5] 2518 354 386 5619
1994 [1] 115 activities [11] 8517 195 2717 another [13] 323 144 167 1923 5719
2 2910 3122 4017 662192122 2122 378 3823 501625 5420 basic [1] 3413
20 [2] 28 2622
20-some [1] 2624
2018 [1] 111
21 [1] 3421
27 [1] 3717
288 [4] 2213 331 4616 4825
288a [3] 1915 2018 4823
288a(b [4] 2024 2111 2215 49
13
288a(d [1] 2110
288b [1] 343
288d [1] 1916
288d(a [1] 2110
288f [2] 4725 525
activity [23] 791820 81015 94
69 2551718 27182325 2914
17 3010 31211 322 553 614
6620
actors [1] 2912
acts [1] 216
actual [2] 457 5214
actually [4] 4111 596 6121 68
11
ad [1] 4612
add [3] 1424 2510 6624
addition [2] 2515 504
address [4] 417 78 2423 403
adjust [2] 1212 1720
Administration [4] 66121314
5817 6125
answer [11] 71122 10191920
1817 2514 451414 558 6514
answered [1] 436
antiquated [1] 1816
anybody [3] 3825 4014 4312
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APPEARANCES [1] 117
appendix [1] 481
apples [1] 644
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applies [5] 612 2216 341415 50
6
apply [7] 1010 161 1919 2215
basically [2] 1822 5011
basis [6] 4625 471 578 5912 60
2125
bear [1] 681
became [1] 3922
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8 6322
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better [1] 2019
3 15 2521 507 5512 between [2] 513 5214
3 [1] 24 Administrations [1] 1825 appreciate [1] 5622 beyond [2] 3712 3822
30 [1] 2622 Administrations [1] 6611 appropriate [1] 5111 big [5] 2223 3022 564 6113 66
31 [2] 111 4113 adopt [1] 4318 archives [1] 213 25
33 [1] 211 adopting [1] 47 area [2] 171618 billions [1] 585
4 adoption [1] 1610
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arent [1] 5112
argued [1] 92
bit [2] 363 5510
blue [1] 481
45 [1] 4421 advantages [1] 6119 arguing [1] 6224 bodies [1] 539
5 5 [1] 1612
501 [1] 651
527 [1] 3420
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argument [24] 114 225912 34
7 5111 625 1410 1914 2010
2213 2314 337 3521 3710 46
9 4822 5889 6321 6723
arguments [2] 416 5820
body [4] 32325 425 648
border [2] 681212
both [1] 2211
bounds [1] 1714
branch [11] 1024 1481318 151
6 affected [3] 572224 6221 arising [1] 5815 161924 398 4015 5012
63 [1] 214 affirm [1] 6317 Armed [1] 63 breach [1] 665
6a [1] 481 afford [2] 296 5219 articles [1] 5819 break [1] 493
8 afraid [2] 1625 523
Africa [1] 3023
Asia [1] 3023
Asian [1] 284
Bretten [2] 4325 441
BREYER [40] 43 513162022 6
80-some [1] 2623 African [1] 285 assets [1] 585 16 717 817 912 108 1117 12
A agencies [1] 3819
agree [3] 2018 253 5518
Assistant [1] 120
Association [1] 286
22 133 147 157 238111923
24259151821 2712 282914 am [2] 115 32
agreed [1] 294 assume [3] 1221 1711 222 301619 3147 4420 4515 467 ability [4] 12121315 6225
agreement [4] 282325 5819 67 assuming [1] 277 5524 56514 5715 able [7] 1023 2423 2513 264 32
12 assumption [2] 1223 5719 Breyers [4] 164 504 581 6210 20 458 607
agreements [5] 2821 5923 65 assurance [1] 318 brief [16] 618 115 364 377918 above-entitled [1] 113
171920 assure [3] 30619 4218 41121314 482 497 511820 abroad [1] 554
agricultural [1] 84 attenuated [1] 2523 6222 646 669 absent [1] 6213
AIDS [1] 5825 authority [7] 212425 2241114 briefs [1] 4522 absolute [33] 1922 201 22310
AL [1] 13 4619 475 bring [1] 6116 20 2610 282025 3215 331215
Alan [1] 1624 available [3] 11810 412 broaden [1] 559 21 34117 3524 361622 383
Alien [1] 622 BUDHA [1] 13
Heritage Reporting Corporation Sheet 1 1108 - BUDHA
70Official - Subject to Review
building [1] 2613
bunch [1] 6511
Bush [1] 6613
business [2] 1414 6818
businesses [1] 4422
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C California [2] 118 6815
call [1] 412
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canon [5] 159 165 1911 5055
capability [1] 529
capital [1] 5915
captures [1] 2718
Carcieri [1] 67
care [1] 5516
Career [1] 63
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Case [35] 34 4189 548 6236
88161718 9162025 14116
191 2117 2511 34182122 36
2 404 4724 561821 671121
6822122
case-by-case [2] 4612 471
cases [13] 413 61 92 158 1824
269 3415 4424 452020 6110
6837
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Certainly [7] 1313 402 575 58
14 5918 608 6621
cetera [4] 48699 5321
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characterization [2] 367 4512
charter [6] 2816 311920 3910
1125
Chase [1] 618
CHIEF [15] 339 20713 3349 34
24 52216 5425 5616 576 607
6318 6820
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Circuit [4] 1814 5717 6214 63
17
circumstances [1] 3224
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Civil [1] 655
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Claims [3] 6423 6739
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325 511414161719 646
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Clinton [1] 6614
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Columbia [1] 6211
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656
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541010
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4312 598
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11
Committee [1] 5823
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17
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Congress [36] 1023 1125 1224
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532 631112
Congresss [1] 1215
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6219
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Contoe [1] 1624
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19 40713 417
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CORPORATION [2] 16 35
correct [3] 136 1924 4725
correctly [2] 510 1822
couldnt [2] 2225 2923
counsel [4] 208 335 6319 6821
count [1] 2916
countries [3] 3623 5311 541
country [4] 399 531516 568
counts [1] 2914
couple [4] 241419 3114 4214
coupled [1] 315
course [9] 621 3422 352 3823
4123 5325 5412 575 6115
COURT [31] 1114 310 6824 15
1718 1824 2014 2721 3213 33
310 34131925 351715 361
131416 371 452324 6025 62
1 6316 6512 669
Courts [6] 523 1518 2520 4519
20 657
courts [9] 1423 2722 309 3218
531522 5414 5810 6725
create [4] 1121 6058 612
creates [1] 4617
Criminal [1] 63
critical [2] 5024 5125
critically [1] 584
Cross [1] 5823
crystal-clear [1] 2824
cubed [1] 6720
curiae [3] 122 28 2012
D DC [7] 1102124 2616 5717 58
3 6317
damages [1] 6118
date [1] 1723
dates [1] 613
day [1] 1817
DC [1] 6214
deal [10] 188 2021 2223 2425
3022 4025 4821 618 67715
dealing [1] 683
deals [1] 2123
dealt [3] 2819 552 5621
debates [1] 4314
decades [2] 5717 6214
decide [6] 527 913141923
decides [2] 1516 544
decision [3] 2520 342021
decisions [4] 5313 5525 571 58
4
decouples [1] 4813
decoupling [1] 525
decrease [1] 136
default [2] 126 1720
defend [1] 578
defendant [1] 624
degree [1] 5814
deleterious [1] 6219
denying [1] 315
Department [15] 121 56 917 18
25 198 2823 3525 36101214
402 4546 4611 472
Departments [2] 54910
dependent [2] 5623 592
depends [1] 5821
deploy [1] 5313
deployed [1] 5320
describe [1] 3615
described [1] 1510
describes [2] 3912 465
describing [1] 2218
designated [1] 2623
desperate [1] 443
detail [2] 501414
detailed [1] 5525
determination [2] 1415 4612
determining [1] 567
development [13] 271415 2845
56 2911 302124 5434 5725
5924
dichotomy [1] 1916
dictates [1] 3517
difference [1] 5213
differences [1] 493
different [20] 7323 97 171321
181 2111 3818 4020 4416 46
17 47811 517 567 594 6523
25 6610
difficult [1] 6110
diplomatic [2] 2222 418
diplomats [4] 4138 491018
direction [2] 3956
directly [2] 3122 559
discarded [1] 204
discovery [1] 6117
discussed [1] 5118
discusses [1] 114
discussing [1] 1917
discussion [1] 2017
disincentive [2] 609 613
disincentives [2] 5815 6112
dispute [3] 322 42 82
disputes [2] 261212
disrupt [2] 6225 6421
Heritage Reporting Corporation Sheet 2 building - disrupt
71Official - Subject to Review
disruption [1] 637
District [1] 6210
doctrine [8] 18581819 64127
9
dog [2] 405 4315
doing [5] 194 267 3625 4017 52
17
dollars [1] 585
domestic [3] 2612 3217 5322
DONALD [3] 124 210 337
done [3] 5610 5920 6315
doubt [2] 1913 666
doubts [2] 2511 264
down [5] 1722 182 1925 493 50
22
dozens [1] 561
draft [1] 203
drafting [2] 316 2119
drastically [1] 594
draw [2] 5113
drawing [1] 5213
driving [1] 2615
E each [3] 372324 5311
earlier [2] 5716 6618
easily [1] 636
easy [1] 671
effect [3] 61 364 382
effectively [2] 5123 631
effects [1] 5723
either [2] 94 156
elaborate [1] 5124
element [1] 355
eliminate [2] 259 476
ELLIS [31] 120 26 2091013 21
21 2212 23921 2447141719
23 2621 27481013 2881115
294820 3018 313613 328
employees [3] 214 2221 486
enact [1] 304
enacted [11] 1616 3225 3319 38
89 412325 42817 4621 6423
enacting [1] 4225
enactment [6] 75 17910 4410
644 6516
encourage [1] 3024
end [4] 425 358 421618
ended [1] 383
enforcement [1] 83
engage [3] 197 2724 613
enjoy [1] 58
enjoyed [2] 313 1210
enough [2] 2523 2921
ensue [1] 5021
ensured [1] 4220
enter [4] 3011212 329
entered [1] 2820
entire [1] 2021
entirely [3] 4617 5821 592
entities [3] 4423 5724 5818
entitled [3] 319 1922 6521
entity [1] 602
environmental [3] 591921 6813
Equal [1] 6424
equivalence [3] 4219 5113
equivalent [1] 424
era [2] 181819
especially [5] 324 1021 18419
5316
ESQ [6] 11824 2361013
essential [1] 663
essentially [3] 2124 5510 633
established [2] 351821
ET [5] 13 48699 5321
Even [30] 63 8816 107 1110 12
1620 1424 1816 19345 256
10 265 2714141415 361218
427 4815 521722 596 6168
6416 677
event [1] 5518
everybody [2] 4121 6215
everybodys [1] 277
everything [4] 96 1013 2534
evidence [3] 393 6314 651
evolve [4] 1620 431921 5424
evolves [2] 542222
evolving [2] 3313 6413
Ex [1] 1514
exact [2] 625 1916
exactly [8] 124 1714 237 3224
4211 5415 5615 653
example [6] 719 81 198 2412
3725 543
examples [2] 1025 3720
exception [5] 79 256 271925
349
excuse [1] 5418
executive [16] 1024 1481318
151161924 3410 398 4014
416 462025 475 5012
exemptions [2] 4848
exist [1] 194
existence [2] 4715 4810
expect [2] 4025
explained [3] 2722 497 6618
exposed [1] 5713
extent [3] 394 5623 673
extraordinary [1] 609
F face [2] 461423
fact [12] 2512 3123 393 464 47
13 487 5622 6221 6415 6619
671016
facts [3] 4418 5623 6721
factual [1] 6021
failed [1] 391
failure [1] 5611
fair [3] 366 373 4511
fairly [1] 5525
fall [4] 1911 2614 5819 687
far [4] 201719 437 458
fat [1] 6114
fault [1] 604
favor [2] 76 3112
federal [8] 1210 1823 642222
2525 652 667
fees [1] 6713
few [1] 723
fiduciary [1] 5612
fight [2] 582425
fighting [1] 5812
filed [3] 4114 473 669
Finally [1] 6719
FINANCE [2] 16 35
financial [2] 814 329
find [7] 2923 401415 4316 458
481 6019
fine [1] 632
fingerprint [1] 5012
first [10] 7123 102 1412 1610
1724 2324 351 5711 6514
FISHER [23] 118 2313 3679 5
12151721 10418 1381013 16
31321 173 4425 63202123
fisheries [1] 81
fit [2] 106 1520
five [3] 818 389 523
fixed [8] 212 2219 331216 495
6 533 6420
floating [1] 534
floodgate [1] 279
floodgates [3] 267 3116 6617
flux [6] 189 3523 361520 6415
17
focus [1] 3213
following [1] 5913
foolish [1] 1816
foreign [39] 3131819 7141518
812 97 1216 19720 219 234
9 2512 3219 3324 391622 42
2910 4320 489111425 4919
51319 52681019 6115 624
6720
foreign-cubed [1] 621
forever [1] 44
forgive [1] 1623
form [5] 1172123 1434
former [2] 6222 6411
forth [1] 4421
forward [8] 131424 142 2513
265 32314 606
foundation [1] 5116
founding [2] 620 548
Four [3] 632024 6610
Francisco [2] 5115 548
fraud [3] 342323 356
friend [6] 2016 2120 254 6516
6625 685
friends [7] 344 3920 4414 4510
468 4723 5022
front [2] 426 444
frozen [1] 2117
FSIA [10] 1411 15423 2718 297
5515 617 66121616
fulfill [3] 3320 422125
full [5] 354 4816 4918 522025
fully [1] 1023
function [1] 6225
functional [5] 519 538 541719
23
functions [3] 5123 6523 663
fund [2] 582425
funded [1] 555
funds [2] 196 5323
further [1] 332
future [1] 102
G gave [5] 517 124 349 382 4514
General [7] 120 322 113 1716
1811 6419 676
Generals [1] 686
generally [1] 5416
George [1] 6613
gets [1] 4820
getting [3] 923 148 5221
GINSBURG [5] 326 3520 4513
17 4821
Ginsburgs [1] 436
give [24] 56 61722 824 1018 11
21 1221115 131 15171920
3016 31814 3719 448 45415
4916 518 5417 688
given [10] 41 15122 175 1914
2211 3115 349 361
gives [4] 31117 812 1116
giving [1] 6410
Glad [1] 2423
global [1] 5824
gloss [1] 4413
goal [1] 1411
Gorsuch [6] 410 163142225
1813
got [9] 510 2317 289 467 4918
5513 5724 5925 6013
gotten [1] 3715
government [7] 127 318 3811
48911 6224 6819
governments [4] 92 4522 6425
668
governmental [1] 123
governments [11] 31319 812 9
1 12110 219 23410 2720 32
20
governs [1] 3511
grab [1] 6024
granddaddy [1] 4010
grant [8] 2023 2225 2313 246
4621 4816 5121 5822
granted [4] 4624 4878 516
granting [1] 4117
grants [2] 824 302
gratified [1] 556
gravamen [7] 25222425 5619
5722 6722
great [3] 188 2425 4025
gross [1] 4625
group [2] 710 5817
groups [2] 572224
guarantee [1] 5522
guess [6] 922 299 4213 4423
5517 639
H
Heritage Reporting Corporation Sheet 3 disruption - guess
72Official - Subject to Review
half [1] 2810 importing [1] 1419 11 595 56101314 591113 60122 61
hand [3] 4823 6479 impose [1] 5321 itself [7] 716 811 116 2416 372 1 6718
happen [4] 59910 631011 incentives [1] 142 4218 6325 lawsuits [5] 319 566 621 6625
hasten [1] 1424 include [1] 561 J 6711
headquarter [1] 1022 Including [1] 2711 lay [1] 1925
headquartered [4] 1022 2619 inconceivable [2] 43812 JAM [2] 13 34 lead [4] 153410 319
25 6213 incorporate [1] 3518 JEFFREY [5] 118 2313 37 63 least [4] 186 2410 497 5818
headquarters [2] 2615 292 incorporated [6] 325 72 169 33 21 leave [1] 420
Health [1] 5823 14 3423 6616 JONATHAN [3] 120 26 2010 leaves [1] 5512
hear [2] 33 557 incorporates [2] 5067 JR [2] 124 210 led [1] 449
heard [2] 4425 4822 incorporating [2] 509 648 judge [1] 1319 left [1] 2016
heart [2] 501516 incorporation [1] 4912 judgment [2] 4711 6713 legal [2] 5918 6713
heightened [1] 144 increase [1] 226 judgments [3] 531925 545 legislation [3] 813 175 6311
held [2] 309 6615 indeed [4] 427 187 203 Judiciary [2] 619 1724 legislative [1] 1119
helps [1] 5911 indemnifies [1] 6712 July [1] 388 lend [2] 423 2412
hewing [1] 3621 indemnify [1] 6710 jump [2] 5514 634 lending [8] 889101623 2719
historical [4] 393 441318 4512 India [4] 2623 575 6122 juridical [1] 5113 2910 5525
history [4] 316 1119 2119 2818 Indian [2] 47 68 jurisdiction [1] 5413 lends [1] 302
hoc [1] 4612 indicate [1] 3123 jurisprudence [2] 523 657 lens [1] 712
Hoffman [1] 1514 indicated [1] 5715 Justice [96] 121 339 4310 513 less [1] 229
hoist [1] 6011 indicators [1] 4720 162022 616 717 817 912 108 Letter [6] 361919 3921 403 437
hold [1] 3723 individualized [1] 1417 1117 121822 133591112 14 465
Honor [4] 2420 365 4024 494 individuals [3] 419 491017 67 156 1634142225 1812 20 level [3] 3719 387 5225
Honors [1] 558 infer [2] 351616 713 2121 238111923 24259 liability [2] 67116
hope [6] 5521 5889 6177 6618 infrastructure [1] 6817 151821 2617 272691111 28 liberal [1] 6117
hopefully [2] 606 634 initial [1] 4022 2914 2938 301619 3147 32 lien [2] 5920 6010
hornbook [1] 1010 injured [1] 6121 6 33410 34524 3520 3612 40 light [1] 3317
hornbooks [1] 43 injuries [1] 262 1619 42715 4356 4420 4513 limited [1] 1224
host [3] 2025 217 5316 inquiry [1] 358 1517 467 4721 4821 504 522 list [1] 3020
housed [1] 6212 insertion [1] 69 16 5425 5524 5651416 576 little [2] 102 5510
however [1] 572 instance [1] 2220 15 581 607 629 6318 6424 66 live [2] 5925 603
I instead [2] 6120 6520
institutions [2] 81823
2 6820
K loan [3] 820 2924 602
loaning [1] 5914 idea [4] 14816 1618 2618
identified [1] 581
IFC [10] 710 8111919 256 283
323 591320 6620
IFCs [2] 3120 6621
II [1] 446
illustrate [1] 5711
IMF [6] 283 302 37202525 388
immediately [2] 407 6112
immune [4] 215 252 6718 6817
immunities [19] 2025 2216 234
instructions [1] 5011
intended [2] 347 513
Inter-American [1] 284
interest [1] 1114
interests [1] 6220
interfere [1] 3110
internal [3] 60131922
INTERNATIONAL [37] 16 3511
17 422 72224 824 1025 1421
1921 2221 232 251 286 3222
3323 4010 421 4621 477 485
KAGAN [6] 2121 2938 42715
435
keeps [1] 4824
kept [1] 6516
key [2] 542020
kind [5] 825 453 5124 606 614
kinds [5] 716 2618 3820 5921
6010
knowing [1] 101
knows [2] 198 5810
loans [5] 2912131822 5913
lobby [1] 1023
locate [1] 1014
lock [1] 175
long [5] 45 1011 1322 619 63
14
look [32] 61315 724 911 108 13
18 168121416 1713 2021 21
19 2311 2817 311920 351 37
10 4111 4412 45119 4623 50
10 547 5511 6017 6221 6311 3815172121 391213 4118 131924 5018 51481221 526 L 642 667 4622 4848 49916 5214 5933 23 5822 623 6622 68410 labor [2] 591922 looked [4] 44 158 3020 4524
immunity [119] 312171820 419 Interpol [1] 83 landing [2] 5515 635 looking [2] 3523 212425 559 9152125 1024 interpret [1] 1017 language [8] 1017 1518 202 21 looks [3] 3618 3812 4313 11672123 1229911161925 interpretation [2] 3415 659 13 343 359 421215 lot [10] 2017 221 2814 319 446 13120 145141721 15219 16 interpreted [1] 343 last [1] 49 5516 5625 5812 6110 636 1 191922 20124 213925 223 interpreting [2] 619 359 late [1] 4120 lots [2] 420 6114 991922 2337131415 2436 intervention [1] 5322 later [3] 4916 3810 lower [3] 2722 309 6725 101125 259 26510 28152025
297 3025 3121 3251521 33 investigate [1] 6018
inviolable [1] 213
latter [1] 1717
Laughter [4] 172 2318 241 55 M
121522 3411117 3523 36110 involved [2] 149 661 20 made [10] 53 1223 1415 18910
15172224 37121319 3847 39 IOIA [21] 31115 11816 2023 22 law [46] 32425 61121 714 82 3924 469 4710 561 6723
215161722 411822 4223 434 17 2624 331120 3718 3869 1056 131516 1419 151212 mail [1] 3422
920 448 4525 463 47618 48 22 391 411921 4314 4410 46 15 1620 17151618 18567 21 main [1] 582
17 5017 516921 522025 53 18 498 593 14 3314 3515 3619 383 439 malaria [1] 591
14 5513 5720 582121 6214 65 ISMAIL [1] 13 20 4524 462 479 4911 508 53 managing [1] 81
182224 isnt [6] 1618 2513 31910 3711 22 571417 621014 631213 64 manner [1] 6715
important [5] 1324 502 5317 57 4419 281320 653 many [9] 413181818 725 1025
16 6416 isolation [1] 2020 laws [1] 306 2618 322 581
importantly [1] 257 issue [6] 1219 211116 5621 58 lawsuit [14] 1223 15225 4723 margin [1] 6111
Heritage Reporting Corporation Sheet 4 half - margin
73Official - Subject to Review
market [2] 820 2918
massive [2] 5324 545
match [1] 4418
materiality [2] 3423 355
materials [4] 372 426 4413 45
12
matter [7] 113 1716 466 5016
16 515 6417
matters [1] 5814
mean [14] 4111213 64 914 248
251 371 4211 451819 5212
5418 5617
meaning [7] 179 3315 351518
22 64310
means [4] 524 3517 421620
meant [3] 64 223 2910
measure [1] 126
measures [1] 6019
mechanism [2] 4617 6014
member [1] 5325
members [3] 486 5224 539
mentioned [2] 1813 417
mess [1] 453
metaphor [1] 634
metes [1] 1714
method [1] 6715
might [2] 718 6620
mind [2] 523 681
minimum [1] 1524
minute [2] 3722 5124
minutes [2] 523 6320
mission [1] 444
mistake [1] 53
Mister [1] 293
mixed [1] 923
mixing [1] 644
modern [1] 1817
moment [5] 4115 105 3921 65
16
monetary [1] 411
money [14] 41223 820 2413 30
7 541 569 59141423 602 612
15 627
months [1] 389
morning [2] 2017 3116
most [6] 232 257 3316 4722 53
16 551
move [3] 3611 515 535
moving [1] 3623
much [5] 141 2517 3112 395 40
21
multi-country [1] 5211
multilateral [1] 5725
multinational [1] 2911
must [4] 251718 351616
N Nader [2] 341921
narrow [1] 4915
narrower [1] 499
nations [4] 418 397 4011 5412
natural [1] 354
nature [2] 123 2924
necessary [4] 1720 3510 3912
6523
Neder [1] 641
need [7] 1116 306 3124 3268
3712 4318
needed [2] 291 3823
negligence [2] 56711
negotiate [4] 1214 143 2825 67
5
negotiated [3] 115 1220 3914
never [1] 6723
New [1] 2616
next [2] 34 6617
nexus [2] 2517 553
nobody [2] 59 925
Nobodys [1] 6217
non-commercial [1] 85
none [3] 4411 651925
normal [1] 3414
nothing [3] 101 2411 404
notwithstanding [1] 487
Number [6] 242424 2713 3115
4424 6421
numbers [1] 2621
O OAS [4] 113 1221 282224
OBB [3] 2520 5618 587
objective [1] 4914
obligations [5] 332022 409 41
24 6515
obvious [1] 4624
obviously [2] 4710 6721
occurred [2] 2622
occurs [1] 2519
October [1] 111
Office [1] 686
officers [2] 214 2220
official [1] 215
officials [2] 192021
often [1] 5917
Okay [5] 512 2323 24518 467
old [1] 187
once [2] 4315 4620
one [47] 41823 5118 6217 819
1317 14369 1622 173 1868
1113 191218 211116 2424 25
10 273 3013 3118 3618 3812
4014 4313 4722 4823 4925 50
67 54613 5512 6015 64717
65615 6624 67319 688
ones [1] 329
one-way [1] 225
ones [1] 582
only [8] 423 62 2116 225 2810
296 417 6510
open [1] 3117
opening [1] 267
operating [1] 6216
opinion [4] 69 1624 3424 5617
opponents [2] 321 61
opportunity [1] 143
opposed [1] 554
opposite [3] 417 1345
oral [7] 114 2259 37 2010 337
oranges [1] 644
order [6] 292 306 3823 4620 47
15
ordered [1] 5718
Ordinarily [1] 296
ordinary [2] 610 117
Organization [16] 1124 1421 19
321 372021 4020 4118 4622
477 4819 519 5223 5824 623
organizations [1] 2614
organizations [56] 31218 422 7
2225 824 101421 1111422
214 2221 232 2518 261923
281319 3120 3222 3323 3711
4010 4219 4427 4851424 49
17 5018 5141222 52611 53
121724 5712 596 609 6114
6212 6318 6521 661423 67
14 68410
original [2] 1118 203
originally [1] 1616
other [41] 421 6225 77 8621
23 95 13125 141019 1715 18
21 1924 2113 224 23312 24
16 2912 3212 3446 3622 39
20 441114 4511 469 4723 50
22 5221 6315 64918 657810
664 688
others [2] 1221 324
otherwise [2] 3517 408
ought [5] 813 161 3624 5321
6310
ourselves [1] 578
out [19] 6810 1413 2416 2813
4089 4325 449 5122 5411 55
9 581015 5977 616 656 676
over [7] 1620 3024 3525 4319
21 542324
overall [2] 4916 533
override [1] 5318
own [10] 615 12131317 1518
2815 5311 6011 6745
P pm [1] 6822
package [1] 411
PAGE [5] 22 3420 3717 4113
481
papers [1] 6414
part [5] 1219 1411 2122 4322
564
Parte [1] 1514
particular [6] 916 178 341820
362 5624
particularly [1] 2118
partly [1] 1120
parts [1] 5914
party [5] 2724 2923 3011113
passage [2] 416 4314
passed [5] 525 813 1316 452
6613
past [3] 41215 92
path [1] 5022
pathway [1] 156
pathways [3] 119 1721 181
pay [2] 5324 545
people [4] 369 5013 5718 6014
percentage [1] 2812
perfect [1] 183
perform [1] 6522
performing [1] 661
perhaps [1] 3110
permissible [2] 623 1321
person [3] 2320 4316 6120
persons [2] 5114 568
pertinent [1] 1618
Peru [1] 1514
petard [1] 6012
Petitioners [10] 141923 24814
38 201219 6322
phrase [1] 2020
pick [4] 164 2015 376 629
picks [1] 281
pile [1] 627
piracy [1] 6425
place [3] 4712 546 6517
plain [2] 314 1913
plaintiff [1] 311
plaintiffs [1] 6115
plant [1] 6121
plants [1] 6814
please [3] 310 2014 3310
point [17] 1718 281222 297 34
19 35111 377 4023 501924
524 53814 551 641216
points [8] 166 3115 3945 504
6324 6511 676
policies [1] 142
policy [9] 1079151516 1418
621923 6511
political [1] 1418
politically [1] 1423
position [5] 1525 1822 4610 66
810
possibly [2] 38510
potential [1] 6715
power [2] 249 6121
powerful [1] 613
practical [2] 101920
practice [1] 296
precisely [1] 3718
prescribe [2] 495 533
prescribed [1] 4716
prescribes [1] 3311
present [1] 324
presented [1] 2515
President [9] 55 1225 136 225
24 2313 243 3410 4619
Presidents [3] 1212 2214 475
presidential [4] 2123 22411 66
11
pressure [1] 446
presumptively [1] 252
presupposes [1] 4714
pretty [1] 3022
principal [1] 1113
principle [1] 614
principles [1] 5513
Heritage Reporting Corporation Sheet 5 market - principles
74Official - Subject to Review
prior [1] 65 10 394 441225 4722 512 61 397 4510 5111 57212123 seen [1] 1520
private [12] 81421 2724 2912 23 respectfully [3] 366 373 4510 self-policing [1] 614
182223 3011113 5915 6818 reams [1] 61 Respondent [4] 1725 211 338 Senate [6] 123 41111516 4224
privileges [4] 233 4622 4848 reason [17] 109 1891012 1910 Respondents [1] 269 5117
probably [3] 815 93 5813 23 2212 3222 3319 4615 511 Respondents [2] 2112 236 sense [5] 183 221 247 3317 38
problem [8] 911 137 1420 3711 8910 541521 6816 response [3] 918 4024 5410 6
564 601720 6720 reasons [7] 1621 173 517 5417 responses [1] 2419 sensitivity [1] 4025
problems [2] 149 5516 181923 responsive [1] 1115 separate [2] 818 5113
process [4] 46511 479 6023 rebuild [1] 444 rest [1] 206 serious [3] 2511 263 6111
procure [1] 144 REBUTTAL [3] 212 206 6321 Restatement [1] 5119 set [3] 218 441 499
profit [1] 820 receive [3] 2222 2310 5224 restrictions [1] 304 sets [1] 212
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2124
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2224 324 3720 44555 5823
5915
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C O N T E N T S
ORAL ARGUMENT OF PAGE
JEFFREY L FISHER ESQ
On behalf of the Petitioners 3
ORAL ARGUMENT OF
JONATHAN ELLIS ESQ
For the United States as amicus
curiae supporting the Petitioners 20
ORAL ARGUMENT OF
DONALD B VERRILLI JR ESQ
On behalf of the Respondent 33
REBUTTAL ARGUMENT OF
JEFFREY L FISHER ESQ
On behalf of the Petitioners 63
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P R O C E E D I N G S
(1108 am)
CHIEF JUSTICE ROBERTS Well hear
argument next in Case 17-1011 Jam versus
International Finance Corporation
Mr Fisher
ORAL ARGUMENT OF JEFFREY L FISHER
ON BEHALF OF THE PETITIONERS
MR FISHER Mr Chief Justice and
may it please the Court
The IOIA gives international
organizations the same immunity from suit as
is enjoyed by foreign governments
The plain text of this provision
coupled with the structure of the IOIA and the
drafting history make clear that the same
immunity provision gives international
organizations the same immunity that foreign
governments are entitled to under the Foreign
Sovereign Immunity Act
Starting with the text my opponents
do not dispute that as a general rule when a
statutory provision refers to another body of
law especially as here in the present tense
that body of law is incorporated as of the
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moment of suit in any given case
And indeed they dont dispute -shy
JUSTICE BREYER So the hornbooks that
I looked up going back forever dont say
quite that They say thats true as long as
the changes are consistent with the purpose of
the adopting statute And indeed the Indian
case you know the word was now was it now
1934 or now later In the case we wrote last
term that Justice Gorsuch wrote the word was
monetary relief Does that mean as of the
past or does it mean what we call money relief
now I mean there are many cases like that
And here the word is is Does the
word is refer to the past is at the moment a
passage or later The two arguments that Id
like you to address that are opposite you are
one states do many things nations many many
things and so if we take immunity from them
for commercial things we leave lots of
immunity with them for those other things
But international organizations some
of them do only one thing lend money or the
equivalent And if we take immunity from them
thats the end of the immunity or close
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Thats one argument
The second is this If we decide
against you and weve made a mistake or along
comes a case where they really should have
immunity the President and the State
Department can give it to them
If we decide with you well if along
comes a case where they should enjoy the
immunity no nobody can do anything Did I
say that correctly Have you got the
argument -shy
MR FISHER Okay
JUSTICE BREYER -- or have I said it
backwards
MR FISHER No no no
JUSTICE BREYER Did I say it right
MR FISHER So I think you gave me
two things and then one before it which was
the statutory text
JUSTICE BREYER Yes Thats right
MR FISHER So let me start with the
statutory text Justice Breyer And the word
is in this Courts jurisprudence always
always means at the time of suit not at the
time the statute was passed And weve cited
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reams of cases to that effect My opponents
cite only one case on the other side thats an
Armed Career Criminal Act case Even there
is didnt mean at the time of suit it meant
at the time of the prior conviction So is
is on our side of this case
But in Carcieri which is the now
case the Indian case the Court went out of
its way in that opinion to say the insertion of
the word now takes us out of the ordinary
situation which is when the referenced law
applies at the time of suit And so you can
look at the Sutherland treatise which dates
back to 1904 on this principle
And look at its -- in -- in your own
case Justice Breyer I think if I was going to
give you one case it would be the Steamboat
versus Chase case we cite in our reply brief
Thats interpreting the Judiciary Act which
goes all the way back to the founding of
course and says where the common law is
competent to give a remedy such and such a
remedy is permissible
And in Steamboat the Court rejected
the exact argument the other side makes here
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which is first of all that the law had to be
incorporated at the time of suit and second of
all that there was something different about
the common law as to a statute at the time of
the enactment So all of the textual stuff is
in our favor
Now youve also asked me two other
questions and let me address them So starting
with the commercial activity exception as
applied to a group like the IFC when you
answer -- when you think of that question its
a question of how close you -- you put the lens
into whats going on here
So if you just take a foreign state as
the -- as the comparator here a foreign state
itself does all kinds of things Like you
said Justice Breyer they are not commercial
activity But a foreign state might have a
bank for example that does almost all
commercial activity
And so the same thing is true with
international organizations and let me answer
that in a few different steps So first of
all look at the sweep of international
organizations Many do things like regulation
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for example managing fisheries They do
things like dispute resolution law
enforcement Interpol They do scientific
research and agricultural research All of
those things are non-commercial activities on
the other side
Then you have the category the
special category of lending banks but even
within lending banks not all the things that
lending banks do are commercial activity The
IFC itself on its website talks about how it
gives advice to foreign governments about
legislation that ought to be passed regulating
financial transactions with the private sector
That is not probably commercial activity
And then even within lending
activities Justice Breyer just take the World
Bank it has five separate institutions Now
the IFC is on one side What the IFC does is
-- is loan money at market rates for profit for
private sector projects There are other
components of the World Bank and there are
other lending institutions that are
international organizations that give grants
for public works programs or that do the kind
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of spending that governments do And the
governments argued in past cases and we think
theyre probably right that that is not
commercial activity either
So when the other side says well
everything is commercial activity its no
different than the foreign state coming to this
and saying well if the Bank of Switzerland
does commercial activity then were -- were
stuck Well no no no its just how closely
you look at the problem
JUSTICE BREYER What about -- the
third was if we -- if we decide with you -- if
we decide against you see that would mean
there is sovereign immunity But there
shouldnt be in a particular case the State
Department can waive it and they have to be -shy
response
But if we decide for you and then
theres a case where there really shouldnt be
sovereign immunity or rather -- rather there
really should be I guess -- see thats what
Im getting mixed up You see if we decide
against you and they really should have
sovereign immunity in this case nobody can do
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anything So knowing nothing about the
future it seems a little safer the first
than the second
MR FISHER Well Im going to turn
back in a moment to the law and why that just
cant fit within the law but as to just the
policy question youre asking me even there -shy
JUSTICE BREYER Well you can look -shy
the reason I ask policy questions is because
the hornbook said yes apply it as of now as
long as its consistent with the purpose of the
statute And the purpose of the statute going
back to 1945 and the UN and everything was
to get these organizations to locate here
So its not just policy for policy
Its policy for purpose And purpose is tied
into how you interpret the language
MR FISHER So let me give you the
practical answer and then the purpose answer
On the practical answer
organizations especially if they want a
headquarter here or are headquartered here are
fully able to -- to lobby Congress or the
executive branch for special immunity And
there are many examples across international
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organizations
Take the Organization of American
States OAS And the solicitor general
discusses this in -- the organization in its
brief In 1994 it negotiated a special
immunity provision for itself to get more than
the ordinary restrictive form of immunity that
was available under the IOIA
So there are -- there are pathways
available and they have been used even more
so
Remember the United States as you
say has a -- has a sometimes principal
interest in these organizations So it is
quite responsive to them when they come and
say We need more than the IOIA gives us
But Justice Breyer let me turn back
to the -- the original purpose which was the
legislative history is quite clear on what the
purpose was As you say this was partly to
create a form of immunity to give some comfort
to these organizations But the question is
what form of immunity did they ask for and what
did they get
What they did is they came to Congress
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and said treat us like foreign governments
Give us immunity as Congress put it in a
Senate report of a governmental nature And
so what did Congress do It gave them exactly
what they asked for It said were going to
treat you as a default measure like a foreign
government
And remember the words of the
statute are same immunity Same immunity
as is enjoyed by federal governments So were
going to give you the same immunity subject to
the Presidents ability to just -- adjust it
and subject to your own ability and your own
treaty to negotiate for more and subject
thirdly to Congresss ability to give you some
immunity that you dont have even by way of
your own treaty
JUSTICE SOTOMAYOR Can we go to that
issue raised in part The special immunity I
know was even negotiated by the UN I think
in the 1990s and OAS and others but assume
that were in your regiment and Justice Breyer
made the assumption that if a lawsuit came to
us now under your theory and it was limited
immunity that the President or Congress could
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give immunity to the other side
I dont think so
JUSTICE BREYER No its the
opposite
JUSTICE SOTOMAYOR The opposite The
President cant decrease it correct So that
problem still remains with your -shy
MR FISHER Well -shy
JUSTICE SOTOMAYOR Yeah
MR FISHER -- I think it -- it may
or may not remain Justice Sotomayor
JUSTICE SOTOMAYOR Thats my -shy
MR FISHER Certainly we could -- we
would say we can go forward on this suit
because -- because there is no such law
If that law were passed youd have
two questions One is did Congress make it
retroactive And you look to Altmann to think
about how to judge the retroactivity of
immunity provisions And then if it were
retroactive whether that were permissible
But you know were a long way from
-- from that sort of a situation I think the
important thing going forward and this is I
think what the concern is on the other side
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is not so much about this case but about
incentives and policies going forward they
have every opportunity to negotiate in one form
or another or to procure a heightened form of
immunity
And Justice Sotomayor let me say one
more thing to you and Justice Breyer about you
know the idea of the executive branch getting
involved This is one of the problems I
submit with the other sides argument
Remember part of the goal of the FSIA
in the first section of the Act in Section 1602
is to get -- is to get the executive branch out
of the immunity business
Congress made the determination that
it was a bad idea to have every case turning on
individualized suggestions of immunity and
executive branch political policy And so the
other side by importing the common law of
1945 would reintroduce that problem into
international organization immunity in a way
that we dont think would be very good
politically or very workable in the courts
And Id hasten to add that even under
the rule of 1945 if the question were what
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does the executive branch think about any given
lawsuit or any given immunity for any given
type of suit that would just lead you right
back to the FSIA and it would lead you back to
the same conclusion that we submit to you here
So either pathway whether Justice
Breyer you start with the way youve always
looked at cases with the word is and the
word same and the reference canon that Ive
described and say all of those things lead you
to a time of suit rule or if you start with
the law of 1945 and say what was the law in
1945
Well Hoffman and -- in Ex Parte Peru
were clear that the law of 1945 was the
executive branch decides and its not for the
Court -- this is -- Im going to give you the
Courts own language -- its not for the Court
to give immunity where the executive branch has
not seen fit to give it
And if that were the test youd come
right back to where you -- where I started
here which is that the FSIA would control or
at the bare minimum the executive branch
position in this lawsuit on the type of
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immunity that ought to apply in this situation
would control So -shy
JUSTICE GORSUCH Mr Fisher if I can
pick up on Justice Breyers question The
reference canon I take all -- all of your
points but sometimes lets say we have a
statute that -- that refers to another statute
Usually we would look at the second
statute thats being incorporated as of the
time of -- of the adoption of the first
statute Right So if -- if this statute were
to say go look at Section 5 -shy
MR FISHER Right
JUSTICE GORSUCH -- we wouldnt look
at it the way its been subsequently amended
Wed look at it as it was originally enacted in
1945
Why isnt that -- that idea pertinent
here you know when we refer to a specific
law we dont take it to evolve over time
MR FISHER So for two reasons
Justice Gorsuch and one of them if youll
forgive me is going to be something you said
in the Alan Contoe opinion
JUSTICE GORSUCH I was afraid of
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that
(Laughter)
MR FISHER But for two reasons One
is Congress has a choice to make when it writes
legislation It can lock in a given rule by
setting a specific statutory provision and says
thats the rule we want just like if Congress
uses a particular word at the time of the
enactment the meaning of that word at the time
of enactment would be what Congress -- wed
assume Congress wanted
Or Congress could do something
different which is to say look were not
sure exactly of the metes and bounds of the
law Were just going to tie it to this other
area of law as a general matter And thats
what Congress did here It did the latter
So it took an area of law as a point
of reference and said Just use that as the
default rule and then adjust as necessary And
those are just two different pathways Congress
can go down
And they date as I said all the way
back to the First Judiciary Act there in the
Sutherland treatise all the way back to 1904
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and so theres just two different pathways
Congress can go down
And it makes perfect sense I think
in a situation like this especially where you
have a common law doctrine being referenced at
least a common law at the time and one that
was indeed not just any old common law
doctrine but one that was in a great deal of
flux at the time So it made every reason -shy
it made every good reason for Congress to have
a general reference not a specific one
And then the second reason Justice
Gorsuch is the one you mentioned sitting on
the Tenth Circuit which is that as time goes
by it becomes all the more stilted or
antiquated or even foolish sometimes to try to
answer questions in the modern day according to
what some bygone era doctrine would have
required and especially a bygone era doctrine
like this
If I understand the other sides
position correctly basically the question
theyre having -- they would want every federal
court to ask in these cases is what would the
Truman Administrations State Department have
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wanted to do in this case
And when you have things like this
which didnt even -- an organization that
didnt even exist at the time sometimes doing
activities that werent even contemplated at
the time things like sovereign wealth funds
which foreign sovereigns now engage in for
example who knows what the State Department
would have thought then
I think theres every reason then to
fall back on the reference canon And if I can
say one more thing before reserving my time if
you have any doubt about just the plain text
argument Ive given you I would urge you to
compare the text in Section 288a to the text -shy
Section 288d which has the exact dichotomy
that -- that Ive been discussing today
One subsection subsection (a) says
that the same immunity rules apply and
subsection (b) says that foreign officials -shy
Im sorry international organization officials
are entitled to absolute immunity
So this is yet another reason why if
the other side were correct and if Congress had
wanted to lay down the rule they did why would
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they not have just used the absolute immunity
language in subsection (b) of subsection (d)
and that indeed was the original draft of
this act that was discarded
So I could go on but Id rather save
the rest of my time for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Ellis
ORAL ARGUMENT OF JONATHAN ELLIS FOR
THE UNITED STATES AS AMICUS
CURIAE SUPPORTING THE PETITIONERS
MR ELLIS Mr Chief Justice and may
it please the Court
If I could Id just like to pick up
right where my friend left off Theres been a
lot of discussion so far this morning on the
text of Section 288a We agree that the
Petitioners have the far better reading of that
phrase in isolation but I think it really
settles the deal when you look at the entire
structure of the Act
The -- the IOIA doesnt just grant
immunity in Section 288a(b) but it provides a
whole host of immunities and it does it in two
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different ways In several different
provisions the Act sets a fixed rule of
immunity So archives are inviolable and
officers and employees of the organizations are
immune from suit with respect to their official
acts
And then there are a -- a host a
collection of three provisions that set the
immunity by reference to foreign governments
Theyre Section 288a(d) Section 288d(a) and
theres Section 288a(b) the one at issue here
Respondents concede that the
referential language in those other two
provisions do refer to the state of the law as
it is today
Its only the one thats at issue in
this case that they say was frozen We dont
see how that can be and thats particularly
true when you look at the drafting history that
my friend referred to
JUSTICE KAGAN Mr Ellis before you
get to that another part of the structure is
this provision that deals with presidential
authority and thats essentially a roll-back
authority of immunity
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Doesnt that make a lot more sense
that provision if you assume that Congress
meant for there to be absolute immunity In
other words the presidential authority is a
one-way ratchet The President can only under
this provision roll it back It cant increase
it
So to me if I -- if -- if -- if -shy
if the immunity -- if the immunity is less than
absolute you would think that they would have
given the presidential authority both ways
MR ELLIS Sure The reason that
argument doesnt work is because Section 288
the Presidents authority under that provision
doesnt just apply to Section 288a(b) It
applies to all of the immunities provided by
the IOIA
And as I was just describing some of
those are fixed immunity rules that are not
absolute And so for instance the officers
and employees of international organizations do
not receive diplomatic immunity That was a
big deal at the time
And -- and yet the President cant -shy
couldnt grant that up I think what that
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provision shows is that Congress wanted to
provide international organizations at most the
immunity from suit and other privileges of
immunities that foreign governments received
and not more so
And yet Respondents are here today
asking you for exactly that more immunity -shy
JUSTICE BREYER But on that -shy
MR ELLIS -- than foreign
governments receive
JUSTICE BREYER But look whatever
other things it refers to the provision allows
the President to waive immunity not to grant
immunity And your argument is they have
immunity Right
Do I have -- I get this backwards
This is the third time Ive got it backwards
(Laughter)
JUSTICE BREYER Sorry The provision
allows the person to be sued Is that right
MR ELLIS It does allow them to be
sued
JUSTICE BREYER Okay So I was
right I had it backwards the first time but
not the second not the third all right
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(Laughter)
JUSTICE BREYER It allows the
President to waive the immunity
MR ELLIS Thats right
JUSTICE BREYER Okay It doesnt
allow him to grant the immunity
MR ELLIS It does in a sense I
mean -shy
JUSTICE BREYER But the power to
waive the immunity at least in this section
amounts to nothing if they have no immunity
because for example all they do is lend
money
MR ELLIS So -- so a couple -shy
JUSTICE BREYER Thats -- thats -shy
and the other way it seems to work itself out
MR ELLIS Understood
JUSTICE BREYER Okay
MR ELLIS A couple responses to
that Your Honor
JUSTICE BREYER Thats the question
I think
MR ELLIS Glad to be able to address
that Number -- number one just to be clear
we -- they do have a great deal of immunity I
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mean foreign -- international organizations
and foreign states are presumptively immune
And I would agree with almost everything
that -- maybe everything that -- that my friend
said about why the commercial activity
exception even with regard to IFC and -- and
most -- more importantly with regard to the
vast sweep of these organizations is not going
to eliminate immunity
I would add one more is that even a
case like this we have serious doubts I
think -- we think in fact from what we know
this suit isnt going to be able to go forward
regardless of the answer to the question
presented because in addition to having -- to
being connected in some way to commercial
activity there must be a much stronger nexus
It must be based on commercial activity that
occurs in the United States
We think the Courts decision in OBB
makes clear that the way you apply that is to
ask Whats the gravamen of this suit Its
not enough to have some attenuated connection
but whats the gravamen
And the gravamen of this suit as we
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understand it is -- is tortious conduct that
occurred in India injuries that occurred in
India And we dont think -- we have serious
doubts that this is going to be able to go
forward even under restrictive immunity
And so we do not think that what were
doing is opening the floodgates here rather
that the sort of concerns that would be barred
-- cases that would be barred by Respondents
absolute rule of immunity and would be allowed
by ours are -- are sort of quintessential
domestic disputes contract disputes with your
contractor who renovated the building the slip
and fall at the -- at the organizations
headquarters or the driving accident on the
streets of New York and DC
JUSTICE SOTOMAYOR Do you have -- do
you have any idea about how many of these kinds
of organizations are headquartered in the
United States
MR ELLIS I think the numbers are in
the 20 to 30 range Theres about -- somewhere
80-some organizations that have been designated
for protection under IOIA and 20-some that have
-- I think are headquartered in the United
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States
JUSTICE SOTOMAYOR That are
commercial like this one
MR ELLIS No no no No I did
not -- no
JUSTICE SOTOMAYOR Were -shy
everybodys assuming -shy
MR ELLIS Right
JUSTICE SOTOMAYOR -- a floodgate
MR ELLIS Sure no There are -shy
JUSTICE SOTOMAYOR Including Justice
Breyer
MR ELLIS -- there are a number of
development banks but even then even -- even
the development banks even if you talk about
the World Bank its not clear that those
commercial activities are the sorts that the -shy
the FSIA captures with the commercial activity
exception Lending there is to sovereign
governments
And -- and as the Court has been -- as
lower courts have explained that sort of
commercial activity is not the sort that a
private party could engage in So its not the
sort that the commercial activity exception
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picks up
JUSTICE BREYER Well I -- I have the
IFC the IMF the World Bank the
Inter-American Development Bank the Asian
Development Bank the African Development Bank
the International Development Association So
I -shy
MR ELLIS Sure I -shy
JUSTICE BREYER -- Ive got -- thats
only half of them
MR ELLIS Thats -- that -- Im not
sure what percentage that is I want to point
out that some of those organizations -shy
JUSTICE BREYER There are a lot
MR ELLIS -- have their own immunity
provision in the -- in their charter And so
thats what we think -- if you look at the
history thats what -- thats how it has been
dealt with for organizations that require
absolute immunity Weve entered into
agreements
I would point again to the OAS
agreement where the State Department is just
crystal-clear that what OAS did in that
agreement was to negotiate absolute immunity
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because they thought thats what they needed in
order to put their headquarters here
JUSTICE KAGAN But Mister -shy
MR ELLIS We agreed to that and we
said But hey this is not our usual
practice Ordinarily we -- we afford only
restrictive immunity We point to the FSIA
JUSTICE KAGAN Mr Ellis I -- I
guess Im not sure I -- I quite understood what
you meant As to the core lending activities
of these multinational development banks in
other words making loans where private actors
would not make loans do you have a view as to
whether that counts as a commercial activity or
not
Did you say that that would not count
as a commercial activity because theyre making
loans that the -- that the private market would
not make
MR ELLIS No Im -- Im not saying
that its -- that its enough that theyre
making loans that a -- that a private -- they
couldnt find a private party to provide Im
saying if the nature of the loan is such that
its -- its not the sort of transaction that a
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private party would enter into so think about
the IMF that grants -- that lends to sovereigns
and they do so on the requirement that the
sovereign enact certain restrictions -shy
regulations and change their -- their -- their
laws in order to assure that they dont need
the money again
That is the sort of thing thats been
held by lower courts and weve advocated is
not a commercial activity Thats just not the
sort of transaction that a private party can
enter -- enter into Its not just that a
private party didnt Its that -- that no one
-- thats not something that you can do
Thats a sovereign act
JUSTICE BREYER But can you give
me -shy
MR ELLIS Or a quasi-sovereign act
JUSTICE BREYER -- anything to assure
me because when I looked through this list I
thought that there were development banks like
the World Bank which is a pretty big deal as
well as in Asia in Africa were trying to
encourage development all over the world and
suddenly by removing the sovereign immunity
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because the plaintiff will claim this is a
commercial activity
MR ELLIS So -- so -shy
JUSTICE BREYER And youre not
denying it
MR ELLIS And so -shy
JUSTICE BREYER So what is the
assurance that the government can give us that
this isnt going to lead to a lot of lawsuits
and this isnt going to interfere with perhaps
activity that the United States traditionally
has been very much in favor of
MR ELLIS Absolutely Let me -- let
me give you a couple things I think weve
given you a number of -- of points already this
morning as to why we dont think the floodgates
are going to open
If -- if theres one more Ill say
just look at the -- the charter of these
organizations Look at the IFCs charter
They already waive suit waive immunity for
suits going directly to their core activities
They -- they in fact indicate that they -shy
they need to waive suit in these suits
And so I -- I think when youre
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talking about what are the suits that are going
to come up under commercial activity many of
them are already going forward because the IFC
and the World Bank and others have waived their
immunity
JUSTICE GINSBURG And they need to
because
MR ELLIS They need to because no
ones going to enter into a financial
transaction with them if they -- they know they
cant sue if it -- if it goes south
The other thing -- I want to also
focus the Court on the -- on the suits that we
know are not going to go forward on the
absolute immunity side Were talking about
suits by -- by US citizens and residents
about domestic conduct and theyre seeking
redress in US courts
These are the suits that foreign
governments are -- are able to be sued on and
dont have immunity And we dont see any
reason why international organizations should
not also be subject to suit in those
circumstances and we think thats exactly what
the Congress was trying to do when it enacted
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Section 288 in 1945
If there are no -- no further
questions we ask the Court to reverse
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Verrilli
ORAL ARGUMENT OF DONALD B VERRILLI
ON BEHALF OF THE RESPONDENT
MR VERRILLI Thank you Mr Chief
Justice and may it please the Court
The IOIA prescribes a standard of
virtual absolute immunity that is fixed and not
evolving We know that because the text
incorporated common law terms that had a
settled meaning of virtually absolute immunity
and because a fixed standard makes the most
sense in light of the statutory context and
purpose
Now the reason that Congress enacted
the IOIA was to fulfill treaty obligations that
committed us to provide virtually absolute
immunity Those treaty obligations did not
commit us to treat international organizations
the same as foreign states were treated They
committed us to the substantive standard of
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virtually absolute immunity
And therefore if -- if -- if the
language in section 288b is interpreted in the
way my friends on the other side suggest -shy
JUSTICE SOTOMAYOR So why didnt
Congress say that the way it did in the other
provisions of this Act And if it intended
that in no change it could have said it and
given the very exception it gave which is that
the President or the executive could reduce
immunity which was the standard at the time
MR VERRILLI So let me start with
the basic question We think if the Court
applies the normal rules of construction that
it applies in statutory interpretation cases
that Congress did say that it was providing
virtually absolute immunity
And I think a case in particular that
I would point the Court to is the Nader
decision 527 US and in particular to page
21 of the Nader decision Thats a case -shy
that case of course was about whether mail
fraud and wire fraud incorporated a materiality
standard This is an opinion by Chief Justice
Rehnquist unanimous for the Court on this
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point The Court said first we look to the
text of course and when looking to the text
if we -- if -- and in looking to the text
based solely on a natural reading of the full
text materiality wouldnt be an element of the
fraud statute
And then the Court says But that
does not end the inquiry because in
interpreting statutory language theres a
necessary second step And this is -- Im
coming to the point that I think governs here
which is that it is a well-established rule of
construction a rule of construction that
where Congress uses terms that have accumulated
settled meaning under the common law a court
must infer must infer unless the statute
dictates otherwise that Congress means to
incorporate the established meaning of those
terms Now the -shy
JUSTICE GINSBURG What about the
argument that there wasnt an established
meaning in -- what was it -- 1945 that it -shy
the -- the status of the immunity was in flux
It had been absolute but then we were going
over -- the State Department was advising the
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court whether immunity should be given in a
particular case
MR VERRILLI Theres a bit of a
suggestion to that effect in the brief of the
United States Your Honor but I would
respectfully suggest that is not a fair
characterization of where things stood in 1945
at all
It is true that some people within the
State Department in 1945 thought that immunity
should move to a more restrictive standard but
the Justice Department would not even advance
that standard in this Court at the request of
the State Department and this Court did not
describe the immunity as being in flux This
Court said the standard was virtually absolute
immunity
If one looks even in 1952 at the Tate
Letter the Tate Letter didnt say the law was
in flux in the United States It said the
United States was hewing to the standard of
virtually absolute immunity but other
countries were moving towards a standard of
restrictive immunity and therefore we ought
to reconsider what were doing
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So I just -- I mean the Court can
read these materials for -- for itself but I
just respectfully do not think its a fair
consideration of where things stood in 1945 at
all
And then if I could Id like to pick
up on a related point that came up in the brief
of the United States Its another statement
in the brief of the United States and it came
up in argument today that look this really
isnt a problem because for those organizations
that need immunity that goes beyond the -- the
restrictive immunity weve always understood
that they get -- they can go get a special
statute and theyve gone and gotten special
statutes
The United States says on page 27 of
its brief precisely because the IOIA didnt
provide that level of immunity they give these
three examples IMF World Trade Organization
and Organization of American States
Id like to take a minute and go
through each of them because it doesnt hold up
with respect to each of them With respect to
the IMF for example it is true the IMF you
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know it has a -- has a treaty There was a
statute that gave that treaty effect under US
law which ended up providing for absolute
immunity
But it cant possibly be that that was
undertaken based on any sense that the IOIA
didnt provide that level of immunity because
the IMF statute was enacted in July of 1945
and the IOIA wasnt enacted until five months
later So it cant possibly substantiate what
the government was saying
If one looks at the WTO treaty it is
true with respect to that treaty that it
committed us to a very wide scope of
immunities It said that the United -- that
the United States will commit to providing all
or virtually all of the immunities provided
under a whole different UN convention the
UN convention on specialized agencies
Now that convention has all kinds of
tax immunities and property immunities that go
way beyond what the IOIA provides So of
course they needed another statute in order to
make those treaty commitments That doesnt
prove anything about whether anybody thought
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that the IOIA failed to provide virtually
absolute immunity
In fact the historical evidence I
think really to the extent it points in any
direction it points very much more in our
direction And the best way to see that is
with respect to the way the United Nations was
treated under -- by the executive branch in
this country
Now we signed the UN charter in
1945 committed us to provide what the charter
describes as the necessary immunities Then
the UN Convention on Immunities was
negotiated in 1946 which said that the UN
should get virtually absolute immunity Not
the same immunity as foreign states virtually
absolute immunity
Now the United States did not ratify
that convention until 1970 So on the theory
that my friends on the other side have from
the moment of the Tate Letter in 1952 when
foreign state immunity became restrictive and
not virtually absolute anymore we were in
violation of the commitment we made in the UN
charter
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Now if that was true you would
certainly expect the State Department A to
address it in the Tate Letter but theres
nothing in there Its a classic case of the
dog that didnt bark And B you would expect
them to try to do something about it like get
the UN Convention ratified immediately
because otherwise we were going to be out of -shy
out of compliance with our obligations to the
granddaddy of all international organizations
the United Nations
But theres not a -- from 1952 until
the ratification of the Convention in 1970 you
cant find one word by anybody in the executive
branch ever saying that What you do find -shy
JUSTICE SOTOMAYOR What commercial
activities was the UN doing at that time
MR VERRILLI Well -shy
JUSTICE SOTOMAYOR I know today its
a very different organization but its not
clear to me that there was much going on that
was commercial at its initial stages
MR VERRILLI I take that point Your
Honor but what I would say in response is that
there was a very great deal of sensitivity
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about the whole package of -- of immunities
that were available to the UN and its
diplomats and its -- and its workers
And there was concern all along from
1952 to 1970 that -- that -- where the
executive was urging Congress to ratify the
convention but the only things ever mentioned
were the diplomats -- immunities for diplomatic
individuals
And then when you get to 1970 and you
actually look at the Senate report accompanying
the ratification this was not in our brief
but its at page 31 of the brief of the -- of
the scholars who filed the brief in support of
us It quotes the Senate report from 1970 and
what the Senate report says is were not
granting the UN any -- the UN as an
organization any immunity it didnt already
have under the IOIA
So as late as 1970 it was just quite
clear that everybody understood the IOIA
conferred virtually absolute immunity And of
course thats because it was -- it was enacted
to comply with our treaty obligations
It wasnt enacted to make sure that
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come what may that international organizations
would get treated the same as foreign states
That is -- you know thats the best way to
think about it is its just a completely
anachronistic way of thinking about the body of
materials in front of you
JUSTICE KAGAN But even what you just
said Mr Verrilli it wasnt enacted to make
sure that foreign organizations would get
treated the same as foreign states
I mean thats exactly what the
language of the thing says
MR VERRILLI Well so I guess a
couple of things about that I think the right
way to think about the language Justice Kagan
is that it was a means to an end in 1945 when
it was enacted
It was not the end in itself to assure
equivalence of treatment come what may It was
the means by which Congress ensured that it
would fulfill its treaty commitments which were
-- and those treaty commitments were to provide
virtually absolute immunity
And we know the Senate report says
were enacting this provision to fulfill our
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treaty commitments And our treaty
commitments again were not to treat them the
same They were to provide virtually absolute
immunity So -shy
JUSTICE KAGAN Do you think it was -shy
you answered Justice Ginsburgs questions about
how far we were from the Tate Letter in 1945
but do you think it was inconceivable to
Congress that the common law of immunity would
change
MR VERRILLI Well I -- I -- I cant
say that it would be inconceivable to anybody
but what I can say is if one looks at the
debates surrounding the passage of the IOIA
is once again its a dog that didnt bark
You cant find a single person
anywhere saying anything remotely like the
proposition that we need to adopt a standard
that will evolve over time because we have a
concern that foreign sovereign immunity law
will evolve over time
That just was not any part of
anybodys thinking at that time They were
trying -- you have to remember this is coming
out of the Bretten Woods system We have
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Bretten Woods We set up all these
organizations
They have a -- they have a desperate
mission in front of them to try to rebuild the
world -- the world after the carnage of World
War II Theres a lot of pressure on Congress
to get these organizations up and going and
give them the immunity we promised them so they
can go out and do their work Thats what led
to the enactment of the IOIA
It was none of these other things as
I said I really think if you look at the
historical materials its the -- the gloss
that my friends on the other side are trying to
put on it is completely anachronistic
Theyre taking a different concept
that theyve come up with now and trying to
retrofit the historical facts to match it and
it just isnt right
JUSTICE BREYER Is that -- is that -shy
the Russians at that time 45 and so forth
were putting all these businesses into state
entities So my guess is there were -- there
were a number of cases and what I thought I
heard Mr Fisher say is if we really go back
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and look at this well see that the status quo
before this passed was not absolute immunity
but the status quo was a kind of mess where
sometimes the State Department would say give
them immunity and sometimes the State
Department would say not
Now what is the actual situation as
far as youve been able to find it
MR VERRILLI Well I dont -shy
respectfully with respect to my friends on the
other side I dont think thats a fair
characterization of the historical materials
JUSTICE GINSBURG Thats the same -shy
the answer you gave to me is the answer you
would give to Justice Breyer
MR VERRILLI Yes
JUSTICE GINSBURG Same question
MR VERRILLI Yes I mean its just
not there I mean look at what this Courts
cases said This Courts cases didnt say
anything like that
The -- the -- the governments briefs
to this Court didnt say anything like that
When this Court has looked back on the law in
Verlinden and in Samantar it hadnt said
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anything like that It said the standard was a
common law standard of virtually absolute
immunity
And thats in fact how the Tate
Letter describes it too And then as a process
matter -shy
JUSTICE BREYER Okay I got it
MR VERRILLI -- my friends on the
other side have made this argument that well
our position would also require you to go back
to the process of the State Department making
an ad hoc case-by-case determination but
thats wrong too
And thats clear on the face of the
statute that its wrong And the reason -- and
-- and thats right in Section 288 This
creates an entirely different mechanism
What the -- what the IOIA says is that
-- that the President shall have the authority
under executive order once Congress has
enacted a statute to grant an international
organization the privileges and immunities
And if you look at the face of the
statute its obvious that they are granted on
a categorical basis in gross by an executive
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order not on a case-by-case basis by the State
Department when -- when a lawsuit is -- or when
a -- when a lawsuit is filed
And then similarly in terms of the
Presidents authority as to an executive order
to reduce or eliminate the -- the immunity of
an international organization that -- its -shy
again its completely different than the
situation that -- than the common law process
at work So obviously Congress made a
judgment that it was going to put a different
structure and system in place
And the fact that Congress did that I
do say -- I do think quite clearly presupposes
that theres a -- the existence of a
substantive standard being prescribed And the
substantive standard as I said is virtually
absolute immunity
And then in terms of the structural
indicators in the statutory text going back to
a question you asked Justice Sotomayor I
really think the most telling one to -- to
show you I think why my friends on the other
sides case is completely anachronistic and
were correct -- is Section 288f which you can
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find at page 6a of the appendix to the blue
brief
That provision says that the
privileges exemptions and immunities of
international organizations and then of -- of
members and employees et cetera shall be
granted notwithstanding the fact that similar
privileges exemptions and immunities granted
to a foreign government et cetera et cetera
may be conditioned upon the existence of
reciprocity by that foreign government
So right there in the text it
decouples the treatment of international
organizations from the treatment of foreign
states Even in a situation in which the
United States would not grant the full range of
virtually absolute immunity because it wasnt
being -- receiving reciprocal treatment this
statute says the international organization
gets it So -shy
JUSTICE GINSBURG How do you deal
with the argument that we just heard that we
can compare 288a on the one hand which -shy
which keeps the international organizations in
tune with foreign sovereigns and 288 -- was it
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b and d
MR VERRILLI Yes I do think that
the -- the differences break down into two
categories Your Honor There -- some of the
provisions do prescribe fixed standards
Thats true But those fixed standards as we
explained in our brief or at least tried to
are always situations in which the IOIA is
conferring a narrower set of immunities on -shy
on diplomats and individuals than the common
law would have at the time
So incorporation of the standard in
the way this 288a(b) did wouldnt accomplish
the objective there because there was -- they
were quite consciously trying to narrow the
overall scope of immunities and not give the
individuals who worked at these organizations
the same full treatment that diplomats got who
-- from foreign states
Now the second subcategory are the
provisions where the -- the statute says that
their -- the treatment shall be the same But
theres two things about that that are
significant
One is it says they shall be the same
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as under another statutory provision And as
we said we think thats vitally important
here We think its quite clear that in
addition to Justice Breyers points about the
reference canon that the reference canon
applies when one statute incorporates another
It doesnt apply when one statute incorporates
the common law And here they were
incorporating statutes
And if you look at those provisions
anyway theyre basically just instructions to
the executive branch when do you fingerprint
the people when theyre coming in What do you
do about that -- this detail or that detail
They dont go to the heart of the
matter at all And the heart of the matter
here is the immunity being conferred on these
international organizations
I just want to make a point about that
and then if I could talk about the
consequences that will ensue I think if we go
down the path that my friends on the other side
are suggesting
I think this is a critical point I
just want to make sure its clear Another
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reason why you shouldnt draw this equivalence
-- and it cant be that Congress really
intended to draw an equivalence between foreign
states and international organizations such
that they would just move in tandem no matter
what -- is that immunity is granted for
different reasons
The reason you give an international
organization immunity is a functional reason
not a status reason Its not about according
the appropriate respect to the sovereigns
because international organizations arent
sovereigns Theyre separate juridical
persons And whats quite clear -- its clear
from the U -- the San Francisco report on the
foundation of the UN its clear from the
Senate report in 1945 its clear from all the
commentators that we discussed in our brief
its clear from the Restatement of Foreign
Relations which weve cited in our brief that
you grant immunity to international
organizations so that they can carry out their
functions effectively And -- and just take -shy
let me take a minute and kind of elaborate on
that because I think its critical
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Remember these are -shy
CHIEF JUSTICE ROBERTS If you dont
mind Im afraid Im about five minutes behind
you here but going -- going back to your point
on 288f you said its there theyre decoupling
the international organizations and the foreign
sovereigns But as I go back and read it
its simply because the -- the foreign
sovereigns have the capability to use
reciprocity and the foreign -- and the
multi-country organizations do not
I dont -- I mean thats the
difference theyre drawing there not something
between the scope of the actual immunities
MR VERRILLI Well I -- well the
way I read it Mr Chief Justice is what -shy
what theyre doing there is saying even in a
situation in which the United States concludes
that it wont afford a foreign sovereign the
full virtually absolute immunity because of
reciprocity in other words were not getting
it back from them even in that situation an
international organization of -- where those
sovereigns are members will still receive the
full level of immunity
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And so I think what that tells us is
that what Congress was trying to do in this
statute overall was prescribe a fixed
substantive standard not a floating standard
where the two things move in tandem So -- and
I -- I do think it supports that
And if I could just go back to the
functional point remember these are
collective bodies and members come together
they make -- they -- they take resources from
each of their own countries They put them
into these organizations They make collective
decisions about how to deploy those resources
And the point of the immunity here is
so that the courts of any country but
especially the host country which for the most
important organizations are going to be here in
the United States cant override the
collective judgments that they make about how
their resources would be deployed and what
conditions they ought to impose et cetera by
the intervention of domestic law in US courts
and cant redirect the funds that are put into
these organizations to pay massive class action
tort judgments because of course the member
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countries are contributing this money because
they believe its going to be put to the use
that the -- for example the development bank
the development bank decides it should be put
to not to pay massive tort judgments
And I think one place you see this
very clearly if you look at the report of the
San Francisco conference about the founding of
the UN the State Departments -shy
Departments response coming -- report coming
out of that conference specifically says this
It says of course the United Nations cant be
subject to the jurisdiction of any one state or
its courts
And its for exactly this reason And
the same thing is true generally Thats why
you give it not for functional reasons -- I
mean excuse me not for reasons of status but
for functional reasons
And I think a key -- another key
reason why you shouldnt be thinking about this
as a standard that evolves evolves now and
over time is that those functional reasons
dont evolve now and over time
CHIEF JUSTICE ROBERTS Well what
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about the point that most of the concerns you
have are going to be dealt with by the
requirement of a nexus to activity in the
United States as opposed to simply abroad
where the projects are funded
MR VERRILLI Yes I was gratified
to hear the United States say that but -- and
-- but I could just -- Ill answer Your Honors
question directly but I want to broaden it out
a little bit because I think what essentially
the United States is saying here is look the
statute leaves one with no choice but to apply
restrictive principles of immunity Youve got
to jump off that cliff but dont worry it
will be a soft landing because the FSIA will
take care of a lot of these problems
And I guess what I would say about
that is in the unlikely event you dont agree
with me I -shy
(Laughter)
MR VERRILLI -- I hope theyre
right But theres no guarantee that theyre
right
JUSTICE BREYER Are the -- are the
lending decisions which may be fairly detailed
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and may include dozens of conditions made
within the United States
MR VERRILLI Well yes I think
thats a big part of the problem and -shy
JUSTICE BREYER Is there -- are there
lawsuits that could say that there was
negligence in determining in a different
country who the persons were or the conditions
under which the money would be spent Is that
an American lawsuit saying what youve done
here is commit the act of negligence or failure
to be a fiduciary here
MR VERRILLI Thats this lawsuit
Thats this lawsuit Justice Breyer Thats
exactly what theyre alleging
CHIEF JUSTICE ROBERTS Well but I
mean is that consistent with our opinion in
the OBB case which I think -- if the complaint
is based the gravamen of the complaint not
specific steps along the way and that was the
issue we dealt with in that case
And I appreciate the fact that its
you know to some extent dependent on the facts
and particular allegations but it would seem
to me to require a lot more than simply the
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specific decisions I think where -- wheres
the gravamen or gravamen however you say it
with whats going on here
MR VERRILLI Well we would
certainly say its India of course
CHIEF JUSTICE ROBERTS Yeah
MR VERRILLI And if -- if we have to
defend ourselves on that basis we will But I
-- but I -- I think it -- it understates the
real concrete risk here And what Id like to
do to illustrate that if I could is first
talk about the organizations that are going to
be exposed in a way that they wouldnt be under
the law
And as Justice Breyer indicated
earlier its important to remember this has
been the law in the DC Circuit for decades
and theres -- and people have ordered their
affairs based on the assumption that there was
virtually absolute immunity
But with respect -- but with respect
to the consequences and the groups affected and
then the types of effects With respect to the
groups affected youve got entities like us
the multilateral development banks And
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Justice Breyers identified many of them
Now the -- the main ones are here
here in Washington DC and theyre making
their decisions here and I think critically
too there are billions of dollars of assets
here
Now were going to make the OBB
argument for sure and I hope we win if we have
to make the argument I hope we win But who
knows how courts are going to come out on that
issue
Were going to have a lot of fighting
about that There are probably going to be
matters of degree Theres certainly going to
be significant disincentives arising out of
that uncertainty
Theres a whole another group of
entities that unlike the banks at least have
articles of agreement where we can try and fall
back on those for alternative arguments of
immunity where their immunity depends entirely
on the statutory grant the International
Committee of the Red Cross the World Health
Organization the fund to fight -- the global
fund to fight AIDS and tuberculosis and
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malaria
They are all entirely dependent on the
IOIA for their immunities and those immunities
are drastically different after this And then
we do have the issue I think with some
organizations that we may even actually now be
out of our -- out of compliance with our treaty
commitments
Now whats going to happen Heres
what I think is going to happen and I think
this lawsuit helps you see it
Now the way -- the basis of this
lawsuit is the following IFC when it loans
money here its loaning money in -- in parts
of the world where private capital wont go
unless we go in there
And very often they have un-developed
legal systems and they certainly dont have
robust environmental protections or labor
protections So what the IFC has done is lien
into those put those kinds of environmental
standards and labor standards into its
agreements saying you want this money to do
this development project these are the
standards that youve got to live up to
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And -- and this lawsuit is that -shy
that the entity that we loan this money to
didnt live up to the standards and its our
fault And so were being sued here
Well its going to create -- if that
kind of a suit can go forward and hopefully it
wont be able to Mr Chief Justice but if it
can its certainly going to create an
extraordinary disincentive for organizations
like ours to lien into those kinds of standards
because were going to be hoist by our own
petard
Now weve also got a robust internal
accountability mechanism where if people think
something has gone wrong on one of our
projects they can come to us and they can say
-- they can say look theres a problem here
And they -- and we investigate We take
internal remedial measures if we find theres a
problem
Well you know the factual basis for
the lawsuit is the report of our internal
accountability process
So if they can just grab that and take
it into court and make it the basis for a class
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action tort lawsuit in which they can make a
claim for all this money its going to create
a powerful disincentive for us not to engage in
that kind of self-policing activity
And I would submit that you know
even if things ultimately work themselves out
under the FSIA and I hope they -- I hope we
dont have to deal with that but even if we
do its going to take a very long time There
are going to be a lot of difficult cases at the
margin There are going to be very serious
disincentives immediately
And conversely you know were a big
fat target here These organizations have lots
of money And of course foreign plaintiffs
want to sue here They can bring a class
action They get liberal discovery They can
get punitive damages They get all of these
advantages by suing here
So instead of suing the person that
actually injured them the power plant in
India they come here and sue us
And I really think what you are going
to see here is that this is just going to
become another version of the sorts of
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foreign-cubed lawsuits that the Court has been
concerned about under the Alien Tort Statute
where the international organization is just
going to be subbed in for the foreign defendant
and its going to be subbed in in a situation
where were going to have a very significant
pile of money
And if I could just close with this
thought -- Im just going to pick up on Justice
Breyers thought -- the law in the District of
Columbia where virtually all these
organizations have been housed are
headquartered has been virtually absent
immunity under DC circuit law for decades
Thats the standard everybody has been
operating on
Nobodys suggested that anything has
gone wrong under this statute that there are
any deleterious policy consequences that the
interests of the United States are adversely
affected in any way In fact if you look at
the amicus brief from the former Secretaries of
Treasury and State they think that the policy
of the government arguing now is going to
disrupt the United States ability to function
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effectively with these organizations
It has all been fine And -- but
theyre asking you essentially to repeat a
metaphor to jump off a cliff And hopefully
it will be a soft landing But we dont know
that And it could easily result in a lot of
disruption to the good work that these
organizations do
And I guess what I would suggest is
that if thats going to happen it ought to
happen through legislation Congress can look
at this Congress can change the law if it
wants to But this has been the law for a very
long time There is no evidence that it has
done anything other than work well
And therefore I think the Court
should affirm the DC Circuit Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Four minutes Mr Fisher
REBUTTAL ARGUMENT OF JEFFREY L FISHER
ON BEHALF OF THE PETITIONERS
MR FISHER Thank you Id like to
make four points and Id like to start with the
text of the statute itself and simply say when
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Mr Verrilli talks about the Neder Doctrine and
the Common Law Doctrine that you look at the
term a terms meaning at the time of
enactment Hes mixing apples and oranges
And I think all the citations in our
reply brief should make it absolutely clear
that theres a doctrine on the one hand that
talks about incorporating a body of law and
theres a doctrine on the other hand about
giving meaning to a specific term Were in
the former camp here
And as to the point about whether the
common law was evolving at the time two
things Well stand on the papers as to the
fact that it was somewhat in flux
But the more important point is even
if it werent in flux it wouldnt matter one
wit because the other side is making a
sweeping proposition which is any general
reference to common law is fixed in time
That would disrupt any number of
federal statutory regimes from the Federal
Tort Claims Act enacted the year after this
statute the Equal Access to Justice Act the
federal governments piracy statute Federal
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Rule of Evidence 501 I could go on and on
with federal statutory regimes that reference
the common law in exactly the same way the
statute does here
The Civil Rights Act of 1866 if you
want one more All of those would come out the
other way from this Courts jurisprudence and
from all the understanding if the other side is
right about statutory interpretation
So I think the only thing the other
side has is they have a bunch of policy points
to make for this Court
Now we dont think they should
control but let me answer them So first as
to our treaty obligations So one about at the
moment of enactment My friend kept saying
that there were various agreements in place
that required virtually absolute immunity
None of the agreements use those
words Instead what those agreements said is
that certain organizations were entitled to
immunity to allow them to perform their
necessary functions Thats a very different
thing than absolute immunity
And its very different because none
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of the organizations involved were performing
Justice Sotomayor commercial activities that
were essential to their core functions not the
UN not any of the other organizations
So we werent in breach of any treaty
rights And if you have any doubt on that I
would urge you to look to the federal
governments position then and now Its not
just a brief filed in this Court
It is the position that four different
Presidential Administrations have taken The
Carter Administration right after the FSIA was
passed the George H W Bush Administration
the Clinton Administration and now the Trump
Administration have all consistently held that
the FSIA rules are incorporated into the FSIA
Next on the floodgates concern I
explained earlier and I hope you will think
about the fact that while the core activities
of the IFC might be commercial activity not
all of the IFCs activities are and certainly
not all the activities of international
organizations are
But let me add one more thing My
friend talked about big lawsuits of ruinous
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liability Well theres two very easy ways to
control that
One is to the extent any claims are
on contracts they can write their own
contracts and negotiate their own contracts
As the Solicitor General points out they can
even deal with third-party beneficiaries in
their contracts if they choose
Secondly as to tort claims they can
and in fact commonly do indemnify themselves
against tort lawsuits In this very case
their agreement indemnifies them against any
judgment and all legal fees
So these organizations have every
manner of method to deal with any potential
liability And in fact they are which sort
of belies the suggestion that they think
theyre absolutely immune from lawsuit
Finally let me say one thing about
the so-called foreign cubed problem or the
facts of this case Now obviously we think
that we would satisfy the gravamen test They
have never made that argument And if they
want to make it we can -- we can have that
conversation in the lower courts
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But bear in mind what youre being
asked to do in this case is to announce a
categorical rule for all cases dealing with
international organizations
So my friend in the Solicitor
Generals Office talked about just regular tort
slip and fall cases and the like in the United
States Let me give you one other thing to
think about
Some international organizations
actually do their work in the United States
The border cooperation -- the Border
Environmental Cooperation Commission does
wastewater treatment plants in Texas and
California
I cant think of any reason why they
would be immune from those infrastructure
projects in a way that no private business or
public government would be
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1206 pm the case
was submitted)
Heritage Reporting Corporation
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1 392151723 4122 4223 433
452 462 4718 4817 5220 57
allegations [1] 5624
alleging [1] 5615 B
1108 [2] 115 32 20 651824 allow [3] 2321 246 6522 back [22] 44 61420 10513 11
1206 [1] 6822 Absolutely [3] 3113 646 6718 allowed [1] 2610 17 154422 172425 1911 226
1602 [1] 1412 Access [1] 6424 allows [3] 231220 242 4425 4524 4610 4720 5247
17-1011 [1] 34 accident [1] 2615 almost [2] 719 253 22 537 5820
1866 [1] 655 accompanying [1] 4111 already [4] 311521 323 4118 backwards [4] 514 23161724
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1934 [1] 49 according [2] 1817 5110 Altmann [1] 1318 bank [13] 719 81822 98 2716
1945 [17] 1013 142025 151213 accountability [2] 601423 amended [1] 1615 283455 3022 324 5434
15 1617 331 3522 36710 374 accumulated [1] 3514 American [3] 112 3721 5610 banks [9] 88910 271415 2911
388 3911 4216 437 5117 across [1] 1025 amicus [4] 122 27 2011 6222 3021 5725 5818
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2 2910 3122 4017 662192122 2122 378 3823 501625 5420 basic [1] 3413
20 [2] 28 2622
20-some [1] 2624
2018 [1] 111
21 [1] 3421
27 [1] 3717
288 [4] 2213 331 4616 4825
288a [3] 1915 2018 4823
288a(b [4] 2024 2111 2215 49
13
288a(d [1] 2110
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288d(a [1] 2110
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69 2551718 27182325 2914
17 3010 31211 322 553 614
6620
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11
ad [1] 4612
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Administration [4] 66121314
5817 6125
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6
apply [7] 1010 161 1919 2215
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2125
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8 6322
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7 5111 625 1410 1914 2010
2213 2314 337 3521 3710 46
9 4822 5889 6321 6723
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6 affected [3] 572224 6221 arising [1] 5815 161924 398 4015 5012
63 [1] 214 affirm [1] 6317 Armed [1] 63 breach [1] 665
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8 afraid [2] 1625 523
Africa [1] 3023
Asia [1] 3023
Asian [1] 284
Bretten [2] 4325 441
BREYER [40] 43 513162022 6
80-some [1] 2623 African [1] 285 assets [1] 585 16 717 817 912 108 1117 12
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22 133 147 157 238111923
24259151821 2712 282914 am [2] 115 32
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agreement [4] 282325 5819 67 assuming [1] 277 5524 56514 5715 able [7] 1023 2423 2513 264 32
12 assumption [2] 1223 5719 Breyers [4] 164 504 581 6210 20 458 607
agreements [5] 2821 5923 65 assurance [1] 318 brief [16] 618 115 364 377918 above-entitled [1] 113
171920 assure [3] 30619 4218 41121314 482 497 511820 abroad [1] 554
agricultural [1] 84 attenuated [1] 2523 6222 646 669 absent [1] 6213
AIDS [1] 5825 authority [7] 212425 2241114 briefs [1] 4522 absolute [33] 1922 201 22310
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Alan [1] 1624 available [3] 11810 412 broaden [1] 559 21 34117 3524 361622 383
Alien [1] 622 BUDHA [1] 13
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70Official - Subject to Review
building [1] 2613
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Case [35] 34 4189 548 6236
88161718 9162025 14116
191 2117 2511 34182122 36
2 404 4724 561821 671121
6822122
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269 3415 4424 452020 6110
6837
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14 5918 608 6621
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1125
Chase [1] 618
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6318 6820
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Circuit [4] 1814 5717 6214 63
17
circumstances [1] 3224
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325 511414161719 646
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Committee [1] 5823
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17
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Congress [36] 1023 1125 1224
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Department [15] 121 56 917 18
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5316
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3725 543
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349
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671016
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481 6019
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fingerprint [1] 5012
first [10] 7123 102 1412 1610
1724 2324 351 5711 6514
FISHER [23] 118 2313 3679 5
12151721 10418 1381013 16
31321 173 4425 63202123
fisheries [1] 81
fit [2] 106 1520
five [3] 818 389 523
fixed [8] 212 2219 331216 495
6 533 6420
floating [1] 534
floodgate [1] 279
floodgates [3] 267 3116 6617
flux [6] 189 3523 361520 6415
17
focus [1] 3213
following [1] 5913
foolish [1] 1816
foreign [39] 3131819 7141518
812 97 1216 19720 219 234
9 2512 3219 3324 391622 42
2910 4320 489111425 4919
51319 52681019 6115 624
6720
foreign-cubed [1] 621
forever [1] 44
forgive [1] 1623
form [5] 1172123 1434
former [2] 6222 6411
forth [1] 4421
forward [8] 131424 142 2513
265 32314 606
foundation [1] 5116
founding [2] 620 548
Four [3] 632024 6610
Francisco [2] 5115 548
fraud [3] 342323 356
friend [6] 2016 2120 254 6516
6625 685
friends [7] 344 3920 4414 4510
468 4723 5022
front [2] 426 444
frozen [1] 2117
FSIA [10] 1411 15423 2718 297
5515 617 66121616
fulfill [3] 3320 422125
full [5] 354 4816 4918 522025
fully [1] 1023
function [1] 6225
functional [5] 519 538 541719
23
functions [3] 5123 6523 663
fund [2] 582425
funded [1] 555
funds [2] 196 5323
further [1] 332
future [1] 102
G gave [5] 517 124 349 382 4514
General [7] 120 322 113 1716
1811 6419 676
Generals [1] 686
generally [1] 5416
George [1] 6613
gets [1] 4820
getting [3] 923 148 5221
GINSBURG [5] 326 3520 4513
17 4821
Ginsburgs [1] 436
give [24] 56 61722 824 1018 11
21 1221115 131 15171920
3016 31814 3719 448 45415
4916 518 5417 688
given [10] 41 15122 175 1914
2211 3115 349 361
gives [4] 31117 812 1116
giving [1] 6410
Glad [1] 2423
global [1] 5824
gloss [1] 4413
goal [1] 1411
Gorsuch [6] 410 163142225
1813
got [9] 510 2317 289 467 4918
5513 5724 5925 6013
gotten [1] 3715
government [7] 127 318 3811
48911 6224 6819
governments [4] 92 4522 6425
668
governmental [1] 123
governments [11] 31319 812 9
1 12110 219 23410 2720 32
20
governs [1] 3511
grab [1] 6024
granddaddy [1] 4010
grant [8] 2023 2225 2313 246
4621 4816 5121 5822
granted [4] 4624 4878 516
granting [1] 4117
grants [2] 824 302
gratified [1] 556
gravamen [7] 25222425 5619
5722 6722
great [3] 188 2425 4025
gross [1] 4625
group [2] 710 5817
groups [2] 572224
guarantee [1] 5522
guess [6] 922 299 4213 4423
5517 639
H
Heritage Reporting Corporation Sheet 3 disruption - guess
72Official - Subject to Review
half [1] 2810 importing [1] 1419 11 595 56101314 591113 60122 61
hand [3] 4823 6479 impose [1] 5321 itself [7] 716 811 116 2416 372 1 6718
happen [4] 59910 631011 incentives [1] 142 4218 6325 lawsuits [5] 319 566 621 6625
hasten [1] 1424 include [1] 561 J 6711
headquarter [1] 1022 Including [1] 2711 lay [1] 1925
headquartered [4] 1022 2619 inconceivable [2] 43812 JAM [2] 13 34 lead [4] 153410 319
25 6213 incorporate [1] 3518 JEFFREY [5] 118 2313 37 63 least [4] 186 2410 497 5818
headquarters [2] 2615 292 incorporated [6] 325 72 169 33 21 leave [1] 420
Health [1] 5823 14 3423 6616 JONATHAN [3] 120 26 2010 leaves [1] 5512
hear [2] 33 557 incorporates [2] 5067 JR [2] 124 210 led [1] 449
heard [2] 4425 4822 incorporating [2] 509 648 judge [1] 1319 left [1] 2016
heart [2] 501516 incorporation [1] 4912 judgment [2] 4711 6713 legal [2] 5918 6713
heightened [1] 144 increase [1] 226 judgments [3] 531925 545 legislation [3] 813 175 6311
held [2] 309 6615 indeed [4] 427 187 203 Judiciary [2] 619 1724 legislative [1] 1119
helps [1] 5911 indemnifies [1] 6712 July [1] 388 lend [2] 423 2412
hewing [1] 3621 indemnify [1] 6710 jump [2] 5514 634 lending [8] 889101623 2719
historical [4] 393 441318 4512 India [4] 2623 575 6122 juridical [1] 5113 2910 5525
history [4] 316 1119 2119 2818 Indian [2] 47 68 jurisdiction [1] 5413 lends [1] 302
hoc [1] 4612 indicate [1] 3123 jurisprudence [2] 523 657 lens [1] 712
Hoffman [1] 1514 indicated [1] 5715 Justice [96] 121 339 4310 513 less [1] 229
hoist [1] 6011 indicators [1] 4720 162022 616 717 817 912 108 Letter [6] 361919 3921 403 437
hold [1] 3723 individualized [1] 1417 1117 121822 133591112 14 465
Honor [4] 2420 365 4024 494 individuals [3] 419 491017 67 156 1634142225 1812 20 level [3] 3719 387 5225
Honors [1] 558 infer [2] 351616 713 2121 238111923 24259 liability [2] 67116
hope [6] 5521 5889 6177 6618 infrastructure [1] 6817 151821 2617 272691111 28 liberal [1] 6117
hopefully [2] 606 634 initial [1] 4022 2914 2938 301619 3147 32 lien [2] 5920 6010
hornbook [1] 1010 injured [1] 6121 6 33410 34524 3520 3612 40 light [1] 3317
hornbooks [1] 43 injuries [1] 262 1619 42715 4356 4420 4513 limited [1] 1224
host [3] 2025 217 5316 inquiry [1] 358 1517 467 4721 4821 504 522 list [1] 3020
housed [1] 6212 insertion [1] 69 16 5425 5524 5651416 576 little [2] 102 5510
however [1] 572 instance [1] 2220 15 581 607 629 6318 6424 66 live [2] 5925 603
I instead [2] 6120 6520
institutions [2] 81823
2 6820
K loan [3] 820 2924 602
loaning [1] 5914 idea [4] 14816 1618 2618
identified [1] 581
IFC [10] 710 8111919 256 283
323 591320 6620
IFCs [2] 3120 6621
II [1] 446
illustrate [1] 5711
IMF [6] 283 302 37202525 388
immediately [2] 407 6112
immune [4] 215 252 6718 6817
immunities [19] 2025 2216 234
instructions [1] 5011
intended [2] 347 513
Inter-American [1] 284
interest [1] 1114
interests [1] 6220
interfere [1] 3110
internal [3] 60131922
INTERNATIONAL [37] 16 3511
17 422 72224 824 1025 1421
1921 2221 232 251 286 3222
3323 4010 421 4621 477 485
KAGAN [6] 2121 2938 42715
435
keeps [1] 4824
kept [1] 6516
key [2] 542020
kind [5] 825 453 5124 606 614
kinds [5] 716 2618 3820 5921
6010
knowing [1] 101
knows [2] 198 5810
loans [5] 2912131822 5913
lobby [1] 1023
locate [1] 1014
lock [1] 175
long [5] 45 1011 1322 619 63
14
look [32] 61315 724 911 108 13
18 168121416 1713 2021 21
19 2311 2817 311920 351 37
10 4111 4412 45119 4623 50
10 547 5511 6017 6221 6311 3815172121 391213 4118 131924 5018 51481221 526 L 642 667 4622 4848 49916 5214 5933 23 5822 623 6622 68410 labor [2] 591922 looked [4] 44 158 3020 4524
immunity [119] 312171820 419 Interpol [1] 83 landing [2] 5515 635 looking [2] 3523 212425 559 9152125 1024 interpret [1] 1017 language [8] 1017 1518 202 21 looks [3] 3618 3812 4313 11672123 1229911161925 interpretation [2] 3415 659 13 343 359 421215 lot [10] 2017 221 2814 319 446 13120 145141721 15219 16 interpreted [1] 343 last [1] 49 5516 5625 5812 6110 636 1 191922 20124 213925 223 interpreting [2] 619 359 late [1] 4120 lots [2] 420 6114 991922 2337131415 2436 intervention [1] 5322 later [3] 4916 3810 lower [3] 2722 309 6725 101125 259 26510 28152025
297 3025 3121 3251521 33 investigate [1] 6018
inviolable [1] 213
latter [1] 1717
Laughter [4] 172 2318 241 55 M
121522 3411117 3523 36110 involved [2] 149 661 20 made [10] 53 1223 1415 18910
15172224 37121319 3847 39 IOIA [21] 31115 11816 2023 22 law [46] 32425 61121 714 82 3924 469 4710 561 6723
215161722 411822 4223 434 17 2624 331120 3718 3869 1056 131516 1419 151212 mail [1] 3422
920 448 4525 463 47618 48 22 391 411921 4314 4410 46 15 1620 17151618 18567 21 main [1] 582
17 5017 516921 522025 53 18 498 593 14 3314 3515 3619 383 439 malaria [1] 591
14 5513 5720 582121 6214 65 ISMAIL [1] 13 20 4524 462 479 4911 508 53 managing [1] 81
182224 isnt [6] 1618 2513 31910 3711 22 571417 621014 631213 64 manner [1] 6715
important [5] 1324 502 5317 57 4419 281320 653 many [9] 413181818 725 1025
16 6416 isolation [1] 2020 laws [1] 306 2618 322 581
importantly [1] 257 issue [6] 1219 211116 5621 58 lawsuit [14] 1223 15225 4723 margin [1] 6111
Heritage Reporting Corporation Sheet 4 half - margin
73Official - Subject to Review
market [2] 820 2918
massive [2] 5324 545
match [1] 4418
materiality [2] 3423 355
materials [4] 372 426 4413 45
12
matter [7] 113 1716 466 5016
16 515 6417
matters [1] 5814
mean [14] 4111213 64 914 248
251 371 4211 451819 5212
5418 5617
meaning [7] 179 3315 351518
22 64310
means [4] 524 3517 421620
meant [3] 64 223 2910
measure [1] 126
measures [1] 6019
mechanism [2] 4617 6014
member [1] 5325
members [3] 486 5224 539
mentioned [2] 1813 417
mess [1] 453
metaphor [1] 634
metes [1] 1714
method [1] 6715
might [2] 718 6620
mind [2] 523 681
minimum [1] 1524
minute [2] 3722 5124
minutes [2] 523 6320
mission [1] 444
mistake [1] 53
Mister [1] 293
mixed [1] 923
mixing [1] 644
modern [1] 1817
moment [5] 4115 105 3921 65
16
monetary [1] 411
money [14] 41223 820 2413 30
7 541 569 59141423 602 612
15 627
months [1] 389
morning [2] 2017 3116
most [6] 232 257 3316 4722 53
16 551
move [3] 3611 515 535
moving [1] 3623
much [5] 141 2517 3112 395 40
21
multi-country [1] 5211
multilateral [1] 5725
multinational [1] 2911
must [4] 251718 351616
N Nader [2] 341921
narrow [1] 4915
narrower [1] 499
nations [4] 418 397 4011 5412
natural [1] 354
nature [2] 123 2924
necessary [4] 1720 3510 3912
6523
Neder [1] 641
need [7] 1116 306 3124 3268
3712 4318
needed [2] 291 3823
negligence [2] 56711
negotiate [4] 1214 143 2825 67
5
negotiated [3] 115 1220 3914
never [1] 6723
New [1] 2616
next [2] 34 6617
nexus [2] 2517 553
nobody [2] 59 925
Nobodys [1] 6217
non-commercial [1] 85
none [3] 4411 651925
normal [1] 3414
nothing [3] 101 2411 404
notwithstanding [1] 487
Number [6] 242424 2713 3115
4424 6421
numbers [1] 2621
O OAS [4] 113 1221 282224
OBB [3] 2520 5618 587
objective [1] 4914
obligations [5] 332022 409 41
24 6515
obvious [1] 4624
obviously [2] 4710 6721
occurred [2] 2622
occurs [1] 2519
October [1] 111
Office [1] 686
officers [2] 214 2220
official [1] 215
officials [2] 192021
often [1] 5917
Okay [5] 512 2323 24518 467
old [1] 187
once [2] 4315 4620
one [47] 41823 5118 6217 819
1317 14369 1622 173 1868
1113 191218 211116 2424 25
10 273 3013 3118 3618 3812
4014 4313 4722 4823 4925 50
67 54613 5512 6015 64717
65615 6624 67319 688
ones [1] 329
one-way [1] 225
ones [1] 582
only [8] 423 62 2116 225 2810
296 417 6510
open [1] 3117
opening [1] 267
operating [1] 6216
opinion [4] 69 1624 3424 5617
opponents [2] 321 61
opportunity [1] 143
opposed [1] 554
opposite [3] 417 1345
oral [7] 114 2259 37 2010 337
oranges [1] 644
order [6] 292 306 3823 4620 47
15
ordered [1] 5718
Ordinarily [1] 296
ordinary [2] 610 117
Organization [16] 1124 1421 19
321 372021 4020 4118 4622
477 4819 519 5223 5824 623
organizations [1] 2614
organizations [56] 31218 422 7
2225 824 101421 1111422
214 2221 232 2518 261923
281319 3120 3222 3323 3711
4010 4219 4427 4851424 49
17 5018 5141222 52611 53
121724 5712 596 609 6114
6212 6318 6521 661423 67
14 68410
original [2] 1118 203
originally [1] 1616
other [41] 421 6225 77 8621
23 95 13125 141019 1715 18
21 1924 2113 224 23312 24
16 2912 3212 3446 3622 39
20 441114 4511 469 4723 50
22 5221 6315 64918 657810
664 688
others [2] 1221 324
otherwise [2] 3517 408
ought [5] 813 161 3624 5321
6310
ourselves [1] 578
out [19] 6810 1413 2416 2813
4089 4325 449 5122 5411 55
9 581015 5977 616 656 676
over [7] 1620 3024 3525 4319
21 542324
overall [2] 4916 533
override [1] 5318
own [10] 615 12131317 1518
2815 5311 6011 6745
P pm [1] 6822
package [1] 411
PAGE [5] 22 3420 3717 4113
481
papers [1] 6414
part [5] 1219 1411 2122 4322
564
Parte [1] 1514
particular [6] 916 178 341820
362 5624
particularly [1] 2118
partly [1] 1120
parts [1] 5914
party [5] 2724 2923 3011113
passage [2] 416 4314
passed [5] 525 813 1316 452
6613
past [3] 41215 92
path [1] 5022
pathway [1] 156
pathways [3] 119 1721 181
pay [2] 5324 545
people [4] 369 5013 5718 6014
percentage [1] 2812
perfect [1] 183
perform [1] 6522
performing [1] 661
perhaps [1] 3110
permissible [2] 623 1321
person [3] 2320 4316 6120
persons [2] 5114 568
pertinent [1] 1618
Peru [1] 1514
petard [1] 6012
Petitioners [10] 141923 24814
38 201219 6322
phrase [1] 2020
pick [4] 164 2015 376 629
picks [1] 281
pile [1] 627
piracy [1] 6425
place [3] 4712 546 6517
plain [2] 314 1913
plaintiff [1] 311
plaintiffs [1] 6115
plant [1] 6121
plants [1] 6814
please [3] 310 2014 3310
point [17] 1718 281222 297 34
19 35111 377 4023 501924
524 53814 551 641216
points [8] 166 3115 3945 504
6324 6511 676
policies [1] 142
policy [9] 1079151516 1418
621923 6511
political [1] 1418
politically [1] 1423
position [5] 1525 1822 4610 66
810
possibly [2] 38510
potential [1] 6715
power [2] 249 6121
powerful [1] 613
practical [2] 101920
practice [1] 296
precisely [1] 3718
prescribe [2] 495 533
prescribed [1] 4716
prescribes [1] 3311
present [1] 324
presented [1] 2515
President [9] 55 1225 136 225
24 2313 243 3410 4619
Presidents [3] 1212 2214 475
presidential [4] 2123 22411 66
11
pressure [1] 446
presumptively [1] 252
presupposes [1] 4714
pretty [1] 3022
principal [1] 1113
principle [1] 614
principles [1] 5513
Heritage Reporting Corporation Sheet 5 market - principles
74Official - Subject to Review
prior [1] 65 10 394 441225 4722 512 61 397 4510 5111 57212123 seen [1] 1520
private [12] 81421 2724 2912 23 respectfully [3] 366 373 4510 self-policing [1] 614
182223 3011113 5915 6818 reams [1] 61 Respondent [4] 1725 211 338 Senate [6] 123 41111516 4224
privileges [4] 233 4622 4848 reason [17] 109 1891012 1910 Respondents [1] 269 5117
probably [3] 815 93 5813 23 2212 3222 3319 4615 511 Respondents [2] 2112 236 sense [5] 183 221 247 3317 38
problem [8] 911 137 1420 3711 8910 541521 6816 response [3] 918 4024 5410 6
564 601720 6720 reasons [7] 1621 173 517 5417 responses [1] 2419 sensitivity [1] 4025
problems [2] 149 5516 181923 responsive [1] 1115 separate [2] 818 5113
process [4] 46511 479 6023 rebuild [1] 444 rest [1] 206 serious [3] 2511 263 6111
procure [1] 144 REBUTTAL [3] 212 206 6321 Restatement [1] 5119 set [3] 218 441 499
profit [1] 820 receive [3] 2222 2310 5224 restrictions [1] 304 sets [1] 212
programs [1] 825 received [1] 234 restrictive [8] 117 265 297 36 setting [1] 176
project [1] 5924 receiving [1] 4818 1124 3713 3922 5513 settled [2] 3315 3515
projects [4] 821 555 6016 6818 reciprocal [1] 4818 result [1] 636 settles [1] 2021
promised [1] 448 reciprocity [3] 4811 521021 retroactive [2] 131821 several [1] 211
property [1] 3821 reconsider [1] 3625 retroactivity [1] 1319 shall [4] 4619 486 492225
proposition [2] 4318 6419 Red [1] 5823 retrofit [1] 4418 shouldnt [4] 91620 511 5421
protection [1] 2624 redirect [1] 5323 reverse [1] 333 show [1] 4723
protections [2] 591920 redress [1] 3218 Rights [2] 655 666 shows [1] 231
prove [1] 3825 reduce [2] 3410 476 risk [1] 5710 side [20] 62625 8619 95 131
provide [9] 232 2923 3321 37 refer [3] 415 1619 2114 ROBERTS [9] 33 207 334 522 25 1419 1924 3215 344 3920
19 387 39111 4222 433 reference [10] 159 165 1719 18 5425 5616 576 6318 6820 4414 4511 469 5022 6418 65
provided [2] 2216 3817 11 1911 219 5055 6420 652 robust [2] 5919 6013 811
provides [2] 2024 3822 referenced [2] 611 185 roll [1] 226 sides [3] 1410 1821 4724
providing [3] 3416 38316 referential [1] 2113 roll-back [1] 2124 signed [1] 3910
provision [16] 3141723 116 17 referred [1] 2120 ruinous [1] 6625 significant [3] 4924 5815 626
6 2123 222614 2311219 28 refers [3] 323 167 2312 rule [13] 322 1425 1511 1757 similar [1] 487
16 4225 483 501 regard [2] 2567 20 1925 212 2610 351213 65 similarly [1] 474
provisions [8] 1320 212814 34 regardless [1] 2514 1 683 simply [4] 528 554 5625 6325
7 49521 5010 regiment [1] 1222 rules [4] 1919 2219 3414 6616 single [1] 4316
public [2] 825 6819 regimes [2] 6422 652 Russians [1] 4421 sitting [1] 1813
punitive [1] 6118 regular [1] 686 S situation [10] 611 1323 161 18
purpose [9] 46 101112161619 regulating [1] 813 4 457 479 4815 521822 625
111820 3318 regulation [1] 725 safer [1] 102 situations [1] 498
put [10] 712 122 292 4415 4711 regulations [1] 305 Samantar [1] 4525 slip [2] 2613 687
531123 5424 5921 Rehnquist [1] 3425 same [22] 3121618 721 1299 so-called [1] 6720
putting [1] 4422 reintroduce [1] 1420 11 1559 1919 3324 3916 422 soft [2] 5515 635
Q rejected [1] 624
related [1] 377
10 433 451317 49182225 54
16 653 solely [1] 354
Solicitor [4] 120 113 676 685 quasi-sovereign [1] 3018 Relations [1] 5120 San [2] 5115 548 sometimes [6] 1113 166 1816 question [13] 71112 107 1122 relief [2] 41112 satisfy [1] 6722 194 4545 1425 164 1822 2421 2514 34 remain [1] 1311 save [1] 205 somewhat [1] 6415 13 4517 4721 559 remains [1] 137 saying [11] 98 292024 3811 40 somewhere [1] 2622
questions [6] 78 109 1317 18 remedial [1] 6019 15 4317 5217 5511 5610 5923 sorry [2] 1921 2319 17 333 436 remedy [2] 62223 6516 sort [10] 1323 26811 27222325
quintessential [1] 2611 Remember [7] 1112 128 1411 says [17] 621 95 176 191820 2925 30811 6716 quite [9] 45 111519 299 4120 4324 521 538 5716 357 3717 4116 421224 4618 sorts [2] 2717 6125 4714 4915 503 5114 remotely [1] 4317 48319 492125 541112 SOTOMAYOR [16] 1218 1359
quo [2] 4513 removing [1] 3025 scholars [1] 4114 1112 146 2617 2726911 345 quotes [1] 4115 renovated [1] 2613 scientific [1] 83 401619 4721 662
R repeat [1] 633 scope [3] 3814 4916 5214 south [1] 3211
raised [1] 1219
range [2] 2622 4816
ratchet [1] 225
rates [1] 820
rather [4] 92121 205 267
ratification [2] 4013 4112
ratified [1] 407
ratify [2] 3918 416
read [3] 372 52716
reading [2] 2019 354
real [1] 5710
really [12] 54 9202224 2020 37
reply [2] 618 646
report [10] 123 41111516 4224
511517 54710 6022
request [1] 3613
require [3] 2819 4610 5625
required [2] 1819 6518
requirement [2] 303 553
research [2] 844
reserving [1] 1912
residents [1] 3216
resolution [1] 82
resources [3] 53101320
respect [10] 215 372424 3813
second [8] 52 72 103 168 18
12 2325 3510 4920
Secondly [1] 679
Secretaries [1] 6222
section [17] 141212 1612 1915
16 201824 21101011 221315
2410 331 343 4616 4725
sector [2] 81421
see [10] 9142223 2118 3221 39
6 451 546 5911 6124
seeking [1] 3217
seem [1] 5624
seems [2] 102 2416
Sovereign [11] 320 9152125 19
6 2719 3041525 4320 5219
sovereigns [8] 197 302 4825
511113 527924
special [6] 88 1024 115 1219
371415
specialized [1] 3819
specific [6] 1619 176 1811 56
20 571 6410
specifically [1] 5411
spending [1] 91
spent [1] 569
stages [1] 4022
Heritage Reporting Corporation Sheet 6 prior - stages
75Official - Subject to Review
stand [1] 6414
standard [20] 33111625 3411
24 361113162123 4318 4612
471617 4912 5344 5422 62
15
standards [7] 4956 59222225
60310
Stanford [1] 118
start [5] 521 15711 3412 6324
started [1] 1522
Starting [2] 321 78
State [23] 55 7141518 9716 18
25 198 2114 2823 3525 3610
14 3922 402 4422 4545 4611
471 54913 6223
statement [1] 378
STATES [39] 111522 27 418
11312 2011 25219 2620 271
3111 3324 3652021 378917
21 3816 391618 42210 4815
16 4919 514 5218 5318 5547
11 562 6220 68811
States [1] 6225
status [5] 3523 4513 5110 54
18
statute [32] 47 525 74 101212
129 167791111 35616 3715
382823 46152124 4819 49
21 5067 533 5512 62218 63
25 642425 654
statutes [2] 3716 509
statutory [13] 323 51922 176
3317 3415 359 4720 501 58
22 6422 6529
Steamboat [2] 61724
step [1] 3510
steps [2] 723 5620
still [2] 137 5224
stilted [1] 1815
stood [2] 367 374
streets [1] 2616
stronger [1] 2517
structural [1] 4719
structure [4] 315 2022 2122 47
12
stuck [1] 910
stuff [1] 75
subbed [2] 6245
subcategory [1] 4920
subject [5] 12111314 3223 54
13
submit [3] 1410 155 615
submitted [2] 682123
subsection [5] 19181820 2022
subsequently [1] 1615
substantiate [1] 3810
substantive [4] 3325 471617 53
4
suddenly [1] 3025
sue [3] 3211 611622
sued [4] 232022 3220 604
suggest [3] 344 366 639
suggested [1] 6217
suggesting [1] 5023
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464
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581417 601719 6479 671
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4019
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67911 686
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Trade [1] 3720
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Treasury [1] 6223
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491822 6814
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597 6515 665
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true [9] 45 721 2119 369 3725
3813 401 496 5416
Truman [1] 1825
Trump [1] 6614
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17 4915 532
tuberculosis [1] 5825
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17321 181 2025 2113 49323
535 6413 671
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understates [1] 579
Understood [4] 2417 299 3713
4121
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UNITED [33] 111522 27 1112
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2124
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2224 324 3720 44555 5823
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P R O C E E D I N G S
(1108 am)
CHIEF JUSTICE ROBERTS Well hear
argument next in Case 17-1011 Jam versus
International Finance Corporation
Mr Fisher
ORAL ARGUMENT OF JEFFREY L FISHER
ON BEHALF OF THE PETITIONERS
MR FISHER Mr Chief Justice and
may it please the Court
The IOIA gives international
organizations the same immunity from suit as
is enjoyed by foreign governments
The plain text of this provision
coupled with the structure of the IOIA and the
drafting history make clear that the same
immunity provision gives international
organizations the same immunity that foreign
governments are entitled to under the Foreign
Sovereign Immunity Act
Starting with the text my opponents
do not dispute that as a general rule when a
statutory provision refers to another body of
law especially as here in the present tense
that body of law is incorporated as of the
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moment of suit in any given case
And indeed they dont dispute -shy
JUSTICE BREYER So the hornbooks that
I looked up going back forever dont say
quite that They say thats true as long as
the changes are consistent with the purpose of
the adopting statute And indeed the Indian
case you know the word was now was it now
1934 or now later In the case we wrote last
term that Justice Gorsuch wrote the word was
monetary relief Does that mean as of the
past or does it mean what we call money relief
now I mean there are many cases like that
And here the word is is Does the
word is refer to the past is at the moment a
passage or later The two arguments that Id
like you to address that are opposite you are
one states do many things nations many many
things and so if we take immunity from them
for commercial things we leave lots of
immunity with them for those other things
But international organizations some
of them do only one thing lend money or the
equivalent And if we take immunity from them
thats the end of the immunity or close
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Thats one argument
The second is this If we decide
against you and weve made a mistake or along
comes a case where they really should have
immunity the President and the State
Department can give it to them
If we decide with you well if along
comes a case where they should enjoy the
immunity no nobody can do anything Did I
say that correctly Have you got the
argument -shy
MR FISHER Okay
JUSTICE BREYER -- or have I said it
backwards
MR FISHER No no no
JUSTICE BREYER Did I say it right
MR FISHER So I think you gave me
two things and then one before it which was
the statutory text
JUSTICE BREYER Yes Thats right
MR FISHER So let me start with the
statutory text Justice Breyer And the word
is in this Courts jurisprudence always
always means at the time of suit not at the
time the statute was passed And weve cited
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reams of cases to that effect My opponents
cite only one case on the other side thats an
Armed Career Criminal Act case Even there
is didnt mean at the time of suit it meant
at the time of the prior conviction So is
is on our side of this case
But in Carcieri which is the now
case the Indian case the Court went out of
its way in that opinion to say the insertion of
the word now takes us out of the ordinary
situation which is when the referenced law
applies at the time of suit And so you can
look at the Sutherland treatise which dates
back to 1904 on this principle
And look at its -- in -- in your own
case Justice Breyer I think if I was going to
give you one case it would be the Steamboat
versus Chase case we cite in our reply brief
Thats interpreting the Judiciary Act which
goes all the way back to the founding of
course and says where the common law is
competent to give a remedy such and such a
remedy is permissible
And in Steamboat the Court rejected
the exact argument the other side makes here
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which is first of all that the law had to be
incorporated at the time of suit and second of
all that there was something different about
the common law as to a statute at the time of
the enactment So all of the textual stuff is
in our favor
Now youve also asked me two other
questions and let me address them So starting
with the commercial activity exception as
applied to a group like the IFC when you
answer -- when you think of that question its
a question of how close you -- you put the lens
into whats going on here
So if you just take a foreign state as
the -- as the comparator here a foreign state
itself does all kinds of things Like you
said Justice Breyer they are not commercial
activity But a foreign state might have a
bank for example that does almost all
commercial activity
And so the same thing is true with
international organizations and let me answer
that in a few different steps So first of
all look at the sweep of international
organizations Many do things like regulation
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for example managing fisheries They do
things like dispute resolution law
enforcement Interpol They do scientific
research and agricultural research All of
those things are non-commercial activities on
the other side
Then you have the category the
special category of lending banks but even
within lending banks not all the things that
lending banks do are commercial activity The
IFC itself on its website talks about how it
gives advice to foreign governments about
legislation that ought to be passed regulating
financial transactions with the private sector
That is not probably commercial activity
And then even within lending
activities Justice Breyer just take the World
Bank it has five separate institutions Now
the IFC is on one side What the IFC does is
-- is loan money at market rates for profit for
private sector projects There are other
components of the World Bank and there are
other lending institutions that are
international organizations that give grants
for public works programs or that do the kind
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of spending that governments do And the
governments argued in past cases and we think
theyre probably right that that is not
commercial activity either
So when the other side says well
everything is commercial activity its no
different than the foreign state coming to this
and saying well if the Bank of Switzerland
does commercial activity then were -- were
stuck Well no no no its just how closely
you look at the problem
JUSTICE BREYER What about -- the
third was if we -- if we decide with you -- if
we decide against you see that would mean
there is sovereign immunity But there
shouldnt be in a particular case the State
Department can waive it and they have to be -shy
response
But if we decide for you and then
theres a case where there really shouldnt be
sovereign immunity or rather -- rather there
really should be I guess -- see thats what
Im getting mixed up You see if we decide
against you and they really should have
sovereign immunity in this case nobody can do
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anything So knowing nothing about the
future it seems a little safer the first
than the second
MR FISHER Well Im going to turn
back in a moment to the law and why that just
cant fit within the law but as to just the
policy question youre asking me even there -shy
JUSTICE BREYER Well you can look -shy
the reason I ask policy questions is because
the hornbook said yes apply it as of now as
long as its consistent with the purpose of the
statute And the purpose of the statute going
back to 1945 and the UN and everything was
to get these organizations to locate here
So its not just policy for policy
Its policy for purpose And purpose is tied
into how you interpret the language
MR FISHER So let me give you the
practical answer and then the purpose answer
On the practical answer
organizations especially if they want a
headquarter here or are headquartered here are
fully able to -- to lobby Congress or the
executive branch for special immunity And
there are many examples across international
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organizations
Take the Organization of American
States OAS And the solicitor general
discusses this in -- the organization in its
brief In 1994 it negotiated a special
immunity provision for itself to get more than
the ordinary restrictive form of immunity that
was available under the IOIA
So there are -- there are pathways
available and they have been used even more
so
Remember the United States as you
say has a -- has a sometimes principal
interest in these organizations So it is
quite responsive to them when they come and
say We need more than the IOIA gives us
But Justice Breyer let me turn back
to the -- the original purpose which was the
legislative history is quite clear on what the
purpose was As you say this was partly to
create a form of immunity to give some comfort
to these organizations But the question is
what form of immunity did they ask for and what
did they get
What they did is they came to Congress
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and said treat us like foreign governments
Give us immunity as Congress put it in a
Senate report of a governmental nature And
so what did Congress do It gave them exactly
what they asked for It said were going to
treat you as a default measure like a foreign
government
And remember the words of the
statute are same immunity Same immunity
as is enjoyed by federal governments So were
going to give you the same immunity subject to
the Presidents ability to just -- adjust it
and subject to your own ability and your own
treaty to negotiate for more and subject
thirdly to Congresss ability to give you some
immunity that you dont have even by way of
your own treaty
JUSTICE SOTOMAYOR Can we go to that
issue raised in part The special immunity I
know was even negotiated by the UN I think
in the 1990s and OAS and others but assume
that were in your regiment and Justice Breyer
made the assumption that if a lawsuit came to
us now under your theory and it was limited
immunity that the President or Congress could
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give immunity to the other side
I dont think so
JUSTICE BREYER No its the
opposite
JUSTICE SOTOMAYOR The opposite The
President cant decrease it correct So that
problem still remains with your -shy
MR FISHER Well -shy
JUSTICE SOTOMAYOR Yeah
MR FISHER -- I think it -- it may
or may not remain Justice Sotomayor
JUSTICE SOTOMAYOR Thats my -shy
MR FISHER Certainly we could -- we
would say we can go forward on this suit
because -- because there is no such law
If that law were passed youd have
two questions One is did Congress make it
retroactive And you look to Altmann to think
about how to judge the retroactivity of
immunity provisions And then if it were
retroactive whether that were permissible
But you know were a long way from
-- from that sort of a situation I think the
important thing going forward and this is I
think what the concern is on the other side
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is not so much about this case but about
incentives and policies going forward they
have every opportunity to negotiate in one form
or another or to procure a heightened form of
immunity
And Justice Sotomayor let me say one
more thing to you and Justice Breyer about you
know the idea of the executive branch getting
involved This is one of the problems I
submit with the other sides argument
Remember part of the goal of the FSIA
in the first section of the Act in Section 1602
is to get -- is to get the executive branch out
of the immunity business
Congress made the determination that
it was a bad idea to have every case turning on
individualized suggestions of immunity and
executive branch political policy And so the
other side by importing the common law of
1945 would reintroduce that problem into
international organization immunity in a way
that we dont think would be very good
politically or very workable in the courts
And Id hasten to add that even under
the rule of 1945 if the question were what
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does the executive branch think about any given
lawsuit or any given immunity for any given
type of suit that would just lead you right
back to the FSIA and it would lead you back to
the same conclusion that we submit to you here
So either pathway whether Justice
Breyer you start with the way youve always
looked at cases with the word is and the
word same and the reference canon that Ive
described and say all of those things lead you
to a time of suit rule or if you start with
the law of 1945 and say what was the law in
1945
Well Hoffman and -- in Ex Parte Peru
were clear that the law of 1945 was the
executive branch decides and its not for the
Court -- this is -- Im going to give you the
Courts own language -- its not for the Court
to give immunity where the executive branch has
not seen fit to give it
And if that were the test youd come
right back to where you -- where I started
here which is that the FSIA would control or
at the bare minimum the executive branch
position in this lawsuit on the type of
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immunity that ought to apply in this situation
would control So -shy
JUSTICE GORSUCH Mr Fisher if I can
pick up on Justice Breyers question The
reference canon I take all -- all of your
points but sometimes lets say we have a
statute that -- that refers to another statute
Usually we would look at the second
statute thats being incorporated as of the
time of -- of the adoption of the first
statute Right So if -- if this statute were
to say go look at Section 5 -shy
MR FISHER Right
JUSTICE GORSUCH -- we wouldnt look
at it the way its been subsequently amended
Wed look at it as it was originally enacted in
1945
Why isnt that -- that idea pertinent
here you know when we refer to a specific
law we dont take it to evolve over time
MR FISHER So for two reasons
Justice Gorsuch and one of them if youll
forgive me is going to be something you said
in the Alan Contoe opinion
JUSTICE GORSUCH I was afraid of
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that
(Laughter)
MR FISHER But for two reasons One
is Congress has a choice to make when it writes
legislation It can lock in a given rule by
setting a specific statutory provision and says
thats the rule we want just like if Congress
uses a particular word at the time of the
enactment the meaning of that word at the time
of enactment would be what Congress -- wed
assume Congress wanted
Or Congress could do something
different which is to say look were not
sure exactly of the metes and bounds of the
law Were just going to tie it to this other
area of law as a general matter And thats
what Congress did here It did the latter
So it took an area of law as a point
of reference and said Just use that as the
default rule and then adjust as necessary And
those are just two different pathways Congress
can go down
And they date as I said all the way
back to the First Judiciary Act there in the
Sutherland treatise all the way back to 1904
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and so theres just two different pathways
Congress can go down
And it makes perfect sense I think
in a situation like this especially where you
have a common law doctrine being referenced at
least a common law at the time and one that
was indeed not just any old common law
doctrine but one that was in a great deal of
flux at the time So it made every reason -shy
it made every good reason for Congress to have
a general reference not a specific one
And then the second reason Justice
Gorsuch is the one you mentioned sitting on
the Tenth Circuit which is that as time goes
by it becomes all the more stilted or
antiquated or even foolish sometimes to try to
answer questions in the modern day according to
what some bygone era doctrine would have
required and especially a bygone era doctrine
like this
If I understand the other sides
position correctly basically the question
theyre having -- they would want every federal
court to ask in these cases is what would the
Truman Administrations State Department have
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wanted to do in this case
And when you have things like this
which didnt even -- an organization that
didnt even exist at the time sometimes doing
activities that werent even contemplated at
the time things like sovereign wealth funds
which foreign sovereigns now engage in for
example who knows what the State Department
would have thought then
I think theres every reason then to
fall back on the reference canon And if I can
say one more thing before reserving my time if
you have any doubt about just the plain text
argument Ive given you I would urge you to
compare the text in Section 288a to the text -shy
Section 288d which has the exact dichotomy
that -- that Ive been discussing today
One subsection subsection (a) says
that the same immunity rules apply and
subsection (b) says that foreign officials -shy
Im sorry international organization officials
are entitled to absolute immunity
So this is yet another reason why if
the other side were correct and if Congress had
wanted to lay down the rule they did why would
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they not have just used the absolute immunity
language in subsection (b) of subsection (d)
and that indeed was the original draft of
this act that was discarded
So I could go on but Id rather save
the rest of my time for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Ellis
ORAL ARGUMENT OF JONATHAN ELLIS FOR
THE UNITED STATES AS AMICUS
CURIAE SUPPORTING THE PETITIONERS
MR ELLIS Mr Chief Justice and may
it please the Court
If I could Id just like to pick up
right where my friend left off Theres been a
lot of discussion so far this morning on the
text of Section 288a We agree that the
Petitioners have the far better reading of that
phrase in isolation but I think it really
settles the deal when you look at the entire
structure of the Act
The -- the IOIA doesnt just grant
immunity in Section 288a(b) but it provides a
whole host of immunities and it does it in two
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different ways In several different
provisions the Act sets a fixed rule of
immunity So archives are inviolable and
officers and employees of the organizations are
immune from suit with respect to their official
acts
And then there are a -- a host a
collection of three provisions that set the
immunity by reference to foreign governments
Theyre Section 288a(d) Section 288d(a) and
theres Section 288a(b) the one at issue here
Respondents concede that the
referential language in those other two
provisions do refer to the state of the law as
it is today
Its only the one thats at issue in
this case that they say was frozen We dont
see how that can be and thats particularly
true when you look at the drafting history that
my friend referred to
JUSTICE KAGAN Mr Ellis before you
get to that another part of the structure is
this provision that deals with presidential
authority and thats essentially a roll-back
authority of immunity
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Doesnt that make a lot more sense
that provision if you assume that Congress
meant for there to be absolute immunity In
other words the presidential authority is a
one-way ratchet The President can only under
this provision roll it back It cant increase
it
So to me if I -- if -- if -- if -shy
if the immunity -- if the immunity is less than
absolute you would think that they would have
given the presidential authority both ways
MR ELLIS Sure The reason that
argument doesnt work is because Section 288
the Presidents authority under that provision
doesnt just apply to Section 288a(b) It
applies to all of the immunities provided by
the IOIA
And as I was just describing some of
those are fixed immunity rules that are not
absolute And so for instance the officers
and employees of international organizations do
not receive diplomatic immunity That was a
big deal at the time
And -- and yet the President cant -shy
couldnt grant that up I think what that
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provision shows is that Congress wanted to
provide international organizations at most the
immunity from suit and other privileges of
immunities that foreign governments received
and not more so
And yet Respondents are here today
asking you for exactly that more immunity -shy
JUSTICE BREYER But on that -shy
MR ELLIS -- than foreign
governments receive
JUSTICE BREYER But look whatever
other things it refers to the provision allows
the President to waive immunity not to grant
immunity And your argument is they have
immunity Right
Do I have -- I get this backwards
This is the third time Ive got it backwards
(Laughter)
JUSTICE BREYER Sorry The provision
allows the person to be sued Is that right
MR ELLIS It does allow them to be
sued
JUSTICE BREYER Okay So I was
right I had it backwards the first time but
not the second not the third all right
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(Laughter)
JUSTICE BREYER It allows the
President to waive the immunity
MR ELLIS Thats right
JUSTICE BREYER Okay It doesnt
allow him to grant the immunity
MR ELLIS It does in a sense I
mean -shy
JUSTICE BREYER But the power to
waive the immunity at least in this section
amounts to nothing if they have no immunity
because for example all they do is lend
money
MR ELLIS So -- so a couple -shy
JUSTICE BREYER Thats -- thats -shy
and the other way it seems to work itself out
MR ELLIS Understood
JUSTICE BREYER Okay
MR ELLIS A couple responses to
that Your Honor
JUSTICE BREYER Thats the question
I think
MR ELLIS Glad to be able to address
that Number -- number one just to be clear
we -- they do have a great deal of immunity I
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mean foreign -- international organizations
and foreign states are presumptively immune
And I would agree with almost everything
that -- maybe everything that -- that my friend
said about why the commercial activity
exception even with regard to IFC and -- and
most -- more importantly with regard to the
vast sweep of these organizations is not going
to eliminate immunity
I would add one more is that even a
case like this we have serious doubts I
think -- we think in fact from what we know
this suit isnt going to be able to go forward
regardless of the answer to the question
presented because in addition to having -- to
being connected in some way to commercial
activity there must be a much stronger nexus
It must be based on commercial activity that
occurs in the United States
We think the Courts decision in OBB
makes clear that the way you apply that is to
ask Whats the gravamen of this suit Its
not enough to have some attenuated connection
but whats the gravamen
And the gravamen of this suit as we
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understand it is -- is tortious conduct that
occurred in India injuries that occurred in
India And we dont think -- we have serious
doubts that this is going to be able to go
forward even under restrictive immunity
And so we do not think that what were
doing is opening the floodgates here rather
that the sort of concerns that would be barred
-- cases that would be barred by Respondents
absolute rule of immunity and would be allowed
by ours are -- are sort of quintessential
domestic disputes contract disputes with your
contractor who renovated the building the slip
and fall at the -- at the organizations
headquarters or the driving accident on the
streets of New York and DC
JUSTICE SOTOMAYOR Do you have -- do
you have any idea about how many of these kinds
of organizations are headquartered in the
United States
MR ELLIS I think the numbers are in
the 20 to 30 range Theres about -- somewhere
80-some organizations that have been designated
for protection under IOIA and 20-some that have
-- I think are headquartered in the United
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States
JUSTICE SOTOMAYOR That are
commercial like this one
MR ELLIS No no no No I did
not -- no
JUSTICE SOTOMAYOR Were -shy
everybodys assuming -shy
MR ELLIS Right
JUSTICE SOTOMAYOR -- a floodgate
MR ELLIS Sure no There are -shy
JUSTICE SOTOMAYOR Including Justice
Breyer
MR ELLIS -- there are a number of
development banks but even then even -- even
the development banks even if you talk about
the World Bank its not clear that those
commercial activities are the sorts that the -shy
the FSIA captures with the commercial activity
exception Lending there is to sovereign
governments
And -- and as the Court has been -- as
lower courts have explained that sort of
commercial activity is not the sort that a
private party could engage in So its not the
sort that the commercial activity exception
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picks up
JUSTICE BREYER Well I -- I have the
IFC the IMF the World Bank the
Inter-American Development Bank the Asian
Development Bank the African Development Bank
the International Development Association So
I -shy
MR ELLIS Sure I -shy
JUSTICE BREYER -- Ive got -- thats
only half of them
MR ELLIS Thats -- that -- Im not
sure what percentage that is I want to point
out that some of those organizations -shy
JUSTICE BREYER There are a lot
MR ELLIS -- have their own immunity
provision in the -- in their charter And so
thats what we think -- if you look at the
history thats what -- thats how it has been
dealt with for organizations that require
absolute immunity Weve entered into
agreements
I would point again to the OAS
agreement where the State Department is just
crystal-clear that what OAS did in that
agreement was to negotiate absolute immunity
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because they thought thats what they needed in
order to put their headquarters here
JUSTICE KAGAN But Mister -shy
MR ELLIS We agreed to that and we
said But hey this is not our usual
practice Ordinarily we -- we afford only
restrictive immunity We point to the FSIA
JUSTICE KAGAN Mr Ellis I -- I
guess Im not sure I -- I quite understood what
you meant As to the core lending activities
of these multinational development banks in
other words making loans where private actors
would not make loans do you have a view as to
whether that counts as a commercial activity or
not
Did you say that that would not count
as a commercial activity because theyre making
loans that the -- that the private market would
not make
MR ELLIS No Im -- Im not saying
that its -- that its enough that theyre
making loans that a -- that a private -- they
couldnt find a private party to provide Im
saying if the nature of the loan is such that
its -- its not the sort of transaction that a
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private party would enter into so think about
the IMF that grants -- that lends to sovereigns
and they do so on the requirement that the
sovereign enact certain restrictions -shy
regulations and change their -- their -- their
laws in order to assure that they dont need
the money again
That is the sort of thing thats been
held by lower courts and weve advocated is
not a commercial activity Thats just not the
sort of transaction that a private party can
enter -- enter into Its not just that a
private party didnt Its that -- that no one
-- thats not something that you can do
Thats a sovereign act
JUSTICE BREYER But can you give
me -shy
MR ELLIS Or a quasi-sovereign act
JUSTICE BREYER -- anything to assure
me because when I looked through this list I
thought that there were development banks like
the World Bank which is a pretty big deal as
well as in Asia in Africa were trying to
encourage development all over the world and
suddenly by removing the sovereign immunity
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because the plaintiff will claim this is a
commercial activity
MR ELLIS So -- so -shy
JUSTICE BREYER And youre not
denying it
MR ELLIS And so -shy
JUSTICE BREYER So what is the
assurance that the government can give us that
this isnt going to lead to a lot of lawsuits
and this isnt going to interfere with perhaps
activity that the United States traditionally
has been very much in favor of
MR ELLIS Absolutely Let me -- let
me give you a couple things I think weve
given you a number of -- of points already this
morning as to why we dont think the floodgates
are going to open
If -- if theres one more Ill say
just look at the -- the charter of these
organizations Look at the IFCs charter
They already waive suit waive immunity for
suits going directly to their core activities
They -- they in fact indicate that they -shy
they need to waive suit in these suits
And so I -- I think when youre
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talking about what are the suits that are going
to come up under commercial activity many of
them are already going forward because the IFC
and the World Bank and others have waived their
immunity
JUSTICE GINSBURG And they need to
because
MR ELLIS They need to because no
ones going to enter into a financial
transaction with them if they -- they know they
cant sue if it -- if it goes south
The other thing -- I want to also
focus the Court on the -- on the suits that we
know are not going to go forward on the
absolute immunity side Were talking about
suits by -- by US citizens and residents
about domestic conduct and theyre seeking
redress in US courts
These are the suits that foreign
governments are -- are able to be sued on and
dont have immunity And we dont see any
reason why international organizations should
not also be subject to suit in those
circumstances and we think thats exactly what
the Congress was trying to do when it enacted
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Section 288 in 1945
If there are no -- no further
questions we ask the Court to reverse
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Verrilli
ORAL ARGUMENT OF DONALD B VERRILLI
ON BEHALF OF THE RESPONDENT
MR VERRILLI Thank you Mr Chief
Justice and may it please the Court
The IOIA prescribes a standard of
virtual absolute immunity that is fixed and not
evolving We know that because the text
incorporated common law terms that had a
settled meaning of virtually absolute immunity
and because a fixed standard makes the most
sense in light of the statutory context and
purpose
Now the reason that Congress enacted
the IOIA was to fulfill treaty obligations that
committed us to provide virtually absolute
immunity Those treaty obligations did not
commit us to treat international organizations
the same as foreign states were treated They
committed us to the substantive standard of
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virtually absolute immunity
And therefore if -- if -- if the
language in section 288b is interpreted in the
way my friends on the other side suggest -shy
JUSTICE SOTOMAYOR So why didnt
Congress say that the way it did in the other
provisions of this Act And if it intended
that in no change it could have said it and
given the very exception it gave which is that
the President or the executive could reduce
immunity which was the standard at the time
MR VERRILLI So let me start with
the basic question We think if the Court
applies the normal rules of construction that
it applies in statutory interpretation cases
that Congress did say that it was providing
virtually absolute immunity
And I think a case in particular that
I would point the Court to is the Nader
decision 527 US and in particular to page
21 of the Nader decision Thats a case -shy
that case of course was about whether mail
fraud and wire fraud incorporated a materiality
standard This is an opinion by Chief Justice
Rehnquist unanimous for the Court on this
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point The Court said first we look to the
text of course and when looking to the text
if we -- if -- and in looking to the text
based solely on a natural reading of the full
text materiality wouldnt be an element of the
fraud statute
And then the Court says But that
does not end the inquiry because in
interpreting statutory language theres a
necessary second step And this is -- Im
coming to the point that I think governs here
which is that it is a well-established rule of
construction a rule of construction that
where Congress uses terms that have accumulated
settled meaning under the common law a court
must infer must infer unless the statute
dictates otherwise that Congress means to
incorporate the established meaning of those
terms Now the -shy
JUSTICE GINSBURG What about the
argument that there wasnt an established
meaning in -- what was it -- 1945 that it -shy
the -- the status of the immunity was in flux
It had been absolute but then we were going
over -- the State Department was advising the
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court whether immunity should be given in a
particular case
MR VERRILLI Theres a bit of a
suggestion to that effect in the brief of the
United States Your Honor but I would
respectfully suggest that is not a fair
characterization of where things stood in 1945
at all
It is true that some people within the
State Department in 1945 thought that immunity
should move to a more restrictive standard but
the Justice Department would not even advance
that standard in this Court at the request of
the State Department and this Court did not
describe the immunity as being in flux This
Court said the standard was virtually absolute
immunity
If one looks even in 1952 at the Tate
Letter the Tate Letter didnt say the law was
in flux in the United States It said the
United States was hewing to the standard of
virtually absolute immunity but other
countries were moving towards a standard of
restrictive immunity and therefore we ought
to reconsider what were doing
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So I just -- I mean the Court can
read these materials for -- for itself but I
just respectfully do not think its a fair
consideration of where things stood in 1945 at
all
And then if I could Id like to pick
up on a related point that came up in the brief
of the United States Its another statement
in the brief of the United States and it came
up in argument today that look this really
isnt a problem because for those organizations
that need immunity that goes beyond the -- the
restrictive immunity weve always understood
that they get -- they can go get a special
statute and theyve gone and gotten special
statutes
The United States says on page 27 of
its brief precisely because the IOIA didnt
provide that level of immunity they give these
three examples IMF World Trade Organization
and Organization of American States
Id like to take a minute and go
through each of them because it doesnt hold up
with respect to each of them With respect to
the IMF for example it is true the IMF you
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know it has a -- has a treaty There was a
statute that gave that treaty effect under US
law which ended up providing for absolute
immunity
But it cant possibly be that that was
undertaken based on any sense that the IOIA
didnt provide that level of immunity because
the IMF statute was enacted in July of 1945
and the IOIA wasnt enacted until five months
later So it cant possibly substantiate what
the government was saying
If one looks at the WTO treaty it is
true with respect to that treaty that it
committed us to a very wide scope of
immunities It said that the United -- that
the United States will commit to providing all
or virtually all of the immunities provided
under a whole different UN convention the
UN convention on specialized agencies
Now that convention has all kinds of
tax immunities and property immunities that go
way beyond what the IOIA provides So of
course they needed another statute in order to
make those treaty commitments That doesnt
prove anything about whether anybody thought
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that the IOIA failed to provide virtually
absolute immunity
In fact the historical evidence I
think really to the extent it points in any
direction it points very much more in our
direction And the best way to see that is
with respect to the way the United Nations was
treated under -- by the executive branch in
this country
Now we signed the UN charter in
1945 committed us to provide what the charter
describes as the necessary immunities Then
the UN Convention on Immunities was
negotiated in 1946 which said that the UN
should get virtually absolute immunity Not
the same immunity as foreign states virtually
absolute immunity
Now the United States did not ratify
that convention until 1970 So on the theory
that my friends on the other side have from
the moment of the Tate Letter in 1952 when
foreign state immunity became restrictive and
not virtually absolute anymore we were in
violation of the commitment we made in the UN
charter
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Now if that was true you would
certainly expect the State Department A to
address it in the Tate Letter but theres
nothing in there Its a classic case of the
dog that didnt bark And B you would expect
them to try to do something about it like get
the UN Convention ratified immediately
because otherwise we were going to be out of -shy
out of compliance with our obligations to the
granddaddy of all international organizations
the United Nations
But theres not a -- from 1952 until
the ratification of the Convention in 1970 you
cant find one word by anybody in the executive
branch ever saying that What you do find -shy
JUSTICE SOTOMAYOR What commercial
activities was the UN doing at that time
MR VERRILLI Well -shy
JUSTICE SOTOMAYOR I know today its
a very different organization but its not
clear to me that there was much going on that
was commercial at its initial stages
MR VERRILLI I take that point Your
Honor but what I would say in response is that
there was a very great deal of sensitivity
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about the whole package of -- of immunities
that were available to the UN and its
diplomats and its -- and its workers
And there was concern all along from
1952 to 1970 that -- that -- where the
executive was urging Congress to ratify the
convention but the only things ever mentioned
were the diplomats -- immunities for diplomatic
individuals
And then when you get to 1970 and you
actually look at the Senate report accompanying
the ratification this was not in our brief
but its at page 31 of the brief of the -- of
the scholars who filed the brief in support of
us It quotes the Senate report from 1970 and
what the Senate report says is were not
granting the UN any -- the UN as an
organization any immunity it didnt already
have under the IOIA
So as late as 1970 it was just quite
clear that everybody understood the IOIA
conferred virtually absolute immunity And of
course thats because it was -- it was enacted
to comply with our treaty obligations
It wasnt enacted to make sure that
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come what may that international organizations
would get treated the same as foreign states
That is -- you know thats the best way to
think about it is its just a completely
anachronistic way of thinking about the body of
materials in front of you
JUSTICE KAGAN But even what you just
said Mr Verrilli it wasnt enacted to make
sure that foreign organizations would get
treated the same as foreign states
I mean thats exactly what the
language of the thing says
MR VERRILLI Well so I guess a
couple of things about that I think the right
way to think about the language Justice Kagan
is that it was a means to an end in 1945 when
it was enacted
It was not the end in itself to assure
equivalence of treatment come what may It was
the means by which Congress ensured that it
would fulfill its treaty commitments which were
-- and those treaty commitments were to provide
virtually absolute immunity
And we know the Senate report says
were enacting this provision to fulfill our
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treaty commitments And our treaty
commitments again were not to treat them the
same They were to provide virtually absolute
immunity So -shy
JUSTICE KAGAN Do you think it was -shy
you answered Justice Ginsburgs questions about
how far we were from the Tate Letter in 1945
but do you think it was inconceivable to
Congress that the common law of immunity would
change
MR VERRILLI Well I -- I -- I cant
say that it would be inconceivable to anybody
but what I can say is if one looks at the
debates surrounding the passage of the IOIA
is once again its a dog that didnt bark
You cant find a single person
anywhere saying anything remotely like the
proposition that we need to adopt a standard
that will evolve over time because we have a
concern that foreign sovereign immunity law
will evolve over time
That just was not any part of
anybodys thinking at that time They were
trying -- you have to remember this is coming
out of the Bretten Woods system We have
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Bretten Woods We set up all these
organizations
They have a -- they have a desperate
mission in front of them to try to rebuild the
world -- the world after the carnage of World
War II Theres a lot of pressure on Congress
to get these organizations up and going and
give them the immunity we promised them so they
can go out and do their work Thats what led
to the enactment of the IOIA
It was none of these other things as
I said I really think if you look at the
historical materials its the -- the gloss
that my friends on the other side are trying to
put on it is completely anachronistic
Theyre taking a different concept
that theyve come up with now and trying to
retrofit the historical facts to match it and
it just isnt right
JUSTICE BREYER Is that -- is that -shy
the Russians at that time 45 and so forth
were putting all these businesses into state
entities So my guess is there were -- there
were a number of cases and what I thought I
heard Mr Fisher say is if we really go back
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and look at this well see that the status quo
before this passed was not absolute immunity
but the status quo was a kind of mess where
sometimes the State Department would say give
them immunity and sometimes the State
Department would say not
Now what is the actual situation as
far as youve been able to find it
MR VERRILLI Well I dont -shy
respectfully with respect to my friends on the
other side I dont think thats a fair
characterization of the historical materials
JUSTICE GINSBURG Thats the same -shy
the answer you gave to me is the answer you
would give to Justice Breyer
MR VERRILLI Yes
JUSTICE GINSBURG Same question
MR VERRILLI Yes I mean its just
not there I mean look at what this Courts
cases said This Courts cases didnt say
anything like that
The -- the -- the governments briefs
to this Court didnt say anything like that
When this Court has looked back on the law in
Verlinden and in Samantar it hadnt said
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anything like that It said the standard was a
common law standard of virtually absolute
immunity
And thats in fact how the Tate
Letter describes it too And then as a process
matter -shy
JUSTICE BREYER Okay I got it
MR VERRILLI -- my friends on the
other side have made this argument that well
our position would also require you to go back
to the process of the State Department making
an ad hoc case-by-case determination but
thats wrong too
And thats clear on the face of the
statute that its wrong And the reason -- and
-- and thats right in Section 288 This
creates an entirely different mechanism
What the -- what the IOIA says is that
-- that the President shall have the authority
under executive order once Congress has
enacted a statute to grant an international
organization the privileges and immunities
And if you look at the face of the
statute its obvious that they are granted on
a categorical basis in gross by an executive
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order not on a case-by-case basis by the State
Department when -- when a lawsuit is -- or when
a -- when a lawsuit is filed
And then similarly in terms of the
Presidents authority as to an executive order
to reduce or eliminate the -- the immunity of
an international organization that -- its -shy
again its completely different than the
situation that -- than the common law process
at work So obviously Congress made a
judgment that it was going to put a different
structure and system in place
And the fact that Congress did that I
do say -- I do think quite clearly presupposes
that theres a -- the existence of a
substantive standard being prescribed And the
substantive standard as I said is virtually
absolute immunity
And then in terms of the structural
indicators in the statutory text going back to
a question you asked Justice Sotomayor I
really think the most telling one to -- to
show you I think why my friends on the other
sides case is completely anachronistic and
were correct -- is Section 288f which you can
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find at page 6a of the appendix to the blue
brief
That provision says that the
privileges exemptions and immunities of
international organizations and then of -- of
members and employees et cetera shall be
granted notwithstanding the fact that similar
privileges exemptions and immunities granted
to a foreign government et cetera et cetera
may be conditioned upon the existence of
reciprocity by that foreign government
So right there in the text it
decouples the treatment of international
organizations from the treatment of foreign
states Even in a situation in which the
United States would not grant the full range of
virtually absolute immunity because it wasnt
being -- receiving reciprocal treatment this
statute says the international organization
gets it So -shy
JUSTICE GINSBURG How do you deal
with the argument that we just heard that we
can compare 288a on the one hand which -shy
which keeps the international organizations in
tune with foreign sovereigns and 288 -- was it
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b and d
MR VERRILLI Yes I do think that
the -- the differences break down into two
categories Your Honor There -- some of the
provisions do prescribe fixed standards
Thats true But those fixed standards as we
explained in our brief or at least tried to
are always situations in which the IOIA is
conferring a narrower set of immunities on -shy
on diplomats and individuals than the common
law would have at the time
So incorporation of the standard in
the way this 288a(b) did wouldnt accomplish
the objective there because there was -- they
were quite consciously trying to narrow the
overall scope of immunities and not give the
individuals who worked at these organizations
the same full treatment that diplomats got who
-- from foreign states
Now the second subcategory are the
provisions where the -- the statute says that
their -- the treatment shall be the same But
theres two things about that that are
significant
One is it says they shall be the same
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as under another statutory provision And as
we said we think thats vitally important
here We think its quite clear that in
addition to Justice Breyers points about the
reference canon that the reference canon
applies when one statute incorporates another
It doesnt apply when one statute incorporates
the common law And here they were
incorporating statutes
And if you look at those provisions
anyway theyre basically just instructions to
the executive branch when do you fingerprint
the people when theyre coming in What do you
do about that -- this detail or that detail
They dont go to the heart of the
matter at all And the heart of the matter
here is the immunity being conferred on these
international organizations
I just want to make a point about that
and then if I could talk about the
consequences that will ensue I think if we go
down the path that my friends on the other side
are suggesting
I think this is a critical point I
just want to make sure its clear Another
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reason why you shouldnt draw this equivalence
-- and it cant be that Congress really
intended to draw an equivalence between foreign
states and international organizations such
that they would just move in tandem no matter
what -- is that immunity is granted for
different reasons
The reason you give an international
organization immunity is a functional reason
not a status reason Its not about according
the appropriate respect to the sovereigns
because international organizations arent
sovereigns Theyre separate juridical
persons And whats quite clear -- its clear
from the U -- the San Francisco report on the
foundation of the UN its clear from the
Senate report in 1945 its clear from all the
commentators that we discussed in our brief
its clear from the Restatement of Foreign
Relations which weve cited in our brief that
you grant immunity to international
organizations so that they can carry out their
functions effectively And -- and just take -shy
let me take a minute and kind of elaborate on
that because I think its critical
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Remember these are -shy
CHIEF JUSTICE ROBERTS If you dont
mind Im afraid Im about five minutes behind
you here but going -- going back to your point
on 288f you said its there theyre decoupling
the international organizations and the foreign
sovereigns But as I go back and read it
its simply because the -- the foreign
sovereigns have the capability to use
reciprocity and the foreign -- and the
multi-country organizations do not
I dont -- I mean thats the
difference theyre drawing there not something
between the scope of the actual immunities
MR VERRILLI Well I -- well the
way I read it Mr Chief Justice is what -shy
what theyre doing there is saying even in a
situation in which the United States concludes
that it wont afford a foreign sovereign the
full virtually absolute immunity because of
reciprocity in other words were not getting
it back from them even in that situation an
international organization of -- where those
sovereigns are members will still receive the
full level of immunity
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And so I think what that tells us is
that what Congress was trying to do in this
statute overall was prescribe a fixed
substantive standard not a floating standard
where the two things move in tandem So -- and
I -- I do think it supports that
And if I could just go back to the
functional point remember these are
collective bodies and members come together
they make -- they -- they take resources from
each of their own countries They put them
into these organizations They make collective
decisions about how to deploy those resources
And the point of the immunity here is
so that the courts of any country but
especially the host country which for the most
important organizations are going to be here in
the United States cant override the
collective judgments that they make about how
their resources would be deployed and what
conditions they ought to impose et cetera by
the intervention of domestic law in US courts
and cant redirect the funds that are put into
these organizations to pay massive class action
tort judgments because of course the member
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countries are contributing this money because
they believe its going to be put to the use
that the -- for example the development bank
the development bank decides it should be put
to not to pay massive tort judgments
And I think one place you see this
very clearly if you look at the report of the
San Francisco conference about the founding of
the UN the State Departments -shy
Departments response coming -- report coming
out of that conference specifically says this
It says of course the United Nations cant be
subject to the jurisdiction of any one state or
its courts
And its for exactly this reason And
the same thing is true generally Thats why
you give it not for functional reasons -- I
mean excuse me not for reasons of status but
for functional reasons
And I think a key -- another key
reason why you shouldnt be thinking about this
as a standard that evolves evolves now and
over time is that those functional reasons
dont evolve now and over time
CHIEF JUSTICE ROBERTS Well what
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about the point that most of the concerns you
have are going to be dealt with by the
requirement of a nexus to activity in the
United States as opposed to simply abroad
where the projects are funded
MR VERRILLI Yes I was gratified
to hear the United States say that but -- and
-- but I could just -- Ill answer Your Honors
question directly but I want to broaden it out
a little bit because I think what essentially
the United States is saying here is look the
statute leaves one with no choice but to apply
restrictive principles of immunity Youve got
to jump off that cliff but dont worry it
will be a soft landing because the FSIA will
take care of a lot of these problems
And I guess what I would say about
that is in the unlikely event you dont agree
with me I -shy
(Laughter)
MR VERRILLI -- I hope theyre
right But theres no guarantee that theyre
right
JUSTICE BREYER Are the -- are the
lending decisions which may be fairly detailed
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and may include dozens of conditions made
within the United States
MR VERRILLI Well yes I think
thats a big part of the problem and -shy
JUSTICE BREYER Is there -- are there
lawsuits that could say that there was
negligence in determining in a different
country who the persons were or the conditions
under which the money would be spent Is that
an American lawsuit saying what youve done
here is commit the act of negligence or failure
to be a fiduciary here
MR VERRILLI Thats this lawsuit
Thats this lawsuit Justice Breyer Thats
exactly what theyre alleging
CHIEF JUSTICE ROBERTS Well but I
mean is that consistent with our opinion in
the OBB case which I think -- if the complaint
is based the gravamen of the complaint not
specific steps along the way and that was the
issue we dealt with in that case
And I appreciate the fact that its
you know to some extent dependent on the facts
and particular allegations but it would seem
to me to require a lot more than simply the
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specific decisions I think where -- wheres
the gravamen or gravamen however you say it
with whats going on here
MR VERRILLI Well we would
certainly say its India of course
CHIEF JUSTICE ROBERTS Yeah
MR VERRILLI And if -- if we have to
defend ourselves on that basis we will But I
-- but I -- I think it -- it understates the
real concrete risk here And what Id like to
do to illustrate that if I could is first
talk about the organizations that are going to
be exposed in a way that they wouldnt be under
the law
And as Justice Breyer indicated
earlier its important to remember this has
been the law in the DC Circuit for decades
and theres -- and people have ordered their
affairs based on the assumption that there was
virtually absolute immunity
But with respect -- but with respect
to the consequences and the groups affected and
then the types of effects With respect to the
groups affected youve got entities like us
the multilateral development banks And
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Justice Breyers identified many of them
Now the -- the main ones are here
here in Washington DC and theyre making
their decisions here and I think critically
too there are billions of dollars of assets
here
Now were going to make the OBB
argument for sure and I hope we win if we have
to make the argument I hope we win But who
knows how courts are going to come out on that
issue
Were going to have a lot of fighting
about that There are probably going to be
matters of degree Theres certainly going to
be significant disincentives arising out of
that uncertainty
Theres a whole another group of
entities that unlike the banks at least have
articles of agreement where we can try and fall
back on those for alternative arguments of
immunity where their immunity depends entirely
on the statutory grant the International
Committee of the Red Cross the World Health
Organization the fund to fight -- the global
fund to fight AIDS and tuberculosis and
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malaria
They are all entirely dependent on the
IOIA for their immunities and those immunities
are drastically different after this And then
we do have the issue I think with some
organizations that we may even actually now be
out of our -- out of compliance with our treaty
commitments
Now whats going to happen Heres
what I think is going to happen and I think
this lawsuit helps you see it
Now the way -- the basis of this
lawsuit is the following IFC when it loans
money here its loaning money in -- in parts
of the world where private capital wont go
unless we go in there
And very often they have un-developed
legal systems and they certainly dont have
robust environmental protections or labor
protections So what the IFC has done is lien
into those put those kinds of environmental
standards and labor standards into its
agreements saying you want this money to do
this development project these are the
standards that youve got to live up to
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And -- and this lawsuit is that -shy
that the entity that we loan this money to
didnt live up to the standards and its our
fault And so were being sued here
Well its going to create -- if that
kind of a suit can go forward and hopefully it
wont be able to Mr Chief Justice but if it
can its certainly going to create an
extraordinary disincentive for organizations
like ours to lien into those kinds of standards
because were going to be hoist by our own
petard
Now weve also got a robust internal
accountability mechanism where if people think
something has gone wrong on one of our
projects they can come to us and they can say
-- they can say look theres a problem here
And they -- and we investigate We take
internal remedial measures if we find theres a
problem
Well you know the factual basis for
the lawsuit is the report of our internal
accountability process
So if they can just grab that and take
it into court and make it the basis for a class
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action tort lawsuit in which they can make a
claim for all this money its going to create
a powerful disincentive for us not to engage in
that kind of self-policing activity
And I would submit that you know
even if things ultimately work themselves out
under the FSIA and I hope they -- I hope we
dont have to deal with that but even if we
do its going to take a very long time There
are going to be a lot of difficult cases at the
margin There are going to be very serious
disincentives immediately
And conversely you know were a big
fat target here These organizations have lots
of money And of course foreign plaintiffs
want to sue here They can bring a class
action They get liberal discovery They can
get punitive damages They get all of these
advantages by suing here
So instead of suing the person that
actually injured them the power plant in
India they come here and sue us
And I really think what you are going
to see here is that this is just going to
become another version of the sorts of
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foreign-cubed lawsuits that the Court has been
concerned about under the Alien Tort Statute
where the international organization is just
going to be subbed in for the foreign defendant
and its going to be subbed in in a situation
where were going to have a very significant
pile of money
And if I could just close with this
thought -- Im just going to pick up on Justice
Breyers thought -- the law in the District of
Columbia where virtually all these
organizations have been housed are
headquartered has been virtually absent
immunity under DC circuit law for decades
Thats the standard everybody has been
operating on
Nobodys suggested that anything has
gone wrong under this statute that there are
any deleterious policy consequences that the
interests of the United States are adversely
affected in any way In fact if you look at
the amicus brief from the former Secretaries of
Treasury and State they think that the policy
of the government arguing now is going to
disrupt the United States ability to function
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effectively with these organizations
It has all been fine And -- but
theyre asking you essentially to repeat a
metaphor to jump off a cliff And hopefully
it will be a soft landing But we dont know
that And it could easily result in a lot of
disruption to the good work that these
organizations do
And I guess what I would suggest is
that if thats going to happen it ought to
happen through legislation Congress can look
at this Congress can change the law if it
wants to But this has been the law for a very
long time There is no evidence that it has
done anything other than work well
And therefore I think the Court
should affirm the DC Circuit Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Four minutes Mr Fisher
REBUTTAL ARGUMENT OF JEFFREY L FISHER
ON BEHALF OF THE PETITIONERS
MR FISHER Thank you Id like to
make four points and Id like to start with the
text of the statute itself and simply say when
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Mr Verrilli talks about the Neder Doctrine and
the Common Law Doctrine that you look at the
term a terms meaning at the time of
enactment Hes mixing apples and oranges
And I think all the citations in our
reply brief should make it absolutely clear
that theres a doctrine on the one hand that
talks about incorporating a body of law and
theres a doctrine on the other hand about
giving meaning to a specific term Were in
the former camp here
And as to the point about whether the
common law was evolving at the time two
things Well stand on the papers as to the
fact that it was somewhat in flux
But the more important point is even
if it werent in flux it wouldnt matter one
wit because the other side is making a
sweeping proposition which is any general
reference to common law is fixed in time
That would disrupt any number of
federal statutory regimes from the Federal
Tort Claims Act enacted the year after this
statute the Equal Access to Justice Act the
federal governments piracy statute Federal
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Rule of Evidence 501 I could go on and on
with federal statutory regimes that reference
the common law in exactly the same way the
statute does here
The Civil Rights Act of 1866 if you
want one more All of those would come out the
other way from this Courts jurisprudence and
from all the understanding if the other side is
right about statutory interpretation
So I think the only thing the other
side has is they have a bunch of policy points
to make for this Court
Now we dont think they should
control but let me answer them So first as
to our treaty obligations So one about at the
moment of enactment My friend kept saying
that there were various agreements in place
that required virtually absolute immunity
None of the agreements use those
words Instead what those agreements said is
that certain organizations were entitled to
immunity to allow them to perform their
necessary functions Thats a very different
thing than absolute immunity
And its very different because none
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of the organizations involved were performing
Justice Sotomayor commercial activities that
were essential to their core functions not the
UN not any of the other organizations
So we werent in breach of any treaty
rights And if you have any doubt on that I
would urge you to look to the federal
governments position then and now Its not
just a brief filed in this Court
It is the position that four different
Presidential Administrations have taken The
Carter Administration right after the FSIA was
passed the George H W Bush Administration
the Clinton Administration and now the Trump
Administration have all consistently held that
the FSIA rules are incorporated into the FSIA
Next on the floodgates concern I
explained earlier and I hope you will think
about the fact that while the core activities
of the IFC might be commercial activity not
all of the IFCs activities are and certainly
not all the activities of international
organizations are
But let me add one more thing My
friend talked about big lawsuits of ruinous
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liability Well theres two very easy ways to
control that
One is to the extent any claims are
on contracts they can write their own
contracts and negotiate their own contracts
As the Solicitor General points out they can
even deal with third-party beneficiaries in
their contracts if they choose
Secondly as to tort claims they can
and in fact commonly do indemnify themselves
against tort lawsuits In this very case
their agreement indemnifies them against any
judgment and all legal fees
So these organizations have every
manner of method to deal with any potential
liability And in fact they are which sort
of belies the suggestion that they think
theyre absolutely immune from lawsuit
Finally let me say one thing about
the so-called foreign cubed problem or the
facts of this case Now obviously we think
that we would satisfy the gravamen test They
have never made that argument And if they
want to make it we can -- we can have that
conversation in the lower courts
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But bear in mind what youre being
asked to do in this case is to announce a
categorical rule for all cases dealing with
international organizations
So my friend in the Solicitor
Generals Office talked about just regular tort
slip and fall cases and the like in the United
States Let me give you one other thing to
think about
Some international organizations
actually do their work in the United States
The border cooperation -- the Border
Environmental Cooperation Commission does
wastewater treatment plants in Texas and
California
I cant think of any reason why they
would be immune from those infrastructure
projects in a way that no private business or
public government would be
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1206 pm the case
was submitted)
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1 392151723 4122 4223 433
452 462 4718 4817 5220 57
allegations [1] 5624
alleging [1] 5615 B
1108 [2] 115 32 20 651824 allow [3] 2321 246 6522 back [22] 44 61420 10513 11
1206 [1] 6822 Absolutely [3] 3113 646 6718 allowed [1] 2610 17 154422 172425 1911 226
1602 [1] 1412 Access [1] 6424 allows [3] 231220 242 4425 4524 4610 4720 5247
17-1011 [1] 34 accident [1] 2615 almost [2] 719 253 22 537 5820
1866 [1] 655 accompanying [1] 4111 already [4] 311521 323 4118 backwards [4] 514 23161724
1904 [2] 614 1725 accomplish [1] 4913 alternative [1] 5820 bad [1] 1416
1934 [1] 49 according [2] 1817 5110 Altmann [1] 1318 bank [13] 719 81822 98 2716
1945 [17] 1013 142025 151213 accountability [2] 601423 amended [1] 1615 283455 3022 324 5434
15 1617 331 3522 36710 374 accumulated [1] 3514 American [3] 112 3721 5610 banks [9] 88910 271415 2911
388 3911 4216 437 5117 across [1] 1025 amicus [4] 122 27 2011 6222 3021 5725 5818
1946 [1] 3914 Act [15] 320 6319 1412 1724 20 amounts [1] 2411 bare [1] 1524
1952 [4] 3618 3921 4012 415 422 212 301518 347 5611 64 anachronistic [3] 425 4415 47 bark [2] 405 4315
1970 [6] 3919 4013 415101520 2324 655 24 barred [2] 2689
1990s [1] 1221 action [3] 5324 61117 announce [1] 682 based [5] 2518 354 386 5619
1994 [1] 115 activities [11] 8517 195 2717 another [13] 323 144 167 1923 5719
2 2910 3122 4017 662192122 2122 378 3823 501625 5420 basic [1] 3413
20 [2] 28 2622
20-some [1] 2624
2018 [1] 111
21 [1] 3421
27 [1] 3717
288 [4] 2213 331 4616 4825
288a [3] 1915 2018 4823
288a(b [4] 2024 2111 2215 49
13
288a(d [1] 2110
288b [1] 343
288d [1] 1916
288d(a [1] 2110
288f [2] 4725 525
activity [23] 791820 81015 94
69 2551718 27182325 2914
17 3010 31211 322 553 614
6620
actors [1] 2912
acts [1] 216
actual [2] 457 5214
actually [4] 4111 596 6121 68
11
ad [1] 4612
add [3] 1424 2510 6624
addition [2] 2515 504
address [4] 417 78 2423 403
adjust [2] 1212 1720
Administration [4] 66121314
5817 6125
answer [11] 71122 10191920
1817 2514 451414 558 6514
answered [1] 436
antiquated [1] 1816
anybody [3] 3825 4014 4312
anybodys [1] 4323
anyway [1] 5011
APPEARANCES [1] 117
appendix [1] 481
apples [1] 644
applied [1] 710
applies [5] 612 2216 341415 50
6
apply [7] 1010 161 1919 2215
basically [2] 1822 5011
basis [6] 4625 471 578 5912 60
2125
bear [1] 681
became [1] 3922
become [1] 6125
becomes [1] 1815
behalf [8] 11925 241114 38 33
8 6322
behind [1] 523
belies [1] 6717
believe [1] 542
beneficiaries [1] 677
best [2] 396 423
better [1] 2019
3 15 2521 507 5512 between [2] 513 5214
3 [1] 24 Administrations [1] 1825 appreciate [1] 5622 beyond [2] 3712 3822
30 [1] 2622 Administrations [1] 6611 appropriate [1] 5111 big [5] 2223 3022 564 6113 66
31 [2] 111 4113 adopt [1] 4318 archives [1] 213 25
33 [1] 211 adopting [1] 47 area [2] 171618 billions [1] 585
4 adoption [1] 1610
advance [1] 3612
arent [1] 5112
argued [1] 92
bit [2] 363 5510
blue [1] 481
45 [1] 4421 advantages [1] 6119 arguing [1] 6224 bodies [1] 539
5 5 [1] 1612
501 [1] 651
527 [1] 3420
adversely [1] 6220
advice [1] 812
advising [1] 3525
advocated [1] 309
affairs [1] 5719
argument [24] 114 225912 34
7 5111 625 1410 1914 2010
2213 2314 337 3521 3710 46
9 4822 5889 6321 6723
arguments [2] 416 5820
body [4] 32325 425 648
border [2] 681212
both [1] 2211
bounds [1] 1714
branch [11] 1024 1481318 151
6 affected [3] 572224 6221 arising [1] 5815 161924 398 4015 5012
63 [1] 214 affirm [1] 6317 Armed [1] 63 breach [1] 665
6a [1] 481 afford [2] 296 5219 articles [1] 5819 break [1] 493
8 afraid [2] 1625 523
Africa [1] 3023
Asia [1] 3023
Asian [1] 284
Bretten [2] 4325 441
BREYER [40] 43 513162022 6
80-some [1] 2623 African [1] 285 assets [1] 585 16 717 817 912 108 1117 12
A agencies [1] 3819
agree [3] 2018 253 5518
Assistant [1] 120
Association [1] 286
22 133 147 157 238111923
24259151821 2712 282914 am [2] 115 32
agreed [1] 294 assume [3] 1221 1711 222 301619 3147 4420 4515 467 ability [4] 12121315 6225
agreement [4] 282325 5819 67 assuming [1] 277 5524 56514 5715 able [7] 1023 2423 2513 264 32
12 assumption [2] 1223 5719 Breyers [4] 164 504 581 6210 20 458 607
agreements [5] 2821 5923 65 assurance [1] 318 brief [16] 618 115 364 377918 above-entitled [1] 113
171920 assure [3] 30619 4218 41121314 482 497 511820 abroad [1] 554
agricultural [1] 84 attenuated [1] 2523 6222 646 669 absent [1] 6213
AIDS [1] 5825 authority [7] 212425 2241114 briefs [1] 4522 absolute [33] 1922 201 22310
AL [1] 13 4619 475 bring [1] 6116 20 2610 282025 3215 331215
Alan [1] 1624 available [3] 11810 412 broaden [1] 559 21 34117 3524 361622 383
Alien [1] 622 BUDHA [1] 13
Heritage Reporting Corporation Sheet 1 1108 - BUDHA
70Official - Subject to Review
building [1] 2613
bunch [1] 6511
Bush [1] 6613
business [2] 1414 6818
businesses [1] 4422
bygone [2] 181819
C California [2] 118 6815
call [1] 412
came [5] 113 1125 1223 3779
camp [1] 6411
canon [5] 159 165 1911 5055
capability [1] 529
capital [1] 5915
captures [1] 2718
Carcieri [1] 67
care [1] 5516
Career [1] 63
carnage [1] 445
carry [1] 5122
Carter [1] 6612
Case [35] 34 4189 548 6236
88161718 9162025 14116
191 2117 2511 34182122 36
2 404 4724 561821 671121
6822122
case-by-case [2] 4612 471
cases [13] 413 61 92 158 1824
269 3415 4424 452020 6110
6837
categorical [2] 4625 683
categories [1] 494
category [2] 878
certain [2] 304 6521
Certainly [7] 1313 402 575 58
14 5918 608 6621
cetera [4] 48699 5321
change [4] 305 348 4310 6312
changes [1] 46
characterization [2] 367 4512
charter [6] 2816 311920 3910
1125
Chase [1] 618
CHIEF [15] 339 20713 3349 34
24 52216 5425 5616 576 607
6318 6820
choice [2] 174 5512
choose [1] 678
Circuit [4] 1814 5717 6214 63
17
circumstances [1] 3224
citations [1] 645
cite [2] 6218
cited [2] 525 5120
citizens [1] 3216
Civil [1] 655
claim [2] 311 612
Claims [3] 6423 6739
class [3] 5324 6025 6116
classic [1] 404
clear [17] 316 1119 1515 2424
2521 2716 4021 4121 4614 50
325 511414161719 646
clearly [2] 4714 547
cliff [2] 5514 634
Clinton [1] 6614
close [3] 425 712 628
closely [1] 910
collection [1] 218
collective [3] 5391219
Columbia [1] 6211
come [11] 1115 1521 322 421
19 4417 539 5810 6016 6122
656
comes [2] 548
comfort [1] 1121
coming [6] 97 3511 4324 5013
541010
commentators [1] 5118
commercial [26] 420 791720 8
1015 9469 2551618 27317
182325 291417 3010 312 32
2 401622 66220
Commission [1] 6813
commit [3] 3323 3816 5611
commitment [1] 3924
commitments [6] 3824 422122
4312 598
committed [4] 332125 3814 39
11
Committee [1] 5823
common [17] 621 74 1419 185
67 3314 3515 439 462 479 49
10 508 6421320 653
commonly [1] 6710
comparator [1] 715
compare [2] 1915 4823
competent [1] 622
complaint [2] 561819
completely [4] 424 4415 47824
compliance [2] 409 597
comply [1] 4124
components [1] 822
concede [1] 2112
concept [1] 4416
concern [4] 1325 414 4320 66
17
concerned [1] 622
concerns [2] 268 551
concludes [1] 5218
conclusion [1] 155
concrete [1] 5710
conditioned [1] 4810
conditions [3] 5321 5618
conduct [2] 261 3217
conference [2] 54811
conferred [2] 4122 5017
conferring [1] 499
Congress [36] 1023 1125 1224
25 1317 1415 174710111217
21 18210 1924 222 231 3225
3319 34616 351417 416 42
20 439 446 4620 471013 512
532 631112
Congresss [1] 1215
connected [1] 2516
connection [1] 2523
consciously [1] 4915
consequences [3] 5021 5722
6219
consideration [1] 374
consistent [3] 46 1011 5617
consistently [1] 6615
construction [3] 3414 351313
contemplated [1] 195
context [1] 3317
Contoe [1] 1624
contract [1] 2612
contractor [1] 2613
contracts [4] 674558
contributing [1] 541
control [4] 1523 162 6514 672
convention [8] 38181920 3913
19 40713 417
conversation [1] 6725
conversely [1] 6113
conviction [1] 65
cooperation [2] 681213
core [4] 2910 3122 66319
CORPORATION [2] 16 35
correct [3] 136 1924 4725
correctly [2] 510 1822
couldnt [2] 2225 2923
counsel [4] 208 335 6319 6821
count [1] 2916
countries [3] 3623 5311 541
country [4] 399 531516 568
counts [1] 2914
couple [4] 241419 3114 4214
coupled [1] 315
course [9] 621 3422 352 3823
4123 5325 5412 575 6115
COURT [31] 1114 310 6824 15
1718 1824 2014 2721 3213 33
310 34131925 351715 361
131416 371 452324 6025 62
1 6316 6512 669
Courts [6] 523 1518 2520 4519
20 657
courts [9] 1423 2722 309 3218
531522 5414 5810 6725
create [4] 1121 6058 612
creates [1] 4617
Criminal [1] 63
critical [2] 5024 5125
critically [1] 584
Cross [1] 5823
crystal-clear [1] 2824
cubed [1] 6720
curiae [3] 122 28 2012
D DC [7] 1102124 2616 5717 58
3 6317
damages [1] 6118
date [1] 1723
dates [1] 613
day [1] 1817
DC [1] 6214
deal [10] 188 2021 2223 2425
3022 4025 4821 618 67715
dealing [1] 683
deals [1] 2123
dealt [3] 2819 552 5621
debates [1] 4314
decades [2] 5717 6214
decide [6] 527 913141923
decides [2] 1516 544
decision [3] 2520 342021
decisions [4] 5313 5525 571 58
4
decouples [1] 4813
decoupling [1] 525
decrease [1] 136
default [2] 126 1720
defend [1] 578
defendant [1] 624
degree [1] 5814
deleterious [1] 6219
denying [1] 315
Department [15] 121 56 917 18
25 198 2823 3525 36101214
402 4546 4611 472
Departments [2] 54910
dependent [2] 5623 592
depends [1] 5821
deploy [1] 5313
deployed [1] 5320
describe [1] 3615
described [1] 1510
describes [2] 3912 465
describing [1] 2218
designated [1] 2623
desperate [1] 443
detail [2] 501414
detailed [1] 5525
determination [2] 1415 4612
determining [1] 567
development [13] 271415 2845
56 2911 302124 5434 5725
5924
dichotomy [1] 1916
dictates [1] 3517
difference [1] 5213
differences [1] 493
different [20] 7323 97 171321
181 2111 3818 4020 4416 46
17 47811 517 567 594 6523
25 6610
difficult [1] 6110
diplomatic [2] 2222 418
diplomats [4] 4138 491018
direction [2] 3956
directly [2] 3122 559
discarded [1] 204
discovery [1] 6117
discussed [1] 5118
discusses [1] 114
discussing [1] 1917
discussion [1] 2017
disincentive [2] 609 613
disincentives [2] 5815 6112
dispute [3] 322 42 82
disputes [2] 261212
disrupt [2] 6225 6421
Heritage Reporting Corporation Sheet 2 building - disrupt
71Official - Subject to Review
disruption [1] 637
District [1] 6210
doctrine [8] 18581819 64127
9
dog [2] 405 4315
doing [5] 194 267 3625 4017 52
17
dollars [1] 585
domestic [3] 2612 3217 5322
DONALD [3] 124 210 337
done [3] 5610 5920 6315
doubt [2] 1913 666
doubts [2] 2511 264
down [5] 1722 182 1925 493 50
22
dozens [1] 561
draft [1] 203
drafting [2] 316 2119
drastically [1] 594
draw [2] 5113
drawing [1] 5213
driving [1] 2615
E each [3] 372324 5311
earlier [2] 5716 6618
easily [1] 636
easy [1] 671
effect [3] 61 364 382
effectively [2] 5123 631
effects [1] 5723
either [2] 94 156
elaborate [1] 5124
element [1] 355
eliminate [2] 259 476
ELLIS [31] 120 26 2091013 21
21 2212 23921 2447141719
23 2621 27481013 2881115
294820 3018 313613 328
employees [3] 214 2221 486
enact [1] 304
enacted [11] 1616 3225 3319 38
89 412325 42817 4621 6423
enacting [1] 4225
enactment [6] 75 17910 4410
644 6516
encourage [1] 3024
end [4] 425 358 421618
ended [1] 383
enforcement [1] 83
engage [3] 197 2724 613
enjoy [1] 58
enjoyed [2] 313 1210
enough [2] 2523 2921
ensue [1] 5021
ensured [1] 4220
enter [4] 3011212 329
entered [1] 2820
entire [1] 2021
entirely [3] 4617 5821 592
entities [3] 4423 5724 5818
entitled [3] 319 1922 6521
entity [1] 602
environmental [3] 591921 6813
Equal [1] 6424
equivalence [3] 4219 5113
equivalent [1] 424
era [2] 181819
especially [5] 324 1021 18419
5316
ESQ [6] 11824 2361013
essential [1] 663
essentially [3] 2124 5510 633
established [2] 351821
ET [5] 13 48699 5321
Even [30] 63 8816 107 1110 12
1620 1424 1816 19345 256
10 265 2714141415 361218
427 4815 521722 596 6168
6416 677
event [1] 5518
everybody [2] 4121 6215
everybodys [1] 277
everything [4] 96 1013 2534
evidence [3] 393 6314 651
evolve [4] 1620 431921 5424
evolves [2] 542222
evolving [2] 3313 6413
Ex [1] 1514
exact [2] 625 1916
exactly [8] 124 1714 237 3224
4211 5415 5615 653
example [6] 719 81 198 2412
3725 543
examples [2] 1025 3720
exception [5] 79 256 271925
349
excuse [1] 5418
executive [16] 1024 1481318
151161924 3410 398 4014
416 462025 475 5012
exemptions [2] 4848
exist [1] 194
existence [2] 4715 4810
expect [2] 4025
explained [3] 2722 497 6618
exposed [1] 5713
extent [3] 394 5623 673
extraordinary [1] 609
F face [2] 461423
fact [12] 2512 3123 393 464 47
13 487 5622 6221 6415 6619
671016
facts [3] 4418 5623 6721
factual [1] 6021
failed [1] 391
failure [1] 5611
fair [3] 366 373 4511
fairly [1] 5525
fall [4] 1911 2614 5819 687
far [4] 201719 437 458
fat [1] 6114
fault [1] 604
favor [2] 76 3112
federal [8] 1210 1823 642222
2525 652 667
fees [1] 6713
few [1] 723
fiduciary [1] 5612
fight [2] 582425
fighting [1] 5812
filed [3] 4114 473 669
Finally [1] 6719
FINANCE [2] 16 35
financial [2] 814 329
find [7] 2923 401415 4316 458
481 6019
fine [1] 632
fingerprint [1] 5012
first [10] 7123 102 1412 1610
1724 2324 351 5711 6514
FISHER [23] 118 2313 3679 5
12151721 10418 1381013 16
31321 173 4425 63202123
fisheries [1] 81
fit [2] 106 1520
five [3] 818 389 523
fixed [8] 212 2219 331216 495
6 533 6420
floating [1] 534
floodgate [1] 279
floodgates [3] 267 3116 6617
flux [6] 189 3523 361520 6415
17
focus [1] 3213
following [1] 5913
foolish [1] 1816
foreign [39] 3131819 7141518
812 97 1216 19720 219 234
9 2512 3219 3324 391622 42
2910 4320 489111425 4919
51319 52681019 6115 624
6720
foreign-cubed [1] 621
forever [1] 44
forgive [1] 1623
form [5] 1172123 1434
former [2] 6222 6411
forth [1] 4421
forward [8] 131424 142 2513
265 32314 606
foundation [1] 5116
founding [2] 620 548
Four [3] 632024 6610
Francisco [2] 5115 548
fraud [3] 342323 356
friend [6] 2016 2120 254 6516
6625 685
friends [7] 344 3920 4414 4510
468 4723 5022
front [2] 426 444
frozen [1] 2117
FSIA [10] 1411 15423 2718 297
5515 617 66121616
fulfill [3] 3320 422125
full [5] 354 4816 4918 522025
fully [1] 1023
function [1] 6225
functional [5] 519 538 541719
23
functions [3] 5123 6523 663
fund [2] 582425
funded [1] 555
funds [2] 196 5323
further [1] 332
future [1] 102
G gave [5] 517 124 349 382 4514
General [7] 120 322 113 1716
1811 6419 676
Generals [1] 686
generally [1] 5416
George [1] 6613
gets [1] 4820
getting [3] 923 148 5221
GINSBURG [5] 326 3520 4513
17 4821
Ginsburgs [1] 436
give [24] 56 61722 824 1018 11
21 1221115 131 15171920
3016 31814 3719 448 45415
4916 518 5417 688
given [10] 41 15122 175 1914
2211 3115 349 361
gives [4] 31117 812 1116
giving [1] 6410
Glad [1] 2423
global [1] 5824
gloss [1] 4413
goal [1] 1411
Gorsuch [6] 410 163142225
1813
got [9] 510 2317 289 467 4918
5513 5724 5925 6013
gotten [1] 3715
government [7] 127 318 3811
48911 6224 6819
governments [4] 92 4522 6425
668
governmental [1] 123
governments [11] 31319 812 9
1 12110 219 23410 2720 32
20
governs [1] 3511
grab [1] 6024
granddaddy [1] 4010
grant [8] 2023 2225 2313 246
4621 4816 5121 5822
granted [4] 4624 4878 516
granting [1] 4117
grants [2] 824 302
gratified [1] 556
gravamen [7] 25222425 5619
5722 6722
great [3] 188 2425 4025
gross [1] 4625
group [2] 710 5817
groups [2] 572224
guarantee [1] 5522
guess [6] 922 299 4213 4423
5517 639
H
Heritage Reporting Corporation Sheet 3 disruption - guess
72Official - Subject to Review
half [1] 2810 importing [1] 1419 11 595 56101314 591113 60122 61
hand [3] 4823 6479 impose [1] 5321 itself [7] 716 811 116 2416 372 1 6718
happen [4] 59910 631011 incentives [1] 142 4218 6325 lawsuits [5] 319 566 621 6625
hasten [1] 1424 include [1] 561 J 6711
headquarter [1] 1022 Including [1] 2711 lay [1] 1925
headquartered [4] 1022 2619 inconceivable [2] 43812 JAM [2] 13 34 lead [4] 153410 319
25 6213 incorporate [1] 3518 JEFFREY [5] 118 2313 37 63 least [4] 186 2410 497 5818
headquarters [2] 2615 292 incorporated [6] 325 72 169 33 21 leave [1] 420
Health [1] 5823 14 3423 6616 JONATHAN [3] 120 26 2010 leaves [1] 5512
hear [2] 33 557 incorporates [2] 5067 JR [2] 124 210 led [1] 449
heard [2] 4425 4822 incorporating [2] 509 648 judge [1] 1319 left [1] 2016
heart [2] 501516 incorporation [1] 4912 judgment [2] 4711 6713 legal [2] 5918 6713
heightened [1] 144 increase [1] 226 judgments [3] 531925 545 legislation [3] 813 175 6311
held [2] 309 6615 indeed [4] 427 187 203 Judiciary [2] 619 1724 legislative [1] 1119
helps [1] 5911 indemnifies [1] 6712 July [1] 388 lend [2] 423 2412
hewing [1] 3621 indemnify [1] 6710 jump [2] 5514 634 lending [8] 889101623 2719
historical [4] 393 441318 4512 India [4] 2623 575 6122 juridical [1] 5113 2910 5525
history [4] 316 1119 2119 2818 Indian [2] 47 68 jurisdiction [1] 5413 lends [1] 302
hoc [1] 4612 indicate [1] 3123 jurisprudence [2] 523 657 lens [1] 712
Hoffman [1] 1514 indicated [1] 5715 Justice [96] 121 339 4310 513 less [1] 229
hoist [1] 6011 indicators [1] 4720 162022 616 717 817 912 108 Letter [6] 361919 3921 403 437
hold [1] 3723 individualized [1] 1417 1117 121822 133591112 14 465
Honor [4] 2420 365 4024 494 individuals [3] 419 491017 67 156 1634142225 1812 20 level [3] 3719 387 5225
Honors [1] 558 infer [2] 351616 713 2121 238111923 24259 liability [2] 67116
hope [6] 5521 5889 6177 6618 infrastructure [1] 6817 151821 2617 272691111 28 liberal [1] 6117
hopefully [2] 606 634 initial [1] 4022 2914 2938 301619 3147 32 lien [2] 5920 6010
hornbook [1] 1010 injured [1] 6121 6 33410 34524 3520 3612 40 light [1] 3317
hornbooks [1] 43 injuries [1] 262 1619 42715 4356 4420 4513 limited [1] 1224
host [3] 2025 217 5316 inquiry [1] 358 1517 467 4721 4821 504 522 list [1] 3020
housed [1] 6212 insertion [1] 69 16 5425 5524 5651416 576 little [2] 102 5510
however [1] 572 instance [1] 2220 15 581 607 629 6318 6424 66 live [2] 5925 603
I instead [2] 6120 6520
institutions [2] 81823
2 6820
K loan [3] 820 2924 602
loaning [1] 5914 idea [4] 14816 1618 2618
identified [1] 581
IFC [10] 710 8111919 256 283
323 591320 6620
IFCs [2] 3120 6621
II [1] 446
illustrate [1] 5711
IMF [6] 283 302 37202525 388
immediately [2] 407 6112
immune [4] 215 252 6718 6817
immunities [19] 2025 2216 234
instructions [1] 5011
intended [2] 347 513
Inter-American [1] 284
interest [1] 1114
interests [1] 6220
interfere [1] 3110
internal [3] 60131922
INTERNATIONAL [37] 16 3511
17 422 72224 824 1025 1421
1921 2221 232 251 286 3222
3323 4010 421 4621 477 485
KAGAN [6] 2121 2938 42715
435
keeps [1] 4824
kept [1] 6516
key [2] 542020
kind [5] 825 453 5124 606 614
kinds [5] 716 2618 3820 5921
6010
knowing [1] 101
knows [2] 198 5810
loans [5] 2912131822 5913
lobby [1] 1023
locate [1] 1014
lock [1] 175
long [5] 45 1011 1322 619 63
14
look [32] 61315 724 911 108 13
18 168121416 1713 2021 21
19 2311 2817 311920 351 37
10 4111 4412 45119 4623 50
10 547 5511 6017 6221 6311 3815172121 391213 4118 131924 5018 51481221 526 L 642 667 4622 4848 49916 5214 5933 23 5822 623 6622 68410 labor [2] 591922 looked [4] 44 158 3020 4524
immunity [119] 312171820 419 Interpol [1] 83 landing [2] 5515 635 looking [2] 3523 212425 559 9152125 1024 interpret [1] 1017 language [8] 1017 1518 202 21 looks [3] 3618 3812 4313 11672123 1229911161925 interpretation [2] 3415 659 13 343 359 421215 lot [10] 2017 221 2814 319 446 13120 145141721 15219 16 interpreted [1] 343 last [1] 49 5516 5625 5812 6110 636 1 191922 20124 213925 223 interpreting [2] 619 359 late [1] 4120 lots [2] 420 6114 991922 2337131415 2436 intervention [1] 5322 later [3] 4916 3810 lower [3] 2722 309 6725 101125 259 26510 28152025
297 3025 3121 3251521 33 investigate [1] 6018
inviolable [1] 213
latter [1] 1717
Laughter [4] 172 2318 241 55 M
121522 3411117 3523 36110 involved [2] 149 661 20 made [10] 53 1223 1415 18910
15172224 37121319 3847 39 IOIA [21] 31115 11816 2023 22 law [46] 32425 61121 714 82 3924 469 4710 561 6723
215161722 411822 4223 434 17 2624 331120 3718 3869 1056 131516 1419 151212 mail [1] 3422
920 448 4525 463 47618 48 22 391 411921 4314 4410 46 15 1620 17151618 18567 21 main [1] 582
17 5017 516921 522025 53 18 498 593 14 3314 3515 3619 383 439 malaria [1] 591
14 5513 5720 582121 6214 65 ISMAIL [1] 13 20 4524 462 479 4911 508 53 managing [1] 81
182224 isnt [6] 1618 2513 31910 3711 22 571417 621014 631213 64 manner [1] 6715
important [5] 1324 502 5317 57 4419 281320 653 many [9] 413181818 725 1025
16 6416 isolation [1] 2020 laws [1] 306 2618 322 581
importantly [1] 257 issue [6] 1219 211116 5621 58 lawsuit [14] 1223 15225 4723 margin [1] 6111
Heritage Reporting Corporation Sheet 4 half - margin
73Official - Subject to Review
market [2] 820 2918
massive [2] 5324 545
match [1] 4418
materiality [2] 3423 355
materials [4] 372 426 4413 45
12
matter [7] 113 1716 466 5016
16 515 6417
matters [1] 5814
mean [14] 4111213 64 914 248
251 371 4211 451819 5212
5418 5617
meaning [7] 179 3315 351518
22 64310
means [4] 524 3517 421620
meant [3] 64 223 2910
measure [1] 126
measures [1] 6019
mechanism [2] 4617 6014
member [1] 5325
members [3] 486 5224 539
mentioned [2] 1813 417
mess [1] 453
metaphor [1] 634
metes [1] 1714
method [1] 6715
might [2] 718 6620
mind [2] 523 681
minimum [1] 1524
minute [2] 3722 5124
minutes [2] 523 6320
mission [1] 444
mistake [1] 53
Mister [1] 293
mixed [1] 923
mixing [1] 644
modern [1] 1817
moment [5] 4115 105 3921 65
16
monetary [1] 411
money [14] 41223 820 2413 30
7 541 569 59141423 602 612
15 627
months [1] 389
morning [2] 2017 3116
most [6] 232 257 3316 4722 53
16 551
move [3] 3611 515 535
moving [1] 3623
much [5] 141 2517 3112 395 40
21
multi-country [1] 5211
multilateral [1] 5725
multinational [1] 2911
must [4] 251718 351616
N Nader [2] 341921
narrow [1] 4915
narrower [1] 499
nations [4] 418 397 4011 5412
natural [1] 354
nature [2] 123 2924
necessary [4] 1720 3510 3912
6523
Neder [1] 641
need [7] 1116 306 3124 3268
3712 4318
needed [2] 291 3823
negligence [2] 56711
negotiate [4] 1214 143 2825 67
5
negotiated [3] 115 1220 3914
never [1] 6723
New [1] 2616
next [2] 34 6617
nexus [2] 2517 553
nobody [2] 59 925
Nobodys [1] 6217
non-commercial [1] 85
none [3] 4411 651925
normal [1] 3414
nothing [3] 101 2411 404
notwithstanding [1] 487
Number [6] 242424 2713 3115
4424 6421
numbers [1] 2621
O OAS [4] 113 1221 282224
OBB [3] 2520 5618 587
objective [1] 4914
obligations [5] 332022 409 41
24 6515
obvious [1] 4624
obviously [2] 4710 6721
occurred [2] 2622
occurs [1] 2519
October [1] 111
Office [1] 686
officers [2] 214 2220
official [1] 215
officials [2] 192021
often [1] 5917
Okay [5] 512 2323 24518 467
old [1] 187
once [2] 4315 4620
one [47] 41823 5118 6217 819
1317 14369 1622 173 1868
1113 191218 211116 2424 25
10 273 3013 3118 3618 3812
4014 4313 4722 4823 4925 50
67 54613 5512 6015 64717
65615 6624 67319 688
ones [1] 329
one-way [1] 225
ones [1] 582
only [8] 423 62 2116 225 2810
296 417 6510
open [1] 3117
opening [1] 267
operating [1] 6216
opinion [4] 69 1624 3424 5617
opponents [2] 321 61
opportunity [1] 143
opposed [1] 554
opposite [3] 417 1345
oral [7] 114 2259 37 2010 337
oranges [1] 644
order [6] 292 306 3823 4620 47
15
ordered [1] 5718
Ordinarily [1] 296
ordinary [2] 610 117
Organization [16] 1124 1421 19
321 372021 4020 4118 4622
477 4819 519 5223 5824 623
organizations [1] 2614
organizations [56] 31218 422 7
2225 824 101421 1111422
214 2221 232 2518 261923
281319 3120 3222 3323 3711
4010 4219 4427 4851424 49
17 5018 5141222 52611 53
121724 5712 596 609 6114
6212 6318 6521 661423 67
14 68410
original [2] 1118 203
originally [1] 1616
other [41] 421 6225 77 8621
23 95 13125 141019 1715 18
21 1924 2113 224 23312 24
16 2912 3212 3446 3622 39
20 441114 4511 469 4723 50
22 5221 6315 64918 657810
664 688
others [2] 1221 324
otherwise [2] 3517 408
ought [5] 813 161 3624 5321
6310
ourselves [1] 578
out [19] 6810 1413 2416 2813
4089 4325 449 5122 5411 55
9 581015 5977 616 656 676
over [7] 1620 3024 3525 4319
21 542324
overall [2] 4916 533
override [1] 5318
own [10] 615 12131317 1518
2815 5311 6011 6745
P pm [1] 6822
package [1] 411
PAGE [5] 22 3420 3717 4113
481
papers [1] 6414
part [5] 1219 1411 2122 4322
564
Parte [1] 1514
particular [6] 916 178 341820
362 5624
particularly [1] 2118
partly [1] 1120
parts [1] 5914
party [5] 2724 2923 3011113
passage [2] 416 4314
passed [5] 525 813 1316 452
6613
past [3] 41215 92
path [1] 5022
pathway [1] 156
pathways [3] 119 1721 181
pay [2] 5324 545
people [4] 369 5013 5718 6014
percentage [1] 2812
perfect [1] 183
perform [1] 6522
performing [1] 661
perhaps [1] 3110
permissible [2] 623 1321
person [3] 2320 4316 6120
persons [2] 5114 568
pertinent [1] 1618
Peru [1] 1514
petard [1] 6012
Petitioners [10] 141923 24814
38 201219 6322
phrase [1] 2020
pick [4] 164 2015 376 629
picks [1] 281
pile [1] 627
piracy [1] 6425
place [3] 4712 546 6517
plain [2] 314 1913
plaintiff [1] 311
plaintiffs [1] 6115
plant [1] 6121
plants [1] 6814
please [3] 310 2014 3310
point [17] 1718 281222 297 34
19 35111 377 4023 501924
524 53814 551 641216
points [8] 166 3115 3945 504
6324 6511 676
policies [1] 142
policy [9] 1079151516 1418
621923 6511
political [1] 1418
politically [1] 1423
position [5] 1525 1822 4610 66
810
possibly [2] 38510
potential [1] 6715
power [2] 249 6121
powerful [1] 613
practical [2] 101920
practice [1] 296
precisely [1] 3718
prescribe [2] 495 533
prescribed [1] 4716
prescribes [1] 3311
present [1] 324
presented [1] 2515
President [9] 55 1225 136 225
24 2313 243 3410 4619
Presidents [3] 1212 2214 475
presidential [4] 2123 22411 66
11
pressure [1] 446
presumptively [1] 252
presupposes [1] 4714
pretty [1] 3022
principal [1] 1113
principle [1] 614
principles [1] 5513
Heritage Reporting Corporation Sheet 5 market - principles
74Official - Subject to Review
prior [1] 65 10 394 441225 4722 512 61 397 4510 5111 57212123 seen [1] 1520
private [12] 81421 2724 2912 23 respectfully [3] 366 373 4510 self-policing [1] 614
182223 3011113 5915 6818 reams [1] 61 Respondent [4] 1725 211 338 Senate [6] 123 41111516 4224
privileges [4] 233 4622 4848 reason [17] 109 1891012 1910 Respondents [1] 269 5117
probably [3] 815 93 5813 23 2212 3222 3319 4615 511 Respondents [2] 2112 236 sense [5] 183 221 247 3317 38
problem [8] 911 137 1420 3711 8910 541521 6816 response [3] 918 4024 5410 6
564 601720 6720 reasons [7] 1621 173 517 5417 responses [1] 2419 sensitivity [1] 4025
problems [2] 149 5516 181923 responsive [1] 1115 separate [2] 818 5113
process [4] 46511 479 6023 rebuild [1] 444 rest [1] 206 serious [3] 2511 263 6111
procure [1] 144 REBUTTAL [3] 212 206 6321 Restatement [1] 5119 set [3] 218 441 499
profit [1] 820 receive [3] 2222 2310 5224 restrictions [1] 304 sets [1] 212
programs [1] 825 received [1] 234 restrictive [8] 117 265 297 36 setting [1] 176
project [1] 5924 receiving [1] 4818 1124 3713 3922 5513 settled [2] 3315 3515
projects [4] 821 555 6016 6818 reciprocal [1] 4818 result [1] 636 settles [1] 2021
promised [1] 448 reciprocity [3] 4811 521021 retroactive [2] 131821 several [1] 211
property [1] 3821 reconsider [1] 3625 retroactivity [1] 1319 shall [4] 4619 486 492225
proposition [2] 4318 6419 Red [1] 5823 retrofit [1] 4418 shouldnt [4] 91620 511 5421
protection [1] 2624 redirect [1] 5323 reverse [1] 333 show [1] 4723
protections [2] 591920 redress [1] 3218 Rights [2] 655 666 shows [1] 231
prove [1] 3825 reduce [2] 3410 476 risk [1] 5710 side [20] 62625 8619 95 131
provide [9] 232 2923 3321 37 refer [3] 415 1619 2114 ROBERTS [9] 33 207 334 522 25 1419 1924 3215 344 3920
19 387 39111 4222 433 reference [10] 159 165 1719 18 5425 5616 576 6318 6820 4414 4511 469 5022 6418 65
provided [2] 2216 3817 11 1911 219 5055 6420 652 robust [2] 5919 6013 811
provides [2] 2024 3822 referenced [2] 611 185 roll [1] 226 sides [3] 1410 1821 4724
providing [3] 3416 38316 referential [1] 2113 roll-back [1] 2124 signed [1] 3910
provision [16] 3141723 116 17 referred [1] 2120 ruinous [1] 6625 significant [3] 4924 5815 626
6 2123 222614 2311219 28 refers [3] 323 167 2312 rule [13] 322 1425 1511 1757 similar [1] 487
16 4225 483 501 regard [2] 2567 20 1925 212 2610 351213 65 similarly [1] 474
provisions [8] 1320 212814 34 regardless [1] 2514 1 683 simply [4] 528 554 5625 6325
7 49521 5010 regiment [1] 1222 rules [4] 1919 2219 3414 6616 single [1] 4316
public [2] 825 6819 regimes [2] 6422 652 Russians [1] 4421 sitting [1] 1813
punitive [1] 6118 regular [1] 686 S situation [10] 611 1323 161 18
purpose [9] 46 101112161619 regulating [1] 813 4 457 479 4815 521822 625
111820 3318 regulation [1] 725 safer [1] 102 situations [1] 498
put [10] 712 122 292 4415 4711 regulations [1] 305 Samantar [1] 4525 slip [2] 2613 687
531123 5424 5921 Rehnquist [1] 3425 same [22] 3121618 721 1299 so-called [1] 6720
putting [1] 4422 reintroduce [1] 1420 11 1559 1919 3324 3916 422 soft [2] 5515 635
Q rejected [1] 624
related [1] 377
10 433 451317 49182225 54
16 653 solely [1] 354
Solicitor [4] 120 113 676 685 quasi-sovereign [1] 3018 Relations [1] 5120 San [2] 5115 548 sometimes [6] 1113 166 1816 question [13] 71112 107 1122 relief [2] 41112 satisfy [1] 6722 194 4545 1425 164 1822 2421 2514 34 remain [1] 1311 save [1] 205 somewhat [1] 6415 13 4517 4721 559 remains [1] 137 saying [11] 98 292024 3811 40 somewhere [1] 2622
questions [6] 78 109 1317 18 remedial [1] 6019 15 4317 5217 5511 5610 5923 sorry [2] 1921 2319 17 333 436 remedy [2] 62223 6516 sort [10] 1323 26811 27222325
quintessential [1] 2611 Remember [7] 1112 128 1411 says [17] 621 95 176 191820 2925 30811 6716 quite [9] 45 111519 299 4120 4324 521 538 5716 357 3717 4116 421224 4618 sorts [2] 2717 6125 4714 4915 503 5114 remotely [1] 4317 48319 492125 541112 SOTOMAYOR [16] 1218 1359
quo [2] 4513 removing [1] 3025 scholars [1] 4114 1112 146 2617 2726911 345 quotes [1] 4115 renovated [1] 2613 scientific [1] 83 401619 4721 662
R repeat [1] 633 scope [3] 3814 4916 5214 south [1] 3211
raised [1] 1219
range [2] 2622 4816
ratchet [1] 225
rates [1] 820
rather [4] 92121 205 267
ratification [2] 4013 4112
ratified [1] 407
ratify [2] 3918 416
read [3] 372 52716
reading [2] 2019 354
real [1] 5710
really [12] 54 9202224 2020 37
reply [2] 618 646
report [10] 123 41111516 4224
511517 54710 6022
request [1] 3613
require [3] 2819 4610 5625
required [2] 1819 6518
requirement [2] 303 553
research [2] 844
reserving [1] 1912
residents [1] 3216
resolution [1] 82
resources [3] 53101320
respect [10] 215 372424 3813
second [8] 52 72 103 168 18
12 2325 3510 4920
Secondly [1] 679
Secretaries [1] 6222
section [17] 141212 1612 1915
16 201824 21101011 221315
2410 331 343 4616 4725
sector [2] 81421
see [10] 9142223 2118 3221 39
6 451 546 5911 6124
seeking [1] 3217
seem [1] 5624
seems [2] 102 2416
Sovereign [11] 320 9152125 19
6 2719 3041525 4320 5219
sovereigns [8] 197 302 4825
511113 527924
special [6] 88 1024 115 1219
371415
specialized [1] 3819
specific [6] 1619 176 1811 56
20 571 6410
specifically [1] 5411
spending [1] 91
spent [1] 569
stages [1] 4022
Heritage Reporting Corporation Sheet 6 prior - stages
75Official - Subject to Review
stand [1] 6414
standard [20] 33111625 3411
24 361113162123 4318 4612
471617 4912 5344 5422 62
15
standards [7] 4956 59222225
60310
Stanford [1] 118
start [5] 521 15711 3412 6324
started [1] 1522
Starting [2] 321 78
State [23] 55 7141518 9716 18
25 198 2114 2823 3525 3610
14 3922 402 4422 4545 4611
471 54913 6223
statement [1] 378
STATES [39] 111522 27 418
11312 2011 25219 2620 271
3111 3324 3652021 378917
21 3816 391618 42210 4815
16 4919 514 5218 5318 5547
11 562 6220 68811
States [1] 6225
status [5] 3523 4513 5110 54
18
statute [32] 47 525 74 101212
129 167791111 35616 3715
382823 46152124 4819 49
21 5067 533 5512 62218 63
25 642425 654
statutes [2] 3716 509
statutory [13] 323 51922 176
3317 3415 359 4720 501 58
22 6422 6529
Steamboat [2] 61724
step [1] 3510
steps [2] 723 5620
still [2] 137 5224
stilted [1] 1815
stood [2] 367 374
streets [1] 2616
stronger [1] 2517
structural [1] 4719
structure [4] 315 2022 2122 47
12
stuck [1] 910
stuff [1] 75
subbed [2] 6245
subcategory [1] 4920
subject [5] 12111314 3223 54
13
submit [3] 1410 155 615
submitted [2] 682123
subsection [5] 19181820 2022
subsequently [1] 1615
substantiate [1] 3810
substantive [4] 3325 471617 53
4
suddenly [1] 3025
sue [3] 3211 611622
sued [4] 232022 3220 604
suggest [3] 344 366 639
suggested [1] 6217
suggesting [1] 5023
suggestion [2] 364 6717
suggestions [1] 1417
suing [2] 611920
suit [18] 312 41 524 6412 72
1314 15311 215 233 251322
25 312124 3223 606
suits [6] 312224 321131619
support [1] 4114
supporting [3] 122 28 2012
supports [1] 536
SUPREME [2] 1114
surrounding [1] 4314
Sutherland [2] 613 1725
sweep [2] 724 258
sweeping [1] 6419
Switzerland [1] 98
system [2] 4325 4712
systems [1] 5918
T talked [2] 6625 686
talks [3] 811 6418
tandem [2] 515 535
target [1] 6114
Tate [6] 361819 3921 403 437
464
tax [1] 3821
tells [1] 531
tense [1] 324
Tenth [1] 1814
term [3] 410 64310
terms [1] 643
terms [5] 3314 351419 47419
test [2] 1521 6722
Texas [1] 6814
text [16] 31421 51922 191315
15 2018 3313 352235 4720
4812 6325
textual [1] 75
themselves [2] 616 6710
theory [2] 1224 3919
theres [23] 920 181 1910 2016
2111 2622 3118 359 363 403
12 446 4715 4923 5522 5718
581417 601719 6479 671
therefore [3] 342 3624 6316
theyve [2] 3715 4417
thinking [3] 425 4323 5421
third [3] 913 231725
third-party [1] 677
thirdly [1] 1215
three [2] 218 3720
tie [1] 1715
tied [1] 1016
today [5] 1917 2115 236 3710
4019
together [1] 539
took [1] 1718
tort [8] 5325 545 611 622 6423
67911 686
tortious [1] 261
towards [1] 3623
Trade [1] 3720
traditionally [1] 3111
transaction [3] 2925 3011 3210
transactions [1] 814
Treasury [1] 6223
treat [4] 1216 3323 432
treated [4] 3324 398 42210
treatise [2] 613 1725
treatment [7] 4219 48131418
491822 6814
treaty [17] 121417 332022 381
2121324 4124 422122 4311
597 6515 665
tried [1] 497
true [9] 45 721 2119 369 3725
3813 401 496 5416
Truman [1] 1825
Trump [1] 6614
try [4] 1816 406 444 5819
trying [7] 3023 3225 4324 4414
17 4915 532
tuberculosis [1] 5825
tune [1] 4825
turn [2] 104 1117
turning [1] 1416
two [15] 416 518 77 1317 1621
17321 181 2025 2113 49323
535 6413 671
type [2] 15325
types [1] 5723
U UN [16] 1013 1220 381819 39
10131424 40717 4121717 51
16 549 664
US [5] 321618 3420 382 5322
ultimately [1] 616
un-developed [1] 5917
unanimous [1] 3425
uncertainty [1] 5816
under [22] 319 118 1224 1424
22514 26524 322 3515 382
18 398 4119 4620 501 569 57
13 617 6221418
understand [2] 1821 261
understanding [1] 658
understates [1] 579
Understood [4] 2417 299 3713
4121
undertaken [1] 386
UNITED [33] 111522 27 1112
2011 2519 262025 3111 365
2021 378917 381516 39718
4011 4816 5218 5318 5412 55
4711 562 622025 68711
unless [2] 3516 5916
unlike [1] 5818
unlikely [1] 5518
until [3] 389 3919 4012
up [18] 44 923 164 2015 2225
281 322 37771023 383 441
717 5925 603 629
urge [2] 1914 667
urging [1] 416
uses [2] 178 3514
usual [1] 295
V various [1] 6517
vast [1] 258
Verlinden [1] 4525
VERRILLI [25] 124 210 33679
3412 363 401823 42813 43
11 4591618 468 492 5215 55
621 56313 5747 641
version [1] 6125
versus [2] 34 618
view [1] 2913
violation [1] 3924
virtual [1] 3312
virtually [22] 331521 34117 36
1622 3817 391151623 4122
4223 433 462 4717 4817 52
20 5720 621113 6518
vitally [1] 502
W waive [7] 917 2313 24310 3121
2124
waived [1] 324
wanted [4] 1711 19125 231
wants [1] 6313
War [1] 446
Washington [4] 1102124 583
wastewater [1] 6814
way [29] 6920 1216 1322 1421
157 1615 172325 2416 2516
21 3446 3822 3967 423515
4913 5216 5620 5713 5912 62
21 6537 6818
ways [3] 211 2211 671
wealth [1] 196
website [1] 811
Wednesday [1] 111
well-established [1] 3512
whatever [1] 2311
wheres [1] 571
Whereupon [1] 6822
whether [7] 1321 156 2914 34
22 361 3825 6412
whole [4] 2025 3818 411 5817
wide [1] 3814
will [11] 311 3816 431921 5021
5224 551515 578 635 6618
win [2] 5889
wire [1] 3423
wit [1] 6418
within [5] 8916 106 369 562
Woods [2] 4325 441
word [11] 48101415 522 610
1589 1789 4014
words [5] 128 224 2912 5221
6520
work [8] 2213 2416 449 4710
616 63715 6811
workable [1] 1423
worked [1] 4917
workers [1] 413
works [1] 825
World [13] 81722 2716 283 30
Heritage Reporting Corporation Sheet 7 stand - World
76Official - Subject to Review
2224 324 3720 44555 5823
5915
worry [1] 5514
write [1] 674
writes [1] 174
wrote [2] 4910
WTO [1] 3812
Yyear [1] 6423
York [1] 2616
Heritage Reporting Corporation Sheet 8 World - York
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moment of suit in any given case
And indeed they dont dispute -shy
JUSTICE BREYER So the hornbooks that
I looked up going back forever dont say
quite that They say thats true as long as
the changes are consistent with the purpose of
the adopting statute And indeed the Indian
case you know the word was now was it now
1934 or now later In the case we wrote last
term that Justice Gorsuch wrote the word was
monetary relief Does that mean as of the
past or does it mean what we call money relief
now I mean there are many cases like that
And here the word is is Does the
word is refer to the past is at the moment a
passage or later The two arguments that Id
like you to address that are opposite you are
one states do many things nations many many
things and so if we take immunity from them
for commercial things we leave lots of
immunity with them for those other things
But international organizations some
of them do only one thing lend money or the
equivalent And if we take immunity from them
thats the end of the immunity or close
Heritage Reporting Corporation
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Thats one argument
The second is this If we decide
against you and weve made a mistake or along
comes a case where they really should have
immunity the President and the State
Department can give it to them
If we decide with you well if along
comes a case where they should enjoy the
immunity no nobody can do anything Did I
say that correctly Have you got the
argument -shy
MR FISHER Okay
JUSTICE BREYER -- or have I said it
backwards
MR FISHER No no no
JUSTICE BREYER Did I say it right
MR FISHER So I think you gave me
two things and then one before it which was
the statutory text
JUSTICE BREYER Yes Thats right
MR FISHER So let me start with the
statutory text Justice Breyer And the word
is in this Courts jurisprudence always
always means at the time of suit not at the
time the statute was passed And weve cited
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reams of cases to that effect My opponents
cite only one case on the other side thats an
Armed Career Criminal Act case Even there
is didnt mean at the time of suit it meant
at the time of the prior conviction So is
is on our side of this case
But in Carcieri which is the now
case the Indian case the Court went out of
its way in that opinion to say the insertion of
the word now takes us out of the ordinary
situation which is when the referenced law
applies at the time of suit And so you can
look at the Sutherland treatise which dates
back to 1904 on this principle
And look at its -- in -- in your own
case Justice Breyer I think if I was going to
give you one case it would be the Steamboat
versus Chase case we cite in our reply brief
Thats interpreting the Judiciary Act which
goes all the way back to the founding of
course and says where the common law is
competent to give a remedy such and such a
remedy is permissible
And in Steamboat the Court rejected
the exact argument the other side makes here
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which is first of all that the law had to be
incorporated at the time of suit and second of
all that there was something different about
the common law as to a statute at the time of
the enactment So all of the textual stuff is
in our favor
Now youve also asked me two other
questions and let me address them So starting
with the commercial activity exception as
applied to a group like the IFC when you
answer -- when you think of that question its
a question of how close you -- you put the lens
into whats going on here
So if you just take a foreign state as
the -- as the comparator here a foreign state
itself does all kinds of things Like you
said Justice Breyer they are not commercial
activity But a foreign state might have a
bank for example that does almost all
commercial activity
And so the same thing is true with
international organizations and let me answer
that in a few different steps So first of
all look at the sweep of international
organizations Many do things like regulation
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for example managing fisheries They do
things like dispute resolution law
enforcement Interpol They do scientific
research and agricultural research All of
those things are non-commercial activities on
the other side
Then you have the category the
special category of lending banks but even
within lending banks not all the things that
lending banks do are commercial activity The
IFC itself on its website talks about how it
gives advice to foreign governments about
legislation that ought to be passed regulating
financial transactions with the private sector
That is not probably commercial activity
And then even within lending
activities Justice Breyer just take the World
Bank it has five separate institutions Now
the IFC is on one side What the IFC does is
-- is loan money at market rates for profit for
private sector projects There are other
components of the World Bank and there are
other lending institutions that are
international organizations that give grants
for public works programs or that do the kind
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of spending that governments do And the
governments argued in past cases and we think
theyre probably right that that is not
commercial activity either
So when the other side says well
everything is commercial activity its no
different than the foreign state coming to this
and saying well if the Bank of Switzerland
does commercial activity then were -- were
stuck Well no no no its just how closely
you look at the problem
JUSTICE BREYER What about -- the
third was if we -- if we decide with you -- if
we decide against you see that would mean
there is sovereign immunity But there
shouldnt be in a particular case the State
Department can waive it and they have to be -shy
response
But if we decide for you and then
theres a case where there really shouldnt be
sovereign immunity or rather -- rather there
really should be I guess -- see thats what
Im getting mixed up You see if we decide
against you and they really should have
sovereign immunity in this case nobody can do
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anything So knowing nothing about the
future it seems a little safer the first
than the second
MR FISHER Well Im going to turn
back in a moment to the law and why that just
cant fit within the law but as to just the
policy question youre asking me even there -shy
JUSTICE BREYER Well you can look -shy
the reason I ask policy questions is because
the hornbook said yes apply it as of now as
long as its consistent with the purpose of the
statute And the purpose of the statute going
back to 1945 and the UN and everything was
to get these organizations to locate here
So its not just policy for policy
Its policy for purpose And purpose is tied
into how you interpret the language
MR FISHER So let me give you the
practical answer and then the purpose answer
On the practical answer
organizations especially if they want a
headquarter here or are headquartered here are
fully able to -- to lobby Congress or the
executive branch for special immunity And
there are many examples across international
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organizations
Take the Organization of American
States OAS And the solicitor general
discusses this in -- the organization in its
brief In 1994 it negotiated a special
immunity provision for itself to get more than
the ordinary restrictive form of immunity that
was available under the IOIA
So there are -- there are pathways
available and they have been used even more
so
Remember the United States as you
say has a -- has a sometimes principal
interest in these organizations So it is
quite responsive to them when they come and
say We need more than the IOIA gives us
But Justice Breyer let me turn back
to the -- the original purpose which was the
legislative history is quite clear on what the
purpose was As you say this was partly to
create a form of immunity to give some comfort
to these organizations But the question is
what form of immunity did they ask for and what
did they get
What they did is they came to Congress
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and said treat us like foreign governments
Give us immunity as Congress put it in a
Senate report of a governmental nature And
so what did Congress do It gave them exactly
what they asked for It said were going to
treat you as a default measure like a foreign
government
And remember the words of the
statute are same immunity Same immunity
as is enjoyed by federal governments So were
going to give you the same immunity subject to
the Presidents ability to just -- adjust it
and subject to your own ability and your own
treaty to negotiate for more and subject
thirdly to Congresss ability to give you some
immunity that you dont have even by way of
your own treaty
JUSTICE SOTOMAYOR Can we go to that
issue raised in part The special immunity I
know was even negotiated by the UN I think
in the 1990s and OAS and others but assume
that were in your regiment and Justice Breyer
made the assumption that if a lawsuit came to
us now under your theory and it was limited
immunity that the President or Congress could
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give immunity to the other side
I dont think so
JUSTICE BREYER No its the
opposite
JUSTICE SOTOMAYOR The opposite The
President cant decrease it correct So that
problem still remains with your -shy
MR FISHER Well -shy
JUSTICE SOTOMAYOR Yeah
MR FISHER -- I think it -- it may
or may not remain Justice Sotomayor
JUSTICE SOTOMAYOR Thats my -shy
MR FISHER Certainly we could -- we
would say we can go forward on this suit
because -- because there is no such law
If that law were passed youd have
two questions One is did Congress make it
retroactive And you look to Altmann to think
about how to judge the retroactivity of
immunity provisions And then if it were
retroactive whether that were permissible
But you know were a long way from
-- from that sort of a situation I think the
important thing going forward and this is I
think what the concern is on the other side
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is not so much about this case but about
incentives and policies going forward they
have every opportunity to negotiate in one form
or another or to procure a heightened form of
immunity
And Justice Sotomayor let me say one
more thing to you and Justice Breyer about you
know the idea of the executive branch getting
involved This is one of the problems I
submit with the other sides argument
Remember part of the goal of the FSIA
in the first section of the Act in Section 1602
is to get -- is to get the executive branch out
of the immunity business
Congress made the determination that
it was a bad idea to have every case turning on
individualized suggestions of immunity and
executive branch political policy And so the
other side by importing the common law of
1945 would reintroduce that problem into
international organization immunity in a way
that we dont think would be very good
politically or very workable in the courts
And Id hasten to add that even under
the rule of 1945 if the question were what
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does the executive branch think about any given
lawsuit or any given immunity for any given
type of suit that would just lead you right
back to the FSIA and it would lead you back to
the same conclusion that we submit to you here
So either pathway whether Justice
Breyer you start with the way youve always
looked at cases with the word is and the
word same and the reference canon that Ive
described and say all of those things lead you
to a time of suit rule or if you start with
the law of 1945 and say what was the law in
1945
Well Hoffman and -- in Ex Parte Peru
were clear that the law of 1945 was the
executive branch decides and its not for the
Court -- this is -- Im going to give you the
Courts own language -- its not for the Court
to give immunity where the executive branch has
not seen fit to give it
And if that were the test youd come
right back to where you -- where I started
here which is that the FSIA would control or
at the bare minimum the executive branch
position in this lawsuit on the type of
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immunity that ought to apply in this situation
would control So -shy
JUSTICE GORSUCH Mr Fisher if I can
pick up on Justice Breyers question The
reference canon I take all -- all of your
points but sometimes lets say we have a
statute that -- that refers to another statute
Usually we would look at the second
statute thats being incorporated as of the
time of -- of the adoption of the first
statute Right So if -- if this statute were
to say go look at Section 5 -shy
MR FISHER Right
JUSTICE GORSUCH -- we wouldnt look
at it the way its been subsequently amended
Wed look at it as it was originally enacted in
1945
Why isnt that -- that idea pertinent
here you know when we refer to a specific
law we dont take it to evolve over time
MR FISHER So for two reasons
Justice Gorsuch and one of them if youll
forgive me is going to be something you said
in the Alan Contoe opinion
JUSTICE GORSUCH I was afraid of
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that
(Laughter)
MR FISHER But for two reasons One
is Congress has a choice to make when it writes
legislation It can lock in a given rule by
setting a specific statutory provision and says
thats the rule we want just like if Congress
uses a particular word at the time of the
enactment the meaning of that word at the time
of enactment would be what Congress -- wed
assume Congress wanted
Or Congress could do something
different which is to say look were not
sure exactly of the metes and bounds of the
law Were just going to tie it to this other
area of law as a general matter And thats
what Congress did here It did the latter
So it took an area of law as a point
of reference and said Just use that as the
default rule and then adjust as necessary And
those are just two different pathways Congress
can go down
And they date as I said all the way
back to the First Judiciary Act there in the
Sutherland treatise all the way back to 1904
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and so theres just two different pathways
Congress can go down
And it makes perfect sense I think
in a situation like this especially where you
have a common law doctrine being referenced at
least a common law at the time and one that
was indeed not just any old common law
doctrine but one that was in a great deal of
flux at the time So it made every reason -shy
it made every good reason for Congress to have
a general reference not a specific one
And then the second reason Justice
Gorsuch is the one you mentioned sitting on
the Tenth Circuit which is that as time goes
by it becomes all the more stilted or
antiquated or even foolish sometimes to try to
answer questions in the modern day according to
what some bygone era doctrine would have
required and especially a bygone era doctrine
like this
If I understand the other sides
position correctly basically the question
theyre having -- they would want every federal
court to ask in these cases is what would the
Truman Administrations State Department have
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wanted to do in this case
And when you have things like this
which didnt even -- an organization that
didnt even exist at the time sometimes doing
activities that werent even contemplated at
the time things like sovereign wealth funds
which foreign sovereigns now engage in for
example who knows what the State Department
would have thought then
I think theres every reason then to
fall back on the reference canon And if I can
say one more thing before reserving my time if
you have any doubt about just the plain text
argument Ive given you I would urge you to
compare the text in Section 288a to the text -shy
Section 288d which has the exact dichotomy
that -- that Ive been discussing today
One subsection subsection (a) says
that the same immunity rules apply and
subsection (b) says that foreign officials -shy
Im sorry international organization officials
are entitled to absolute immunity
So this is yet another reason why if
the other side were correct and if Congress had
wanted to lay down the rule they did why would
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they not have just used the absolute immunity
language in subsection (b) of subsection (d)
and that indeed was the original draft of
this act that was discarded
So I could go on but Id rather save
the rest of my time for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Ellis
ORAL ARGUMENT OF JONATHAN ELLIS FOR
THE UNITED STATES AS AMICUS
CURIAE SUPPORTING THE PETITIONERS
MR ELLIS Mr Chief Justice and may
it please the Court
If I could Id just like to pick up
right where my friend left off Theres been a
lot of discussion so far this morning on the
text of Section 288a We agree that the
Petitioners have the far better reading of that
phrase in isolation but I think it really
settles the deal when you look at the entire
structure of the Act
The -- the IOIA doesnt just grant
immunity in Section 288a(b) but it provides a
whole host of immunities and it does it in two
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different ways In several different
provisions the Act sets a fixed rule of
immunity So archives are inviolable and
officers and employees of the organizations are
immune from suit with respect to their official
acts
And then there are a -- a host a
collection of three provisions that set the
immunity by reference to foreign governments
Theyre Section 288a(d) Section 288d(a) and
theres Section 288a(b) the one at issue here
Respondents concede that the
referential language in those other two
provisions do refer to the state of the law as
it is today
Its only the one thats at issue in
this case that they say was frozen We dont
see how that can be and thats particularly
true when you look at the drafting history that
my friend referred to
JUSTICE KAGAN Mr Ellis before you
get to that another part of the structure is
this provision that deals with presidential
authority and thats essentially a roll-back
authority of immunity
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Doesnt that make a lot more sense
that provision if you assume that Congress
meant for there to be absolute immunity In
other words the presidential authority is a
one-way ratchet The President can only under
this provision roll it back It cant increase
it
So to me if I -- if -- if -- if -shy
if the immunity -- if the immunity is less than
absolute you would think that they would have
given the presidential authority both ways
MR ELLIS Sure The reason that
argument doesnt work is because Section 288
the Presidents authority under that provision
doesnt just apply to Section 288a(b) It
applies to all of the immunities provided by
the IOIA
And as I was just describing some of
those are fixed immunity rules that are not
absolute And so for instance the officers
and employees of international organizations do
not receive diplomatic immunity That was a
big deal at the time
And -- and yet the President cant -shy
couldnt grant that up I think what that
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provision shows is that Congress wanted to
provide international organizations at most the
immunity from suit and other privileges of
immunities that foreign governments received
and not more so
And yet Respondents are here today
asking you for exactly that more immunity -shy
JUSTICE BREYER But on that -shy
MR ELLIS -- than foreign
governments receive
JUSTICE BREYER But look whatever
other things it refers to the provision allows
the President to waive immunity not to grant
immunity And your argument is they have
immunity Right
Do I have -- I get this backwards
This is the third time Ive got it backwards
(Laughter)
JUSTICE BREYER Sorry The provision
allows the person to be sued Is that right
MR ELLIS It does allow them to be
sued
JUSTICE BREYER Okay So I was
right I had it backwards the first time but
not the second not the third all right
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(Laughter)
JUSTICE BREYER It allows the
President to waive the immunity
MR ELLIS Thats right
JUSTICE BREYER Okay It doesnt
allow him to grant the immunity
MR ELLIS It does in a sense I
mean -shy
JUSTICE BREYER But the power to
waive the immunity at least in this section
amounts to nothing if they have no immunity
because for example all they do is lend
money
MR ELLIS So -- so a couple -shy
JUSTICE BREYER Thats -- thats -shy
and the other way it seems to work itself out
MR ELLIS Understood
JUSTICE BREYER Okay
MR ELLIS A couple responses to
that Your Honor
JUSTICE BREYER Thats the question
I think
MR ELLIS Glad to be able to address
that Number -- number one just to be clear
we -- they do have a great deal of immunity I
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mean foreign -- international organizations
and foreign states are presumptively immune
And I would agree with almost everything
that -- maybe everything that -- that my friend
said about why the commercial activity
exception even with regard to IFC and -- and
most -- more importantly with regard to the
vast sweep of these organizations is not going
to eliminate immunity
I would add one more is that even a
case like this we have serious doubts I
think -- we think in fact from what we know
this suit isnt going to be able to go forward
regardless of the answer to the question
presented because in addition to having -- to
being connected in some way to commercial
activity there must be a much stronger nexus
It must be based on commercial activity that
occurs in the United States
We think the Courts decision in OBB
makes clear that the way you apply that is to
ask Whats the gravamen of this suit Its
not enough to have some attenuated connection
but whats the gravamen
And the gravamen of this suit as we
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understand it is -- is tortious conduct that
occurred in India injuries that occurred in
India And we dont think -- we have serious
doubts that this is going to be able to go
forward even under restrictive immunity
And so we do not think that what were
doing is opening the floodgates here rather
that the sort of concerns that would be barred
-- cases that would be barred by Respondents
absolute rule of immunity and would be allowed
by ours are -- are sort of quintessential
domestic disputes contract disputes with your
contractor who renovated the building the slip
and fall at the -- at the organizations
headquarters or the driving accident on the
streets of New York and DC
JUSTICE SOTOMAYOR Do you have -- do
you have any idea about how many of these kinds
of organizations are headquartered in the
United States
MR ELLIS I think the numbers are in
the 20 to 30 range Theres about -- somewhere
80-some organizations that have been designated
for protection under IOIA and 20-some that have
-- I think are headquartered in the United
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States
JUSTICE SOTOMAYOR That are
commercial like this one
MR ELLIS No no no No I did
not -- no
JUSTICE SOTOMAYOR Were -shy
everybodys assuming -shy
MR ELLIS Right
JUSTICE SOTOMAYOR -- a floodgate
MR ELLIS Sure no There are -shy
JUSTICE SOTOMAYOR Including Justice
Breyer
MR ELLIS -- there are a number of
development banks but even then even -- even
the development banks even if you talk about
the World Bank its not clear that those
commercial activities are the sorts that the -shy
the FSIA captures with the commercial activity
exception Lending there is to sovereign
governments
And -- and as the Court has been -- as
lower courts have explained that sort of
commercial activity is not the sort that a
private party could engage in So its not the
sort that the commercial activity exception
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picks up
JUSTICE BREYER Well I -- I have the
IFC the IMF the World Bank the
Inter-American Development Bank the Asian
Development Bank the African Development Bank
the International Development Association So
I -shy
MR ELLIS Sure I -shy
JUSTICE BREYER -- Ive got -- thats
only half of them
MR ELLIS Thats -- that -- Im not
sure what percentage that is I want to point
out that some of those organizations -shy
JUSTICE BREYER There are a lot
MR ELLIS -- have their own immunity
provision in the -- in their charter And so
thats what we think -- if you look at the
history thats what -- thats how it has been
dealt with for organizations that require
absolute immunity Weve entered into
agreements
I would point again to the OAS
agreement where the State Department is just
crystal-clear that what OAS did in that
agreement was to negotiate absolute immunity
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because they thought thats what they needed in
order to put their headquarters here
JUSTICE KAGAN But Mister -shy
MR ELLIS We agreed to that and we
said But hey this is not our usual
practice Ordinarily we -- we afford only
restrictive immunity We point to the FSIA
JUSTICE KAGAN Mr Ellis I -- I
guess Im not sure I -- I quite understood what
you meant As to the core lending activities
of these multinational development banks in
other words making loans where private actors
would not make loans do you have a view as to
whether that counts as a commercial activity or
not
Did you say that that would not count
as a commercial activity because theyre making
loans that the -- that the private market would
not make
MR ELLIS No Im -- Im not saying
that its -- that its enough that theyre
making loans that a -- that a private -- they
couldnt find a private party to provide Im
saying if the nature of the loan is such that
its -- its not the sort of transaction that a
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private party would enter into so think about
the IMF that grants -- that lends to sovereigns
and they do so on the requirement that the
sovereign enact certain restrictions -shy
regulations and change their -- their -- their
laws in order to assure that they dont need
the money again
That is the sort of thing thats been
held by lower courts and weve advocated is
not a commercial activity Thats just not the
sort of transaction that a private party can
enter -- enter into Its not just that a
private party didnt Its that -- that no one
-- thats not something that you can do
Thats a sovereign act
JUSTICE BREYER But can you give
me -shy
MR ELLIS Or a quasi-sovereign act
JUSTICE BREYER -- anything to assure
me because when I looked through this list I
thought that there were development banks like
the World Bank which is a pretty big deal as
well as in Asia in Africa were trying to
encourage development all over the world and
suddenly by removing the sovereign immunity
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because the plaintiff will claim this is a
commercial activity
MR ELLIS So -- so -shy
JUSTICE BREYER And youre not
denying it
MR ELLIS And so -shy
JUSTICE BREYER So what is the
assurance that the government can give us that
this isnt going to lead to a lot of lawsuits
and this isnt going to interfere with perhaps
activity that the United States traditionally
has been very much in favor of
MR ELLIS Absolutely Let me -- let
me give you a couple things I think weve
given you a number of -- of points already this
morning as to why we dont think the floodgates
are going to open
If -- if theres one more Ill say
just look at the -- the charter of these
organizations Look at the IFCs charter
They already waive suit waive immunity for
suits going directly to their core activities
They -- they in fact indicate that they -shy
they need to waive suit in these suits
And so I -- I think when youre
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talking about what are the suits that are going
to come up under commercial activity many of
them are already going forward because the IFC
and the World Bank and others have waived their
immunity
JUSTICE GINSBURG And they need to
because
MR ELLIS They need to because no
ones going to enter into a financial
transaction with them if they -- they know they
cant sue if it -- if it goes south
The other thing -- I want to also
focus the Court on the -- on the suits that we
know are not going to go forward on the
absolute immunity side Were talking about
suits by -- by US citizens and residents
about domestic conduct and theyre seeking
redress in US courts
These are the suits that foreign
governments are -- are able to be sued on and
dont have immunity And we dont see any
reason why international organizations should
not also be subject to suit in those
circumstances and we think thats exactly what
the Congress was trying to do when it enacted
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Section 288 in 1945
If there are no -- no further
questions we ask the Court to reverse
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Verrilli
ORAL ARGUMENT OF DONALD B VERRILLI
ON BEHALF OF THE RESPONDENT
MR VERRILLI Thank you Mr Chief
Justice and may it please the Court
The IOIA prescribes a standard of
virtual absolute immunity that is fixed and not
evolving We know that because the text
incorporated common law terms that had a
settled meaning of virtually absolute immunity
and because a fixed standard makes the most
sense in light of the statutory context and
purpose
Now the reason that Congress enacted
the IOIA was to fulfill treaty obligations that
committed us to provide virtually absolute
immunity Those treaty obligations did not
commit us to treat international organizations
the same as foreign states were treated They
committed us to the substantive standard of
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virtually absolute immunity
And therefore if -- if -- if the
language in section 288b is interpreted in the
way my friends on the other side suggest -shy
JUSTICE SOTOMAYOR So why didnt
Congress say that the way it did in the other
provisions of this Act And if it intended
that in no change it could have said it and
given the very exception it gave which is that
the President or the executive could reduce
immunity which was the standard at the time
MR VERRILLI So let me start with
the basic question We think if the Court
applies the normal rules of construction that
it applies in statutory interpretation cases
that Congress did say that it was providing
virtually absolute immunity
And I think a case in particular that
I would point the Court to is the Nader
decision 527 US and in particular to page
21 of the Nader decision Thats a case -shy
that case of course was about whether mail
fraud and wire fraud incorporated a materiality
standard This is an opinion by Chief Justice
Rehnquist unanimous for the Court on this
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point The Court said first we look to the
text of course and when looking to the text
if we -- if -- and in looking to the text
based solely on a natural reading of the full
text materiality wouldnt be an element of the
fraud statute
And then the Court says But that
does not end the inquiry because in
interpreting statutory language theres a
necessary second step And this is -- Im
coming to the point that I think governs here
which is that it is a well-established rule of
construction a rule of construction that
where Congress uses terms that have accumulated
settled meaning under the common law a court
must infer must infer unless the statute
dictates otherwise that Congress means to
incorporate the established meaning of those
terms Now the -shy
JUSTICE GINSBURG What about the
argument that there wasnt an established
meaning in -- what was it -- 1945 that it -shy
the -- the status of the immunity was in flux
It had been absolute but then we were going
over -- the State Department was advising the
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court whether immunity should be given in a
particular case
MR VERRILLI Theres a bit of a
suggestion to that effect in the brief of the
United States Your Honor but I would
respectfully suggest that is not a fair
characterization of where things stood in 1945
at all
It is true that some people within the
State Department in 1945 thought that immunity
should move to a more restrictive standard but
the Justice Department would not even advance
that standard in this Court at the request of
the State Department and this Court did not
describe the immunity as being in flux This
Court said the standard was virtually absolute
immunity
If one looks even in 1952 at the Tate
Letter the Tate Letter didnt say the law was
in flux in the United States It said the
United States was hewing to the standard of
virtually absolute immunity but other
countries were moving towards a standard of
restrictive immunity and therefore we ought
to reconsider what were doing
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So I just -- I mean the Court can
read these materials for -- for itself but I
just respectfully do not think its a fair
consideration of where things stood in 1945 at
all
And then if I could Id like to pick
up on a related point that came up in the brief
of the United States Its another statement
in the brief of the United States and it came
up in argument today that look this really
isnt a problem because for those organizations
that need immunity that goes beyond the -- the
restrictive immunity weve always understood
that they get -- they can go get a special
statute and theyve gone and gotten special
statutes
The United States says on page 27 of
its brief precisely because the IOIA didnt
provide that level of immunity they give these
three examples IMF World Trade Organization
and Organization of American States
Id like to take a minute and go
through each of them because it doesnt hold up
with respect to each of them With respect to
the IMF for example it is true the IMF you
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know it has a -- has a treaty There was a
statute that gave that treaty effect under US
law which ended up providing for absolute
immunity
But it cant possibly be that that was
undertaken based on any sense that the IOIA
didnt provide that level of immunity because
the IMF statute was enacted in July of 1945
and the IOIA wasnt enacted until five months
later So it cant possibly substantiate what
the government was saying
If one looks at the WTO treaty it is
true with respect to that treaty that it
committed us to a very wide scope of
immunities It said that the United -- that
the United States will commit to providing all
or virtually all of the immunities provided
under a whole different UN convention the
UN convention on specialized agencies
Now that convention has all kinds of
tax immunities and property immunities that go
way beyond what the IOIA provides So of
course they needed another statute in order to
make those treaty commitments That doesnt
prove anything about whether anybody thought
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that the IOIA failed to provide virtually
absolute immunity
In fact the historical evidence I
think really to the extent it points in any
direction it points very much more in our
direction And the best way to see that is
with respect to the way the United Nations was
treated under -- by the executive branch in
this country
Now we signed the UN charter in
1945 committed us to provide what the charter
describes as the necessary immunities Then
the UN Convention on Immunities was
negotiated in 1946 which said that the UN
should get virtually absolute immunity Not
the same immunity as foreign states virtually
absolute immunity
Now the United States did not ratify
that convention until 1970 So on the theory
that my friends on the other side have from
the moment of the Tate Letter in 1952 when
foreign state immunity became restrictive and
not virtually absolute anymore we were in
violation of the commitment we made in the UN
charter
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Now if that was true you would
certainly expect the State Department A to
address it in the Tate Letter but theres
nothing in there Its a classic case of the
dog that didnt bark And B you would expect
them to try to do something about it like get
the UN Convention ratified immediately
because otherwise we were going to be out of -shy
out of compliance with our obligations to the
granddaddy of all international organizations
the United Nations
But theres not a -- from 1952 until
the ratification of the Convention in 1970 you
cant find one word by anybody in the executive
branch ever saying that What you do find -shy
JUSTICE SOTOMAYOR What commercial
activities was the UN doing at that time
MR VERRILLI Well -shy
JUSTICE SOTOMAYOR I know today its
a very different organization but its not
clear to me that there was much going on that
was commercial at its initial stages
MR VERRILLI I take that point Your
Honor but what I would say in response is that
there was a very great deal of sensitivity
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about the whole package of -- of immunities
that were available to the UN and its
diplomats and its -- and its workers
And there was concern all along from
1952 to 1970 that -- that -- where the
executive was urging Congress to ratify the
convention but the only things ever mentioned
were the diplomats -- immunities for diplomatic
individuals
And then when you get to 1970 and you
actually look at the Senate report accompanying
the ratification this was not in our brief
but its at page 31 of the brief of the -- of
the scholars who filed the brief in support of
us It quotes the Senate report from 1970 and
what the Senate report says is were not
granting the UN any -- the UN as an
organization any immunity it didnt already
have under the IOIA
So as late as 1970 it was just quite
clear that everybody understood the IOIA
conferred virtually absolute immunity And of
course thats because it was -- it was enacted
to comply with our treaty obligations
It wasnt enacted to make sure that
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come what may that international organizations
would get treated the same as foreign states
That is -- you know thats the best way to
think about it is its just a completely
anachronistic way of thinking about the body of
materials in front of you
JUSTICE KAGAN But even what you just
said Mr Verrilli it wasnt enacted to make
sure that foreign organizations would get
treated the same as foreign states
I mean thats exactly what the
language of the thing says
MR VERRILLI Well so I guess a
couple of things about that I think the right
way to think about the language Justice Kagan
is that it was a means to an end in 1945 when
it was enacted
It was not the end in itself to assure
equivalence of treatment come what may It was
the means by which Congress ensured that it
would fulfill its treaty commitments which were
-- and those treaty commitments were to provide
virtually absolute immunity
And we know the Senate report says
were enacting this provision to fulfill our
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treaty commitments And our treaty
commitments again were not to treat them the
same They were to provide virtually absolute
immunity So -shy
JUSTICE KAGAN Do you think it was -shy
you answered Justice Ginsburgs questions about
how far we were from the Tate Letter in 1945
but do you think it was inconceivable to
Congress that the common law of immunity would
change
MR VERRILLI Well I -- I -- I cant
say that it would be inconceivable to anybody
but what I can say is if one looks at the
debates surrounding the passage of the IOIA
is once again its a dog that didnt bark
You cant find a single person
anywhere saying anything remotely like the
proposition that we need to adopt a standard
that will evolve over time because we have a
concern that foreign sovereign immunity law
will evolve over time
That just was not any part of
anybodys thinking at that time They were
trying -- you have to remember this is coming
out of the Bretten Woods system We have
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Bretten Woods We set up all these
organizations
They have a -- they have a desperate
mission in front of them to try to rebuild the
world -- the world after the carnage of World
War II Theres a lot of pressure on Congress
to get these organizations up and going and
give them the immunity we promised them so they
can go out and do their work Thats what led
to the enactment of the IOIA
It was none of these other things as
I said I really think if you look at the
historical materials its the -- the gloss
that my friends on the other side are trying to
put on it is completely anachronistic
Theyre taking a different concept
that theyve come up with now and trying to
retrofit the historical facts to match it and
it just isnt right
JUSTICE BREYER Is that -- is that -shy
the Russians at that time 45 and so forth
were putting all these businesses into state
entities So my guess is there were -- there
were a number of cases and what I thought I
heard Mr Fisher say is if we really go back
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and look at this well see that the status quo
before this passed was not absolute immunity
but the status quo was a kind of mess where
sometimes the State Department would say give
them immunity and sometimes the State
Department would say not
Now what is the actual situation as
far as youve been able to find it
MR VERRILLI Well I dont -shy
respectfully with respect to my friends on the
other side I dont think thats a fair
characterization of the historical materials
JUSTICE GINSBURG Thats the same -shy
the answer you gave to me is the answer you
would give to Justice Breyer
MR VERRILLI Yes
JUSTICE GINSBURG Same question
MR VERRILLI Yes I mean its just
not there I mean look at what this Courts
cases said This Courts cases didnt say
anything like that
The -- the -- the governments briefs
to this Court didnt say anything like that
When this Court has looked back on the law in
Verlinden and in Samantar it hadnt said
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anything like that It said the standard was a
common law standard of virtually absolute
immunity
And thats in fact how the Tate
Letter describes it too And then as a process
matter -shy
JUSTICE BREYER Okay I got it
MR VERRILLI -- my friends on the
other side have made this argument that well
our position would also require you to go back
to the process of the State Department making
an ad hoc case-by-case determination but
thats wrong too
And thats clear on the face of the
statute that its wrong And the reason -- and
-- and thats right in Section 288 This
creates an entirely different mechanism
What the -- what the IOIA says is that
-- that the President shall have the authority
under executive order once Congress has
enacted a statute to grant an international
organization the privileges and immunities
And if you look at the face of the
statute its obvious that they are granted on
a categorical basis in gross by an executive
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order not on a case-by-case basis by the State
Department when -- when a lawsuit is -- or when
a -- when a lawsuit is filed
And then similarly in terms of the
Presidents authority as to an executive order
to reduce or eliminate the -- the immunity of
an international organization that -- its -shy
again its completely different than the
situation that -- than the common law process
at work So obviously Congress made a
judgment that it was going to put a different
structure and system in place
And the fact that Congress did that I
do say -- I do think quite clearly presupposes
that theres a -- the existence of a
substantive standard being prescribed And the
substantive standard as I said is virtually
absolute immunity
And then in terms of the structural
indicators in the statutory text going back to
a question you asked Justice Sotomayor I
really think the most telling one to -- to
show you I think why my friends on the other
sides case is completely anachronistic and
were correct -- is Section 288f which you can
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find at page 6a of the appendix to the blue
brief
That provision says that the
privileges exemptions and immunities of
international organizations and then of -- of
members and employees et cetera shall be
granted notwithstanding the fact that similar
privileges exemptions and immunities granted
to a foreign government et cetera et cetera
may be conditioned upon the existence of
reciprocity by that foreign government
So right there in the text it
decouples the treatment of international
organizations from the treatment of foreign
states Even in a situation in which the
United States would not grant the full range of
virtually absolute immunity because it wasnt
being -- receiving reciprocal treatment this
statute says the international organization
gets it So -shy
JUSTICE GINSBURG How do you deal
with the argument that we just heard that we
can compare 288a on the one hand which -shy
which keeps the international organizations in
tune with foreign sovereigns and 288 -- was it
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b and d
MR VERRILLI Yes I do think that
the -- the differences break down into two
categories Your Honor There -- some of the
provisions do prescribe fixed standards
Thats true But those fixed standards as we
explained in our brief or at least tried to
are always situations in which the IOIA is
conferring a narrower set of immunities on -shy
on diplomats and individuals than the common
law would have at the time
So incorporation of the standard in
the way this 288a(b) did wouldnt accomplish
the objective there because there was -- they
were quite consciously trying to narrow the
overall scope of immunities and not give the
individuals who worked at these organizations
the same full treatment that diplomats got who
-- from foreign states
Now the second subcategory are the
provisions where the -- the statute says that
their -- the treatment shall be the same But
theres two things about that that are
significant
One is it says they shall be the same
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as under another statutory provision And as
we said we think thats vitally important
here We think its quite clear that in
addition to Justice Breyers points about the
reference canon that the reference canon
applies when one statute incorporates another
It doesnt apply when one statute incorporates
the common law And here they were
incorporating statutes
And if you look at those provisions
anyway theyre basically just instructions to
the executive branch when do you fingerprint
the people when theyre coming in What do you
do about that -- this detail or that detail
They dont go to the heart of the
matter at all And the heart of the matter
here is the immunity being conferred on these
international organizations
I just want to make a point about that
and then if I could talk about the
consequences that will ensue I think if we go
down the path that my friends on the other side
are suggesting
I think this is a critical point I
just want to make sure its clear Another
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reason why you shouldnt draw this equivalence
-- and it cant be that Congress really
intended to draw an equivalence between foreign
states and international organizations such
that they would just move in tandem no matter
what -- is that immunity is granted for
different reasons
The reason you give an international
organization immunity is a functional reason
not a status reason Its not about according
the appropriate respect to the sovereigns
because international organizations arent
sovereigns Theyre separate juridical
persons And whats quite clear -- its clear
from the U -- the San Francisco report on the
foundation of the UN its clear from the
Senate report in 1945 its clear from all the
commentators that we discussed in our brief
its clear from the Restatement of Foreign
Relations which weve cited in our brief that
you grant immunity to international
organizations so that they can carry out their
functions effectively And -- and just take -shy
let me take a minute and kind of elaborate on
that because I think its critical
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Remember these are -shy
CHIEF JUSTICE ROBERTS If you dont
mind Im afraid Im about five minutes behind
you here but going -- going back to your point
on 288f you said its there theyre decoupling
the international organizations and the foreign
sovereigns But as I go back and read it
its simply because the -- the foreign
sovereigns have the capability to use
reciprocity and the foreign -- and the
multi-country organizations do not
I dont -- I mean thats the
difference theyre drawing there not something
between the scope of the actual immunities
MR VERRILLI Well I -- well the
way I read it Mr Chief Justice is what -shy
what theyre doing there is saying even in a
situation in which the United States concludes
that it wont afford a foreign sovereign the
full virtually absolute immunity because of
reciprocity in other words were not getting
it back from them even in that situation an
international organization of -- where those
sovereigns are members will still receive the
full level of immunity
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And so I think what that tells us is
that what Congress was trying to do in this
statute overall was prescribe a fixed
substantive standard not a floating standard
where the two things move in tandem So -- and
I -- I do think it supports that
And if I could just go back to the
functional point remember these are
collective bodies and members come together
they make -- they -- they take resources from
each of their own countries They put them
into these organizations They make collective
decisions about how to deploy those resources
And the point of the immunity here is
so that the courts of any country but
especially the host country which for the most
important organizations are going to be here in
the United States cant override the
collective judgments that they make about how
their resources would be deployed and what
conditions they ought to impose et cetera by
the intervention of domestic law in US courts
and cant redirect the funds that are put into
these organizations to pay massive class action
tort judgments because of course the member
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countries are contributing this money because
they believe its going to be put to the use
that the -- for example the development bank
the development bank decides it should be put
to not to pay massive tort judgments
And I think one place you see this
very clearly if you look at the report of the
San Francisco conference about the founding of
the UN the State Departments -shy
Departments response coming -- report coming
out of that conference specifically says this
It says of course the United Nations cant be
subject to the jurisdiction of any one state or
its courts
And its for exactly this reason And
the same thing is true generally Thats why
you give it not for functional reasons -- I
mean excuse me not for reasons of status but
for functional reasons
And I think a key -- another key
reason why you shouldnt be thinking about this
as a standard that evolves evolves now and
over time is that those functional reasons
dont evolve now and over time
CHIEF JUSTICE ROBERTS Well what
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about the point that most of the concerns you
have are going to be dealt with by the
requirement of a nexus to activity in the
United States as opposed to simply abroad
where the projects are funded
MR VERRILLI Yes I was gratified
to hear the United States say that but -- and
-- but I could just -- Ill answer Your Honors
question directly but I want to broaden it out
a little bit because I think what essentially
the United States is saying here is look the
statute leaves one with no choice but to apply
restrictive principles of immunity Youve got
to jump off that cliff but dont worry it
will be a soft landing because the FSIA will
take care of a lot of these problems
And I guess what I would say about
that is in the unlikely event you dont agree
with me I -shy
(Laughter)
MR VERRILLI -- I hope theyre
right But theres no guarantee that theyre
right
JUSTICE BREYER Are the -- are the
lending decisions which may be fairly detailed
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and may include dozens of conditions made
within the United States
MR VERRILLI Well yes I think
thats a big part of the problem and -shy
JUSTICE BREYER Is there -- are there
lawsuits that could say that there was
negligence in determining in a different
country who the persons were or the conditions
under which the money would be spent Is that
an American lawsuit saying what youve done
here is commit the act of negligence or failure
to be a fiduciary here
MR VERRILLI Thats this lawsuit
Thats this lawsuit Justice Breyer Thats
exactly what theyre alleging
CHIEF JUSTICE ROBERTS Well but I
mean is that consistent with our opinion in
the OBB case which I think -- if the complaint
is based the gravamen of the complaint not
specific steps along the way and that was the
issue we dealt with in that case
And I appreciate the fact that its
you know to some extent dependent on the facts
and particular allegations but it would seem
to me to require a lot more than simply the
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specific decisions I think where -- wheres
the gravamen or gravamen however you say it
with whats going on here
MR VERRILLI Well we would
certainly say its India of course
CHIEF JUSTICE ROBERTS Yeah
MR VERRILLI And if -- if we have to
defend ourselves on that basis we will But I
-- but I -- I think it -- it understates the
real concrete risk here And what Id like to
do to illustrate that if I could is first
talk about the organizations that are going to
be exposed in a way that they wouldnt be under
the law
And as Justice Breyer indicated
earlier its important to remember this has
been the law in the DC Circuit for decades
and theres -- and people have ordered their
affairs based on the assumption that there was
virtually absolute immunity
But with respect -- but with respect
to the consequences and the groups affected and
then the types of effects With respect to the
groups affected youve got entities like us
the multilateral development banks And
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Justice Breyers identified many of them
Now the -- the main ones are here
here in Washington DC and theyre making
their decisions here and I think critically
too there are billions of dollars of assets
here
Now were going to make the OBB
argument for sure and I hope we win if we have
to make the argument I hope we win But who
knows how courts are going to come out on that
issue
Were going to have a lot of fighting
about that There are probably going to be
matters of degree Theres certainly going to
be significant disincentives arising out of
that uncertainty
Theres a whole another group of
entities that unlike the banks at least have
articles of agreement where we can try and fall
back on those for alternative arguments of
immunity where their immunity depends entirely
on the statutory grant the International
Committee of the Red Cross the World Health
Organization the fund to fight -- the global
fund to fight AIDS and tuberculosis and
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malaria
They are all entirely dependent on the
IOIA for their immunities and those immunities
are drastically different after this And then
we do have the issue I think with some
organizations that we may even actually now be
out of our -- out of compliance with our treaty
commitments
Now whats going to happen Heres
what I think is going to happen and I think
this lawsuit helps you see it
Now the way -- the basis of this
lawsuit is the following IFC when it loans
money here its loaning money in -- in parts
of the world where private capital wont go
unless we go in there
And very often they have un-developed
legal systems and they certainly dont have
robust environmental protections or labor
protections So what the IFC has done is lien
into those put those kinds of environmental
standards and labor standards into its
agreements saying you want this money to do
this development project these are the
standards that youve got to live up to
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And -- and this lawsuit is that -shy
that the entity that we loan this money to
didnt live up to the standards and its our
fault And so were being sued here
Well its going to create -- if that
kind of a suit can go forward and hopefully it
wont be able to Mr Chief Justice but if it
can its certainly going to create an
extraordinary disincentive for organizations
like ours to lien into those kinds of standards
because were going to be hoist by our own
petard
Now weve also got a robust internal
accountability mechanism where if people think
something has gone wrong on one of our
projects they can come to us and they can say
-- they can say look theres a problem here
And they -- and we investigate We take
internal remedial measures if we find theres a
problem
Well you know the factual basis for
the lawsuit is the report of our internal
accountability process
So if they can just grab that and take
it into court and make it the basis for a class
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action tort lawsuit in which they can make a
claim for all this money its going to create
a powerful disincentive for us not to engage in
that kind of self-policing activity
And I would submit that you know
even if things ultimately work themselves out
under the FSIA and I hope they -- I hope we
dont have to deal with that but even if we
do its going to take a very long time There
are going to be a lot of difficult cases at the
margin There are going to be very serious
disincentives immediately
And conversely you know were a big
fat target here These organizations have lots
of money And of course foreign plaintiffs
want to sue here They can bring a class
action They get liberal discovery They can
get punitive damages They get all of these
advantages by suing here
So instead of suing the person that
actually injured them the power plant in
India they come here and sue us
And I really think what you are going
to see here is that this is just going to
become another version of the sorts of
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foreign-cubed lawsuits that the Court has been
concerned about under the Alien Tort Statute
where the international organization is just
going to be subbed in for the foreign defendant
and its going to be subbed in in a situation
where were going to have a very significant
pile of money
And if I could just close with this
thought -- Im just going to pick up on Justice
Breyers thought -- the law in the District of
Columbia where virtually all these
organizations have been housed are
headquartered has been virtually absent
immunity under DC circuit law for decades
Thats the standard everybody has been
operating on
Nobodys suggested that anything has
gone wrong under this statute that there are
any deleterious policy consequences that the
interests of the United States are adversely
affected in any way In fact if you look at
the amicus brief from the former Secretaries of
Treasury and State they think that the policy
of the government arguing now is going to
disrupt the United States ability to function
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effectively with these organizations
It has all been fine And -- but
theyre asking you essentially to repeat a
metaphor to jump off a cliff And hopefully
it will be a soft landing But we dont know
that And it could easily result in a lot of
disruption to the good work that these
organizations do
And I guess what I would suggest is
that if thats going to happen it ought to
happen through legislation Congress can look
at this Congress can change the law if it
wants to But this has been the law for a very
long time There is no evidence that it has
done anything other than work well
And therefore I think the Court
should affirm the DC Circuit Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Four minutes Mr Fisher
REBUTTAL ARGUMENT OF JEFFREY L FISHER
ON BEHALF OF THE PETITIONERS
MR FISHER Thank you Id like to
make four points and Id like to start with the
text of the statute itself and simply say when
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Mr Verrilli talks about the Neder Doctrine and
the Common Law Doctrine that you look at the
term a terms meaning at the time of
enactment Hes mixing apples and oranges
And I think all the citations in our
reply brief should make it absolutely clear
that theres a doctrine on the one hand that
talks about incorporating a body of law and
theres a doctrine on the other hand about
giving meaning to a specific term Were in
the former camp here
And as to the point about whether the
common law was evolving at the time two
things Well stand on the papers as to the
fact that it was somewhat in flux
But the more important point is even
if it werent in flux it wouldnt matter one
wit because the other side is making a
sweeping proposition which is any general
reference to common law is fixed in time
That would disrupt any number of
federal statutory regimes from the Federal
Tort Claims Act enacted the year after this
statute the Equal Access to Justice Act the
federal governments piracy statute Federal
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Rule of Evidence 501 I could go on and on
with federal statutory regimes that reference
the common law in exactly the same way the
statute does here
The Civil Rights Act of 1866 if you
want one more All of those would come out the
other way from this Courts jurisprudence and
from all the understanding if the other side is
right about statutory interpretation
So I think the only thing the other
side has is they have a bunch of policy points
to make for this Court
Now we dont think they should
control but let me answer them So first as
to our treaty obligations So one about at the
moment of enactment My friend kept saying
that there were various agreements in place
that required virtually absolute immunity
None of the agreements use those
words Instead what those agreements said is
that certain organizations were entitled to
immunity to allow them to perform their
necessary functions Thats a very different
thing than absolute immunity
And its very different because none
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of the organizations involved were performing
Justice Sotomayor commercial activities that
were essential to their core functions not the
UN not any of the other organizations
So we werent in breach of any treaty
rights And if you have any doubt on that I
would urge you to look to the federal
governments position then and now Its not
just a brief filed in this Court
It is the position that four different
Presidential Administrations have taken The
Carter Administration right after the FSIA was
passed the George H W Bush Administration
the Clinton Administration and now the Trump
Administration have all consistently held that
the FSIA rules are incorporated into the FSIA
Next on the floodgates concern I
explained earlier and I hope you will think
about the fact that while the core activities
of the IFC might be commercial activity not
all of the IFCs activities are and certainly
not all the activities of international
organizations are
But let me add one more thing My
friend talked about big lawsuits of ruinous
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liability Well theres two very easy ways to
control that
One is to the extent any claims are
on contracts they can write their own
contracts and negotiate their own contracts
As the Solicitor General points out they can
even deal with third-party beneficiaries in
their contracts if they choose
Secondly as to tort claims they can
and in fact commonly do indemnify themselves
against tort lawsuits In this very case
their agreement indemnifies them against any
judgment and all legal fees
So these organizations have every
manner of method to deal with any potential
liability And in fact they are which sort
of belies the suggestion that they think
theyre absolutely immune from lawsuit
Finally let me say one thing about
the so-called foreign cubed problem or the
facts of this case Now obviously we think
that we would satisfy the gravamen test They
have never made that argument And if they
want to make it we can -- we can have that
conversation in the lower courts
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But bear in mind what youre being
asked to do in this case is to announce a
categorical rule for all cases dealing with
international organizations
So my friend in the Solicitor
Generals Office talked about just regular tort
slip and fall cases and the like in the United
States Let me give you one other thing to
think about
Some international organizations
actually do their work in the United States
The border cooperation -- the Border
Environmental Cooperation Commission does
wastewater treatment plants in Texas and
California
I cant think of any reason why they
would be immune from those infrastructure
projects in a way that no private business or
public government would be
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1206 pm the case
was submitted)
Heritage Reporting Corporation
69Official - Subject to Review
1 392151723 4122 4223 433
452 462 4718 4817 5220 57
allegations [1] 5624
alleging [1] 5615 B
1108 [2] 115 32 20 651824 allow [3] 2321 246 6522 back [22] 44 61420 10513 11
1206 [1] 6822 Absolutely [3] 3113 646 6718 allowed [1] 2610 17 154422 172425 1911 226
1602 [1] 1412 Access [1] 6424 allows [3] 231220 242 4425 4524 4610 4720 5247
17-1011 [1] 34 accident [1] 2615 almost [2] 719 253 22 537 5820
1866 [1] 655 accompanying [1] 4111 already [4] 311521 323 4118 backwards [4] 514 23161724
1904 [2] 614 1725 accomplish [1] 4913 alternative [1] 5820 bad [1] 1416
1934 [1] 49 according [2] 1817 5110 Altmann [1] 1318 bank [13] 719 81822 98 2716
1945 [17] 1013 142025 151213 accountability [2] 601423 amended [1] 1615 283455 3022 324 5434
15 1617 331 3522 36710 374 accumulated [1] 3514 American [3] 112 3721 5610 banks [9] 88910 271415 2911
388 3911 4216 437 5117 across [1] 1025 amicus [4] 122 27 2011 6222 3021 5725 5818
1946 [1] 3914 Act [15] 320 6319 1412 1724 20 amounts [1] 2411 bare [1] 1524
1952 [4] 3618 3921 4012 415 422 212 301518 347 5611 64 anachronistic [3] 425 4415 47 bark [2] 405 4315
1970 [6] 3919 4013 415101520 2324 655 24 barred [2] 2689
1990s [1] 1221 action [3] 5324 61117 announce [1] 682 based [5] 2518 354 386 5619
1994 [1] 115 activities [11] 8517 195 2717 another [13] 323 144 167 1923 5719
2 2910 3122 4017 662192122 2122 378 3823 501625 5420 basic [1] 3413
20 [2] 28 2622
20-some [1] 2624
2018 [1] 111
21 [1] 3421
27 [1] 3717
288 [4] 2213 331 4616 4825
288a [3] 1915 2018 4823
288a(b [4] 2024 2111 2215 49
13
288a(d [1] 2110
288b [1] 343
288d [1] 1916
288d(a [1] 2110
288f [2] 4725 525
activity [23] 791820 81015 94
69 2551718 27182325 2914
17 3010 31211 322 553 614
6620
actors [1] 2912
acts [1] 216
actual [2] 457 5214
actually [4] 4111 596 6121 68
11
ad [1] 4612
add [3] 1424 2510 6624
addition [2] 2515 504
address [4] 417 78 2423 403
adjust [2] 1212 1720
Administration [4] 66121314
5817 6125
answer [11] 71122 10191920
1817 2514 451414 558 6514
answered [1] 436
antiquated [1] 1816
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APPEARANCES [1] 117
appendix [1] 481
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applies [5] 612 2216 341415 50
6
apply [7] 1010 161 1919 2215
basically [2] 1822 5011
basis [6] 4625 471 578 5912 60
2125
bear [1] 681
became [1] 3922
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becomes [1] 1815
behalf [8] 11925 241114 38 33
8 6322
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beneficiaries [1] 677
best [2] 396 423
better [1] 2019
3 15 2521 507 5512 between [2] 513 5214
3 [1] 24 Administrations [1] 1825 appreciate [1] 5622 beyond [2] 3712 3822
30 [1] 2622 Administrations [1] 6611 appropriate [1] 5111 big [5] 2223 3022 564 6113 66
31 [2] 111 4113 adopt [1] 4318 archives [1] 213 25
33 [1] 211 adopting [1] 47 area [2] 171618 billions [1] 585
4 adoption [1] 1610
advance [1] 3612
arent [1] 5112
argued [1] 92
bit [2] 363 5510
blue [1] 481
45 [1] 4421 advantages [1] 6119 arguing [1] 6224 bodies [1] 539
5 5 [1] 1612
501 [1] 651
527 [1] 3420
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affairs [1] 5719
argument [24] 114 225912 34
7 5111 625 1410 1914 2010
2213 2314 337 3521 3710 46
9 4822 5889 6321 6723
arguments [2] 416 5820
body [4] 32325 425 648
border [2] 681212
both [1] 2211
bounds [1] 1714
branch [11] 1024 1481318 151
6 affected [3] 572224 6221 arising [1] 5815 161924 398 4015 5012
63 [1] 214 affirm [1] 6317 Armed [1] 63 breach [1] 665
6a [1] 481 afford [2] 296 5219 articles [1] 5819 break [1] 493
8 afraid [2] 1625 523
Africa [1] 3023
Asia [1] 3023
Asian [1] 284
Bretten [2] 4325 441
BREYER [40] 43 513162022 6
80-some [1] 2623 African [1] 285 assets [1] 585 16 717 817 912 108 1117 12
A agencies [1] 3819
agree [3] 2018 253 5518
Assistant [1] 120
Association [1] 286
22 133 147 157 238111923
24259151821 2712 282914 am [2] 115 32
agreed [1] 294 assume [3] 1221 1711 222 301619 3147 4420 4515 467 ability [4] 12121315 6225
agreement [4] 282325 5819 67 assuming [1] 277 5524 56514 5715 able [7] 1023 2423 2513 264 32
12 assumption [2] 1223 5719 Breyers [4] 164 504 581 6210 20 458 607
agreements [5] 2821 5923 65 assurance [1] 318 brief [16] 618 115 364 377918 above-entitled [1] 113
171920 assure [3] 30619 4218 41121314 482 497 511820 abroad [1] 554
agricultural [1] 84 attenuated [1] 2523 6222 646 669 absent [1] 6213
AIDS [1] 5825 authority [7] 212425 2241114 briefs [1] 4522 absolute [33] 1922 201 22310
AL [1] 13 4619 475 bring [1] 6116 20 2610 282025 3215 331215
Alan [1] 1624 available [3] 11810 412 broaden [1] 559 21 34117 3524 361622 383
Alien [1] 622 BUDHA [1] 13
Heritage Reporting Corporation Sheet 1 1108 - BUDHA
70Official - Subject to Review
building [1] 2613
bunch [1] 6511
Bush [1] 6613
business [2] 1414 6818
businesses [1] 4422
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C California [2] 118 6815
call [1] 412
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camp [1] 6411
canon [5] 159 165 1911 5055
capability [1] 529
capital [1] 5915
captures [1] 2718
Carcieri [1] 67
care [1] 5516
Career [1] 63
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Carter [1] 6612
Case [35] 34 4189 548 6236
88161718 9162025 14116
191 2117 2511 34182122 36
2 404 4724 561821 671121
6822122
case-by-case [2] 4612 471
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269 3415 4424 452020 6110
6837
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Certainly [7] 1313 402 575 58
14 5918 608 6621
cetera [4] 48699 5321
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characterization [2] 367 4512
charter [6] 2816 311920 3910
1125
Chase [1] 618
CHIEF [15] 339 20713 3349 34
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Circuit [4] 1814 5717 6214 63
17
circumstances [1] 3224
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Civil [1] 655
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Claims [3] 6423 6739
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325 511414161719 646
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Clinton [1] 6614
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Columbia [1] 6211
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656
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coming [6] 97 3511 4324 5013
541010
commentators [1] 5118
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2 401622 66220
Commission [1] 6813
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4312 598
committed [4] 332125 3814 39
11
Committee [1] 5823
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commonly [1] 6710
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compliance [2] 409 597
comply [1] 4124
components [1] 822
concede [1] 2112
concept [1] 4416
concern [4] 1325 414 4320 66
17
concerned [1] 622
concerns [2] 268 551
concludes [1] 5218
conclusion [1] 155
concrete [1] 5710
conditioned [1] 4810
conditions [3] 5321 5618
conduct [2] 261 3217
conference [2] 54811
conferred [2] 4122 5017
conferring [1] 499
Congress [36] 1023 1125 1224
25 1317 1415 174710111217
21 18210 1924 222 231 3225
3319 34616 351417 416 42
20 439 446 4620 471013 512
532 631112
Congresss [1] 1215
connected [1] 2516
connection [1] 2523
consciously [1] 4915
consequences [3] 5021 5722
6219
consideration [1] 374
consistent [3] 46 1011 5617
consistently [1] 6615
construction [3] 3414 351313
contemplated [1] 195
context [1] 3317
Contoe [1] 1624
contract [1] 2612
contractor [1] 2613
contracts [4] 674558
contributing [1] 541
control [4] 1523 162 6514 672
convention [8] 38181920 3913
19 40713 417
conversation [1] 6725
conversely [1] 6113
conviction [1] 65
cooperation [2] 681213
core [4] 2910 3122 66319
CORPORATION [2] 16 35
correct [3] 136 1924 4725
correctly [2] 510 1822
couldnt [2] 2225 2923
counsel [4] 208 335 6319 6821
count [1] 2916
countries [3] 3623 5311 541
country [4] 399 531516 568
counts [1] 2914
couple [4] 241419 3114 4214
coupled [1] 315
course [9] 621 3422 352 3823
4123 5325 5412 575 6115
COURT [31] 1114 310 6824 15
1718 1824 2014 2721 3213 33
310 34131925 351715 361
131416 371 452324 6025 62
1 6316 6512 669
Courts [6] 523 1518 2520 4519
20 657
courts [9] 1423 2722 309 3218
531522 5414 5810 6725
create [4] 1121 6058 612
creates [1] 4617
Criminal [1] 63
critical [2] 5024 5125
critically [1] 584
Cross [1] 5823
crystal-clear [1] 2824
cubed [1] 6720
curiae [3] 122 28 2012
D DC [7] 1102124 2616 5717 58
3 6317
damages [1] 6118
date [1] 1723
dates [1] 613
day [1] 1817
DC [1] 6214
deal [10] 188 2021 2223 2425
3022 4025 4821 618 67715
dealing [1] 683
deals [1] 2123
dealt [3] 2819 552 5621
debates [1] 4314
decades [2] 5717 6214
decide [6] 527 913141923
decides [2] 1516 544
decision [3] 2520 342021
decisions [4] 5313 5525 571 58
4
decouples [1] 4813
decoupling [1] 525
decrease [1] 136
default [2] 126 1720
defend [1] 578
defendant [1] 624
degree [1] 5814
deleterious [1] 6219
denying [1] 315
Department [15] 121 56 917 18
25 198 2823 3525 36101214
402 4546 4611 472
Departments [2] 54910
dependent [2] 5623 592
depends [1] 5821
deploy [1] 5313
deployed [1] 5320
describe [1] 3615
described [1] 1510
describes [2] 3912 465
describing [1] 2218
designated [1] 2623
desperate [1] 443
detail [2] 501414
detailed [1] 5525
determination [2] 1415 4612
determining [1] 567
development [13] 271415 2845
56 2911 302124 5434 5725
5924
dichotomy [1] 1916
dictates [1] 3517
difference [1] 5213
differences [1] 493
different [20] 7323 97 171321
181 2111 3818 4020 4416 46
17 47811 517 567 594 6523
25 6610
difficult [1] 6110
diplomatic [2] 2222 418
diplomats [4] 4138 491018
direction [2] 3956
directly [2] 3122 559
discarded [1] 204
discovery [1] 6117
discussed [1] 5118
discusses [1] 114
discussing [1] 1917
discussion [1] 2017
disincentive [2] 609 613
disincentives [2] 5815 6112
dispute [3] 322 42 82
disputes [2] 261212
disrupt [2] 6225 6421
Heritage Reporting Corporation Sheet 2 building - disrupt
71Official - Subject to Review
disruption [1] 637
District [1] 6210
doctrine [8] 18581819 64127
9
dog [2] 405 4315
doing [5] 194 267 3625 4017 52
17
dollars [1] 585
domestic [3] 2612 3217 5322
DONALD [3] 124 210 337
done [3] 5610 5920 6315
doubt [2] 1913 666
doubts [2] 2511 264
down [5] 1722 182 1925 493 50
22
dozens [1] 561
draft [1] 203
drafting [2] 316 2119
drastically [1] 594
draw [2] 5113
drawing [1] 5213
driving [1] 2615
E each [3] 372324 5311
earlier [2] 5716 6618
easily [1] 636
easy [1] 671
effect [3] 61 364 382
effectively [2] 5123 631
effects [1] 5723
either [2] 94 156
elaborate [1] 5124
element [1] 355
eliminate [2] 259 476
ELLIS [31] 120 26 2091013 21
21 2212 23921 2447141719
23 2621 27481013 2881115
294820 3018 313613 328
employees [3] 214 2221 486
enact [1] 304
enacted [11] 1616 3225 3319 38
89 412325 42817 4621 6423
enacting [1] 4225
enactment [6] 75 17910 4410
644 6516
encourage [1] 3024
end [4] 425 358 421618
ended [1] 383
enforcement [1] 83
engage [3] 197 2724 613
enjoy [1] 58
enjoyed [2] 313 1210
enough [2] 2523 2921
ensue [1] 5021
ensured [1] 4220
enter [4] 3011212 329
entered [1] 2820
entire [1] 2021
entirely [3] 4617 5821 592
entities [3] 4423 5724 5818
entitled [3] 319 1922 6521
entity [1] 602
environmental [3] 591921 6813
Equal [1] 6424
equivalence [3] 4219 5113
equivalent [1] 424
era [2] 181819
especially [5] 324 1021 18419
5316
ESQ [6] 11824 2361013
essential [1] 663
essentially [3] 2124 5510 633
established [2] 351821
ET [5] 13 48699 5321
Even [30] 63 8816 107 1110 12
1620 1424 1816 19345 256
10 265 2714141415 361218
427 4815 521722 596 6168
6416 677
event [1] 5518
everybody [2] 4121 6215
everybodys [1] 277
everything [4] 96 1013 2534
evidence [3] 393 6314 651
evolve [4] 1620 431921 5424
evolves [2] 542222
evolving [2] 3313 6413
Ex [1] 1514
exact [2] 625 1916
exactly [8] 124 1714 237 3224
4211 5415 5615 653
example [6] 719 81 198 2412
3725 543
examples [2] 1025 3720
exception [5] 79 256 271925
349
excuse [1] 5418
executive [16] 1024 1481318
151161924 3410 398 4014
416 462025 475 5012
exemptions [2] 4848
exist [1] 194
existence [2] 4715 4810
expect [2] 4025
explained [3] 2722 497 6618
exposed [1] 5713
extent [3] 394 5623 673
extraordinary [1] 609
F face [2] 461423
fact [12] 2512 3123 393 464 47
13 487 5622 6221 6415 6619
671016
facts [3] 4418 5623 6721
factual [1] 6021
failed [1] 391
failure [1] 5611
fair [3] 366 373 4511
fairly [1] 5525
fall [4] 1911 2614 5819 687
far [4] 201719 437 458
fat [1] 6114
fault [1] 604
favor [2] 76 3112
federal [8] 1210 1823 642222
2525 652 667
fees [1] 6713
few [1] 723
fiduciary [1] 5612
fight [2] 582425
fighting [1] 5812
filed [3] 4114 473 669
Finally [1] 6719
FINANCE [2] 16 35
financial [2] 814 329
find [7] 2923 401415 4316 458
481 6019
fine [1] 632
fingerprint [1] 5012
first [10] 7123 102 1412 1610
1724 2324 351 5711 6514
FISHER [23] 118 2313 3679 5
12151721 10418 1381013 16
31321 173 4425 63202123
fisheries [1] 81
fit [2] 106 1520
five [3] 818 389 523
fixed [8] 212 2219 331216 495
6 533 6420
floating [1] 534
floodgate [1] 279
floodgates [3] 267 3116 6617
flux [6] 189 3523 361520 6415
17
focus [1] 3213
following [1] 5913
foolish [1] 1816
foreign [39] 3131819 7141518
812 97 1216 19720 219 234
9 2512 3219 3324 391622 42
2910 4320 489111425 4919
51319 52681019 6115 624
6720
foreign-cubed [1] 621
forever [1] 44
forgive [1] 1623
form [5] 1172123 1434
former [2] 6222 6411
forth [1] 4421
forward [8] 131424 142 2513
265 32314 606
foundation [1] 5116
founding [2] 620 548
Four [3] 632024 6610
Francisco [2] 5115 548
fraud [3] 342323 356
friend [6] 2016 2120 254 6516
6625 685
friends [7] 344 3920 4414 4510
468 4723 5022
front [2] 426 444
frozen [1] 2117
FSIA [10] 1411 15423 2718 297
5515 617 66121616
fulfill [3] 3320 422125
full [5] 354 4816 4918 522025
fully [1] 1023
function [1] 6225
functional [5] 519 538 541719
23
functions [3] 5123 6523 663
fund [2] 582425
funded [1] 555
funds [2] 196 5323
further [1] 332
future [1] 102
G gave [5] 517 124 349 382 4514
General [7] 120 322 113 1716
1811 6419 676
Generals [1] 686
generally [1] 5416
George [1] 6613
gets [1] 4820
getting [3] 923 148 5221
GINSBURG [5] 326 3520 4513
17 4821
Ginsburgs [1] 436
give [24] 56 61722 824 1018 11
21 1221115 131 15171920
3016 31814 3719 448 45415
4916 518 5417 688
given [10] 41 15122 175 1914
2211 3115 349 361
gives [4] 31117 812 1116
giving [1] 6410
Glad [1] 2423
global [1] 5824
gloss [1] 4413
goal [1] 1411
Gorsuch [6] 410 163142225
1813
got [9] 510 2317 289 467 4918
5513 5724 5925 6013
gotten [1] 3715
government [7] 127 318 3811
48911 6224 6819
governments [4] 92 4522 6425
668
governmental [1] 123
governments [11] 31319 812 9
1 12110 219 23410 2720 32
20
governs [1] 3511
grab [1] 6024
granddaddy [1] 4010
grant [8] 2023 2225 2313 246
4621 4816 5121 5822
granted [4] 4624 4878 516
granting [1] 4117
grants [2] 824 302
gratified [1] 556
gravamen [7] 25222425 5619
5722 6722
great [3] 188 2425 4025
gross [1] 4625
group [2] 710 5817
groups [2] 572224
guarantee [1] 5522
guess [6] 922 299 4213 4423
5517 639
H
Heritage Reporting Corporation Sheet 3 disruption - guess
72Official - Subject to Review
half [1] 2810 importing [1] 1419 11 595 56101314 591113 60122 61
hand [3] 4823 6479 impose [1] 5321 itself [7] 716 811 116 2416 372 1 6718
happen [4] 59910 631011 incentives [1] 142 4218 6325 lawsuits [5] 319 566 621 6625
hasten [1] 1424 include [1] 561 J 6711
headquarter [1] 1022 Including [1] 2711 lay [1] 1925
headquartered [4] 1022 2619 inconceivable [2] 43812 JAM [2] 13 34 lead [4] 153410 319
25 6213 incorporate [1] 3518 JEFFREY [5] 118 2313 37 63 least [4] 186 2410 497 5818
headquarters [2] 2615 292 incorporated [6] 325 72 169 33 21 leave [1] 420
Health [1] 5823 14 3423 6616 JONATHAN [3] 120 26 2010 leaves [1] 5512
hear [2] 33 557 incorporates [2] 5067 JR [2] 124 210 led [1] 449
heard [2] 4425 4822 incorporating [2] 509 648 judge [1] 1319 left [1] 2016
heart [2] 501516 incorporation [1] 4912 judgment [2] 4711 6713 legal [2] 5918 6713
heightened [1] 144 increase [1] 226 judgments [3] 531925 545 legislation [3] 813 175 6311
held [2] 309 6615 indeed [4] 427 187 203 Judiciary [2] 619 1724 legislative [1] 1119
helps [1] 5911 indemnifies [1] 6712 July [1] 388 lend [2] 423 2412
hewing [1] 3621 indemnify [1] 6710 jump [2] 5514 634 lending [8] 889101623 2719
historical [4] 393 441318 4512 India [4] 2623 575 6122 juridical [1] 5113 2910 5525
history [4] 316 1119 2119 2818 Indian [2] 47 68 jurisdiction [1] 5413 lends [1] 302
hoc [1] 4612 indicate [1] 3123 jurisprudence [2] 523 657 lens [1] 712
Hoffman [1] 1514 indicated [1] 5715 Justice [96] 121 339 4310 513 less [1] 229
hoist [1] 6011 indicators [1] 4720 162022 616 717 817 912 108 Letter [6] 361919 3921 403 437
hold [1] 3723 individualized [1] 1417 1117 121822 133591112 14 465
Honor [4] 2420 365 4024 494 individuals [3] 419 491017 67 156 1634142225 1812 20 level [3] 3719 387 5225
Honors [1] 558 infer [2] 351616 713 2121 238111923 24259 liability [2] 67116
hope [6] 5521 5889 6177 6618 infrastructure [1] 6817 151821 2617 272691111 28 liberal [1] 6117
hopefully [2] 606 634 initial [1] 4022 2914 2938 301619 3147 32 lien [2] 5920 6010
hornbook [1] 1010 injured [1] 6121 6 33410 34524 3520 3612 40 light [1] 3317
hornbooks [1] 43 injuries [1] 262 1619 42715 4356 4420 4513 limited [1] 1224
host [3] 2025 217 5316 inquiry [1] 358 1517 467 4721 4821 504 522 list [1] 3020
housed [1] 6212 insertion [1] 69 16 5425 5524 5651416 576 little [2] 102 5510
however [1] 572 instance [1] 2220 15 581 607 629 6318 6424 66 live [2] 5925 603
I instead [2] 6120 6520
institutions [2] 81823
2 6820
K loan [3] 820 2924 602
loaning [1] 5914 idea [4] 14816 1618 2618
identified [1] 581
IFC [10] 710 8111919 256 283
323 591320 6620
IFCs [2] 3120 6621
II [1] 446
illustrate [1] 5711
IMF [6] 283 302 37202525 388
immediately [2] 407 6112
immune [4] 215 252 6718 6817
immunities [19] 2025 2216 234
instructions [1] 5011
intended [2] 347 513
Inter-American [1] 284
interest [1] 1114
interests [1] 6220
interfere [1] 3110
internal [3] 60131922
INTERNATIONAL [37] 16 3511
17 422 72224 824 1025 1421
1921 2221 232 251 286 3222
3323 4010 421 4621 477 485
KAGAN [6] 2121 2938 42715
435
keeps [1] 4824
kept [1] 6516
key [2] 542020
kind [5] 825 453 5124 606 614
kinds [5] 716 2618 3820 5921
6010
knowing [1] 101
knows [2] 198 5810
loans [5] 2912131822 5913
lobby [1] 1023
locate [1] 1014
lock [1] 175
long [5] 45 1011 1322 619 63
14
look [32] 61315 724 911 108 13
18 168121416 1713 2021 21
19 2311 2817 311920 351 37
10 4111 4412 45119 4623 50
10 547 5511 6017 6221 6311 3815172121 391213 4118 131924 5018 51481221 526 L 642 667 4622 4848 49916 5214 5933 23 5822 623 6622 68410 labor [2] 591922 looked [4] 44 158 3020 4524
immunity [119] 312171820 419 Interpol [1] 83 landing [2] 5515 635 looking [2] 3523 212425 559 9152125 1024 interpret [1] 1017 language [8] 1017 1518 202 21 looks [3] 3618 3812 4313 11672123 1229911161925 interpretation [2] 3415 659 13 343 359 421215 lot [10] 2017 221 2814 319 446 13120 145141721 15219 16 interpreted [1] 343 last [1] 49 5516 5625 5812 6110 636 1 191922 20124 213925 223 interpreting [2] 619 359 late [1] 4120 lots [2] 420 6114 991922 2337131415 2436 intervention [1] 5322 later [3] 4916 3810 lower [3] 2722 309 6725 101125 259 26510 28152025
297 3025 3121 3251521 33 investigate [1] 6018
inviolable [1] 213
latter [1] 1717
Laughter [4] 172 2318 241 55 M
121522 3411117 3523 36110 involved [2] 149 661 20 made [10] 53 1223 1415 18910
15172224 37121319 3847 39 IOIA [21] 31115 11816 2023 22 law [46] 32425 61121 714 82 3924 469 4710 561 6723
215161722 411822 4223 434 17 2624 331120 3718 3869 1056 131516 1419 151212 mail [1] 3422
920 448 4525 463 47618 48 22 391 411921 4314 4410 46 15 1620 17151618 18567 21 main [1] 582
17 5017 516921 522025 53 18 498 593 14 3314 3515 3619 383 439 malaria [1] 591
14 5513 5720 582121 6214 65 ISMAIL [1] 13 20 4524 462 479 4911 508 53 managing [1] 81
182224 isnt [6] 1618 2513 31910 3711 22 571417 621014 631213 64 manner [1] 6715
important [5] 1324 502 5317 57 4419 281320 653 many [9] 413181818 725 1025
16 6416 isolation [1] 2020 laws [1] 306 2618 322 581
importantly [1] 257 issue [6] 1219 211116 5621 58 lawsuit [14] 1223 15225 4723 margin [1] 6111
Heritage Reporting Corporation Sheet 4 half - margin
73Official - Subject to Review
market [2] 820 2918
massive [2] 5324 545
match [1] 4418
materiality [2] 3423 355
materials [4] 372 426 4413 45
12
matter [7] 113 1716 466 5016
16 515 6417
matters [1] 5814
mean [14] 4111213 64 914 248
251 371 4211 451819 5212
5418 5617
meaning [7] 179 3315 351518
22 64310
means [4] 524 3517 421620
meant [3] 64 223 2910
measure [1] 126
measures [1] 6019
mechanism [2] 4617 6014
member [1] 5325
members [3] 486 5224 539
mentioned [2] 1813 417
mess [1] 453
metaphor [1] 634
metes [1] 1714
method [1] 6715
might [2] 718 6620
mind [2] 523 681
minimum [1] 1524
minute [2] 3722 5124
minutes [2] 523 6320
mission [1] 444
mistake [1] 53
Mister [1] 293
mixed [1] 923
mixing [1] 644
modern [1] 1817
moment [5] 4115 105 3921 65
16
monetary [1] 411
money [14] 41223 820 2413 30
7 541 569 59141423 602 612
15 627
months [1] 389
morning [2] 2017 3116
most [6] 232 257 3316 4722 53
16 551
move [3] 3611 515 535
moving [1] 3623
much [5] 141 2517 3112 395 40
21
multi-country [1] 5211
multilateral [1] 5725
multinational [1] 2911
must [4] 251718 351616
N Nader [2] 341921
narrow [1] 4915
narrower [1] 499
nations [4] 418 397 4011 5412
natural [1] 354
nature [2] 123 2924
necessary [4] 1720 3510 3912
6523
Neder [1] 641
need [7] 1116 306 3124 3268
3712 4318
needed [2] 291 3823
negligence [2] 56711
negotiate [4] 1214 143 2825 67
5
negotiated [3] 115 1220 3914
never [1] 6723
New [1] 2616
next [2] 34 6617
nexus [2] 2517 553
nobody [2] 59 925
Nobodys [1] 6217
non-commercial [1] 85
none [3] 4411 651925
normal [1] 3414
nothing [3] 101 2411 404
notwithstanding [1] 487
Number [6] 242424 2713 3115
4424 6421
numbers [1] 2621
O OAS [4] 113 1221 282224
OBB [3] 2520 5618 587
objective [1] 4914
obligations [5] 332022 409 41
24 6515
obvious [1] 4624
obviously [2] 4710 6721
occurred [2] 2622
occurs [1] 2519
October [1] 111
Office [1] 686
officers [2] 214 2220
official [1] 215
officials [2] 192021
often [1] 5917
Okay [5] 512 2323 24518 467
old [1] 187
once [2] 4315 4620
one [47] 41823 5118 6217 819
1317 14369 1622 173 1868
1113 191218 211116 2424 25
10 273 3013 3118 3618 3812
4014 4313 4722 4823 4925 50
67 54613 5512 6015 64717
65615 6624 67319 688
ones [1] 329
one-way [1] 225
ones [1] 582
only [8] 423 62 2116 225 2810
296 417 6510
open [1] 3117
opening [1] 267
operating [1] 6216
opinion [4] 69 1624 3424 5617
opponents [2] 321 61
opportunity [1] 143
opposed [1] 554
opposite [3] 417 1345
oral [7] 114 2259 37 2010 337
oranges [1] 644
order [6] 292 306 3823 4620 47
15
ordered [1] 5718
Ordinarily [1] 296
ordinary [2] 610 117
Organization [16] 1124 1421 19
321 372021 4020 4118 4622
477 4819 519 5223 5824 623
organizations [1] 2614
organizations [56] 31218 422 7
2225 824 101421 1111422
214 2221 232 2518 261923
281319 3120 3222 3323 3711
4010 4219 4427 4851424 49
17 5018 5141222 52611 53
121724 5712 596 609 6114
6212 6318 6521 661423 67
14 68410
original [2] 1118 203
originally [1] 1616
other [41] 421 6225 77 8621
23 95 13125 141019 1715 18
21 1924 2113 224 23312 24
16 2912 3212 3446 3622 39
20 441114 4511 469 4723 50
22 5221 6315 64918 657810
664 688
others [2] 1221 324
otherwise [2] 3517 408
ought [5] 813 161 3624 5321
6310
ourselves [1] 578
out [19] 6810 1413 2416 2813
4089 4325 449 5122 5411 55
9 581015 5977 616 656 676
over [7] 1620 3024 3525 4319
21 542324
overall [2] 4916 533
override [1] 5318
own [10] 615 12131317 1518
2815 5311 6011 6745
P pm [1] 6822
package [1] 411
PAGE [5] 22 3420 3717 4113
481
papers [1] 6414
part [5] 1219 1411 2122 4322
564
Parte [1] 1514
particular [6] 916 178 341820
362 5624
particularly [1] 2118
partly [1] 1120
parts [1] 5914
party [5] 2724 2923 3011113
passage [2] 416 4314
passed [5] 525 813 1316 452
6613
past [3] 41215 92
path [1] 5022
pathway [1] 156
pathways [3] 119 1721 181
pay [2] 5324 545
people [4] 369 5013 5718 6014
percentage [1] 2812
perfect [1] 183
perform [1] 6522
performing [1] 661
perhaps [1] 3110
permissible [2] 623 1321
person [3] 2320 4316 6120
persons [2] 5114 568
pertinent [1] 1618
Peru [1] 1514
petard [1] 6012
Petitioners [10] 141923 24814
38 201219 6322
phrase [1] 2020
pick [4] 164 2015 376 629
picks [1] 281
pile [1] 627
piracy [1] 6425
place [3] 4712 546 6517
plain [2] 314 1913
plaintiff [1] 311
plaintiffs [1] 6115
plant [1] 6121
plants [1] 6814
please [3] 310 2014 3310
point [17] 1718 281222 297 34
19 35111 377 4023 501924
524 53814 551 641216
points [8] 166 3115 3945 504
6324 6511 676
policies [1] 142
policy [9] 1079151516 1418
621923 6511
political [1] 1418
politically [1] 1423
position [5] 1525 1822 4610 66
810
possibly [2] 38510
potential [1] 6715
power [2] 249 6121
powerful [1] 613
practical [2] 101920
practice [1] 296
precisely [1] 3718
prescribe [2] 495 533
prescribed [1] 4716
prescribes [1] 3311
present [1] 324
presented [1] 2515
President [9] 55 1225 136 225
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Heritage Reporting Corporation Sheet 5 market - principles
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4019
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2224 324 3720 44555 5823
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Thats one argument
The second is this If we decide
against you and weve made a mistake or along
comes a case where they really should have
immunity the President and the State
Department can give it to them
If we decide with you well if along
comes a case where they should enjoy the
immunity no nobody can do anything Did I
say that correctly Have you got the
argument -shy
MR FISHER Okay
JUSTICE BREYER -- or have I said it
backwards
MR FISHER No no no
JUSTICE BREYER Did I say it right
MR FISHER So I think you gave me
two things and then one before it which was
the statutory text
JUSTICE BREYER Yes Thats right
MR FISHER So let me start with the
statutory text Justice Breyer And the word
is in this Courts jurisprudence always
always means at the time of suit not at the
time the statute was passed And weve cited
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reams of cases to that effect My opponents
cite only one case on the other side thats an
Armed Career Criminal Act case Even there
is didnt mean at the time of suit it meant
at the time of the prior conviction So is
is on our side of this case
But in Carcieri which is the now
case the Indian case the Court went out of
its way in that opinion to say the insertion of
the word now takes us out of the ordinary
situation which is when the referenced law
applies at the time of suit And so you can
look at the Sutherland treatise which dates
back to 1904 on this principle
And look at its -- in -- in your own
case Justice Breyer I think if I was going to
give you one case it would be the Steamboat
versus Chase case we cite in our reply brief
Thats interpreting the Judiciary Act which
goes all the way back to the founding of
course and says where the common law is
competent to give a remedy such and such a
remedy is permissible
And in Steamboat the Court rejected
the exact argument the other side makes here
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which is first of all that the law had to be
incorporated at the time of suit and second of
all that there was something different about
the common law as to a statute at the time of
the enactment So all of the textual stuff is
in our favor
Now youve also asked me two other
questions and let me address them So starting
with the commercial activity exception as
applied to a group like the IFC when you
answer -- when you think of that question its
a question of how close you -- you put the lens
into whats going on here
So if you just take a foreign state as
the -- as the comparator here a foreign state
itself does all kinds of things Like you
said Justice Breyer they are not commercial
activity But a foreign state might have a
bank for example that does almost all
commercial activity
And so the same thing is true with
international organizations and let me answer
that in a few different steps So first of
all look at the sweep of international
organizations Many do things like regulation
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for example managing fisheries They do
things like dispute resolution law
enforcement Interpol They do scientific
research and agricultural research All of
those things are non-commercial activities on
the other side
Then you have the category the
special category of lending banks but even
within lending banks not all the things that
lending banks do are commercial activity The
IFC itself on its website talks about how it
gives advice to foreign governments about
legislation that ought to be passed regulating
financial transactions with the private sector
That is not probably commercial activity
And then even within lending
activities Justice Breyer just take the World
Bank it has five separate institutions Now
the IFC is on one side What the IFC does is
-- is loan money at market rates for profit for
private sector projects There are other
components of the World Bank and there are
other lending institutions that are
international organizations that give grants
for public works programs or that do the kind
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of spending that governments do And the
governments argued in past cases and we think
theyre probably right that that is not
commercial activity either
So when the other side says well
everything is commercial activity its no
different than the foreign state coming to this
and saying well if the Bank of Switzerland
does commercial activity then were -- were
stuck Well no no no its just how closely
you look at the problem
JUSTICE BREYER What about -- the
third was if we -- if we decide with you -- if
we decide against you see that would mean
there is sovereign immunity But there
shouldnt be in a particular case the State
Department can waive it and they have to be -shy
response
But if we decide for you and then
theres a case where there really shouldnt be
sovereign immunity or rather -- rather there
really should be I guess -- see thats what
Im getting mixed up You see if we decide
against you and they really should have
sovereign immunity in this case nobody can do
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anything So knowing nothing about the
future it seems a little safer the first
than the second
MR FISHER Well Im going to turn
back in a moment to the law and why that just
cant fit within the law but as to just the
policy question youre asking me even there -shy
JUSTICE BREYER Well you can look -shy
the reason I ask policy questions is because
the hornbook said yes apply it as of now as
long as its consistent with the purpose of the
statute And the purpose of the statute going
back to 1945 and the UN and everything was
to get these organizations to locate here
So its not just policy for policy
Its policy for purpose And purpose is tied
into how you interpret the language
MR FISHER So let me give you the
practical answer and then the purpose answer
On the practical answer
organizations especially if they want a
headquarter here or are headquartered here are
fully able to -- to lobby Congress or the
executive branch for special immunity And
there are many examples across international
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organizations
Take the Organization of American
States OAS And the solicitor general
discusses this in -- the organization in its
brief In 1994 it negotiated a special
immunity provision for itself to get more than
the ordinary restrictive form of immunity that
was available under the IOIA
So there are -- there are pathways
available and they have been used even more
so
Remember the United States as you
say has a -- has a sometimes principal
interest in these organizations So it is
quite responsive to them when they come and
say We need more than the IOIA gives us
But Justice Breyer let me turn back
to the -- the original purpose which was the
legislative history is quite clear on what the
purpose was As you say this was partly to
create a form of immunity to give some comfort
to these organizations But the question is
what form of immunity did they ask for and what
did they get
What they did is they came to Congress
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and said treat us like foreign governments
Give us immunity as Congress put it in a
Senate report of a governmental nature And
so what did Congress do It gave them exactly
what they asked for It said were going to
treat you as a default measure like a foreign
government
And remember the words of the
statute are same immunity Same immunity
as is enjoyed by federal governments So were
going to give you the same immunity subject to
the Presidents ability to just -- adjust it
and subject to your own ability and your own
treaty to negotiate for more and subject
thirdly to Congresss ability to give you some
immunity that you dont have even by way of
your own treaty
JUSTICE SOTOMAYOR Can we go to that
issue raised in part The special immunity I
know was even negotiated by the UN I think
in the 1990s and OAS and others but assume
that were in your regiment and Justice Breyer
made the assumption that if a lawsuit came to
us now under your theory and it was limited
immunity that the President or Congress could
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give immunity to the other side
I dont think so
JUSTICE BREYER No its the
opposite
JUSTICE SOTOMAYOR The opposite The
President cant decrease it correct So that
problem still remains with your -shy
MR FISHER Well -shy
JUSTICE SOTOMAYOR Yeah
MR FISHER -- I think it -- it may
or may not remain Justice Sotomayor
JUSTICE SOTOMAYOR Thats my -shy
MR FISHER Certainly we could -- we
would say we can go forward on this suit
because -- because there is no such law
If that law were passed youd have
two questions One is did Congress make it
retroactive And you look to Altmann to think
about how to judge the retroactivity of
immunity provisions And then if it were
retroactive whether that were permissible
But you know were a long way from
-- from that sort of a situation I think the
important thing going forward and this is I
think what the concern is on the other side
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is not so much about this case but about
incentives and policies going forward they
have every opportunity to negotiate in one form
or another or to procure a heightened form of
immunity
And Justice Sotomayor let me say one
more thing to you and Justice Breyer about you
know the idea of the executive branch getting
involved This is one of the problems I
submit with the other sides argument
Remember part of the goal of the FSIA
in the first section of the Act in Section 1602
is to get -- is to get the executive branch out
of the immunity business
Congress made the determination that
it was a bad idea to have every case turning on
individualized suggestions of immunity and
executive branch political policy And so the
other side by importing the common law of
1945 would reintroduce that problem into
international organization immunity in a way
that we dont think would be very good
politically or very workable in the courts
And Id hasten to add that even under
the rule of 1945 if the question were what
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does the executive branch think about any given
lawsuit or any given immunity for any given
type of suit that would just lead you right
back to the FSIA and it would lead you back to
the same conclusion that we submit to you here
So either pathway whether Justice
Breyer you start with the way youve always
looked at cases with the word is and the
word same and the reference canon that Ive
described and say all of those things lead you
to a time of suit rule or if you start with
the law of 1945 and say what was the law in
1945
Well Hoffman and -- in Ex Parte Peru
were clear that the law of 1945 was the
executive branch decides and its not for the
Court -- this is -- Im going to give you the
Courts own language -- its not for the Court
to give immunity where the executive branch has
not seen fit to give it
And if that were the test youd come
right back to where you -- where I started
here which is that the FSIA would control or
at the bare minimum the executive branch
position in this lawsuit on the type of
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immunity that ought to apply in this situation
would control So -shy
JUSTICE GORSUCH Mr Fisher if I can
pick up on Justice Breyers question The
reference canon I take all -- all of your
points but sometimes lets say we have a
statute that -- that refers to another statute
Usually we would look at the second
statute thats being incorporated as of the
time of -- of the adoption of the first
statute Right So if -- if this statute were
to say go look at Section 5 -shy
MR FISHER Right
JUSTICE GORSUCH -- we wouldnt look
at it the way its been subsequently amended
Wed look at it as it was originally enacted in
1945
Why isnt that -- that idea pertinent
here you know when we refer to a specific
law we dont take it to evolve over time
MR FISHER So for two reasons
Justice Gorsuch and one of them if youll
forgive me is going to be something you said
in the Alan Contoe opinion
JUSTICE GORSUCH I was afraid of
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that
(Laughter)
MR FISHER But for two reasons One
is Congress has a choice to make when it writes
legislation It can lock in a given rule by
setting a specific statutory provision and says
thats the rule we want just like if Congress
uses a particular word at the time of the
enactment the meaning of that word at the time
of enactment would be what Congress -- wed
assume Congress wanted
Or Congress could do something
different which is to say look were not
sure exactly of the metes and bounds of the
law Were just going to tie it to this other
area of law as a general matter And thats
what Congress did here It did the latter
So it took an area of law as a point
of reference and said Just use that as the
default rule and then adjust as necessary And
those are just two different pathways Congress
can go down
And they date as I said all the way
back to the First Judiciary Act there in the
Sutherland treatise all the way back to 1904
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and so theres just two different pathways
Congress can go down
And it makes perfect sense I think
in a situation like this especially where you
have a common law doctrine being referenced at
least a common law at the time and one that
was indeed not just any old common law
doctrine but one that was in a great deal of
flux at the time So it made every reason -shy
it made every good reason for Congress to have
a general reference not a specific one
And then the second reason Justice
Gorsuch is the one you mentioned sitting on
the Tenth Circuit which is that as time goes
by it becomes all the more stilted or
antiquated or even foolish sometimes to try to
answer questions in the modern day according to
what some bygone era doctrine would have
required and especially a bygone era doctrine
like this
If I understand the other sides
position correctly basically the question
theyre having -- they would want every federal
court to ask in these cases is what would the
Truman Administrations State Department have
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wanted to do in this case
And when you have things like this
which didnt even -- an organization that
didnt even exist at the time sometimes doing
activities that werent even contemplated at
the time things like sovereign wealth funds
which foreign sovereigns now engage in for
example who knows what the State Department
would have thought then
I think theres every reason then to
fall back on the reference canon And if I can
say one more thing before reserving my time if
you have any doubt about just the plain text
argument Ive given you I would urge you to
compare the text in Section 288a to the text -shy
Section 288d which has the exact dichotomy
that -- that Ive been discussing today
One subsection subsection (a) says
that the same immunity rules apply and
subsection (b) says that foreign officials -shy
Im sorry international organization officials
are entitled to absolute immunity
So this is yet another reason why if
the other side were correct and if Congress had
wanted to lay down the rule they did why would
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they not have just used the absolute immunity
language in subsection (b) of subsection (d)
and that indeed was the original draft of
this act that was discarded
So I could go on but Id rather save
the rest of my time for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Ellis
ORAL ARGUMENT OF JONATHAN ELLIS FOR
THE UNITED STATES AS AMICUS
CURIAE SUPPORTING THE PETITIONERS
MR ELLIS Mr Chief Justice and may
it please the Court
If I could Id just like to pick up
right where my friend left off Theres been a
lot of discussion so far this morning on the
text of Section 288a We agree that the
Petitioners have the far better reading of that
phrase in isolation but I think it really
settles the deal when you look at the entire
structure of the Act
The -- the IOIA doesnt just grant
immunity in Section 288a(b) but it provides a
whole host of immunities and it does it in two
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different ways In several different
provisions the Act sets a fixed rule of
immunity So archives are inviolable and
officers and employees of the organizations are
immune from suit with respect to their official
acts
And then there are a -- a host a
collection of three provisions that set the
immunity by reference to foreign governments
Theyre Section 288a(d) Section 288d(a) and
theres Section 288a(b) the one at issue here
Respondents concede that the
referential language in those other two
provisions do refer to the state of the law as
it is today
Its only the one thats at issue in
this case that they say was frozen We dont
see how that can be and thats particularly
true when you look at the drafting history that
my friend referred to
JUSTICE KAGAN Mr Ellis before you
get to that another part of the structure is
this provision that deals with presidential
authority and thats essentially a roll-back
authority of immunity
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Doesnt that make a lot more sense
that provision if you assume that Congress
meant for there to be absolute immunity In
other words the presidential authority is a
one-way ratchet The President can only under
this provision roll it back It cant increase
it
So to me if I -- if -- if -- if -shy
if the immunity -- if the immunity is less than
absolute you would think that they would have
given the presidential authority both ways
MR ELLIS Sure The reason that
argument doesnt work is because Section 288
the Presidents authority under that provision
doesnt just apply to Section 288a(b) It
applies to all of the immunities provided by
the IOIA
And as I was just describing some of
those are fixed immunity rules that are not
absolute And so for instance the officers
and employees of international organizations do
not receive diplomatic immunity That was a
big deal at the time
And -- and yet the President cant -shy
couldnt grant that up I think what that
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provision shows is that Congress wanted to
provide international organizations at most the
immunity from suit and other privileges of
immunities that foreign governments received
and not more so
And yet Respondents are here today
asking you for exactly that more immunity -shy
JUSTICE BREYER But on that -shy
MR ELLIS -- than foreign
governments receive
JUSTICE BREYER But look whatever
other things it refers to the provision allows
the President to waive immunity not to grant
immunity And your argument is they have
immunity Right
Do I have -- I get this backwards
This is the third time Ive got it backwards
(Laughter)
JUSTICE BREYER Sorry The provision
allows the person to be sued Is that right
MR ELLIS It does allow them to be
sued
JUSTICE BREYER Okay So I was
right I had it backwards the first time but
not the second not the third all right
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(Laughter)
JUSTICE BREYER It allows the
President to waive the immunity
MR ELLIS Thats right
JUSTICE BREYER Okay It doesnt
allow him to grant the immunity
MR ELLIS It does in a sense I
mean -shy
JUSTICE BREYER But the power to
waive the immunity at least in this section
amounts to nothing if they have no immunity
because for example all they do is lend
money
MR ELLIS So -- so a couple -shy
JUSTICE BREYER Thats -- thats -shy
and the other way it seems to work itself out
MR ELLIS Understood
JUSTICE BREYER Okay
MR ELLIS A couple responses to
that Your Honor
JUSTICE BREYER Thats the question
I think
MR ELLIS Glad to be able to address
that Number -- number one just to be clear
we -- they do have a great deal of immunity I
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mean foreign -- international organizations
and foreign states are presumptively immune
And I would agree with almost everything
that -- maybe everything that -- that my friend
said about why the commercial activity
exception even with regard to IFC and -- and
most -- more importantly with regard to the
vast sweep of these organizations is not going
to eliminate immunity
I would add one more is that even a
case like this we have serious doubts I
think -- we think in fact from what we know
this suit isnt going to be able to go forward
regardless of the answer to the question
presented because in addition to having -- to
being connected in some way to commercial
activity there must be a much stronger nexus
It must be based on commercial activity that
occurs in the United States
We think the Courts decision in OBB
makes clear that the way you apply that is to
ask Whats the gravamen of this suit Its
not enough to have some attenuated connection
but whats the gravamen
And the gravamen of this suit as we
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understand it is -- is tortious conduct that
occurred in India injuries that occurred in
India And we dont think -- we have serious
doubts that this is going to be able to go
forward even under restrictive immunity
And so we do not think that what were
doing is opening the floodgates here rather
that the sort of concerns that would be barred
-- cases that would be barred by Respondents
absolute rule of immunity and would be allowed
by ours are -- are sort of quintessential
domestic disputes contract disputes with your
contractor who renovated the building the slip
and fall at the -- at the organizations
headquarters or the driving accident on the
streets of New York and DC
JUSTICE SOTOMAYOR Do you have -- do
you have any idea about how many of these kinds
of organizations are headquartered in the
United States
MR ELLIS I think the numbers are in
the 20 to 30 range Theres about -- somewhere
80-some organizations that have been designated
for protection under IOIA and 20-some that have
-- I think are headquartered in the United
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States
JUSTICE SOTOMAYOR That are
commercial like this one
MR ELLIS No no no No I did
not -- no
JUSTICE SOTOMAYOR Were -shy
everybodys assuming -shy
MR ELLIS Right
JUSTICE SOTOMAYOR -- a floodgate
MR ELLIS Sure no There are -shy
JUSTICE SOTOMAYOR Including Justice
Breyer
MR ELLIS -- there are a number of
development banks but even then even -- even
the development banks even if you talk about
the World Bank its not clear that those
commercial activities are the sorts that the -shy
the FSIA captures with the commercial activity
exception Lending there is to sovereign
governments
And -- and as the Court has been -- as
lower courts have explained that sort of
commercial activity is not the sort that a
private party could engage in So its not the
sort that the commercial activity exception
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picks up
JUSTICE BREYER Well I -- I have the
IFC the IMF the World Bank the
Inter-American Development Bank the Asian
Development Bank the African Development Bank
the International Development Association So
I -shy
MR ELLIS Sure I -shy
JUSTICE BREYER -- Ive got -- thats
only half of them
MR ELLIS Thats -- that -- Im not
sure what percentage that is I want to point
out that some of those organizations -shy
JUSTICE BREYER There are a lot
MR ELLIS -- have their own immunity
provision in the -- in their charter And so
thats what we think -- if you look at the
history thats what -- thats how it has been
dealt with for organizations that require
absolute immunity Weve entered into
agreements
I would point again to the OAS
agreement where the State Department is just
crystal-clear that what OAS did in that
agreement was to negotiate absolute immunity
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because they thought thats what they needed in
order to put their headquarters here
JUSTICE KAGAN But Mister -shy
MR ELLIS We agreed to that and we
said But hey this is not our usual
practice Ordinarily we -- we afford only
restrictive immunity We point to the FSIA
JUSTICE KAGAN Mr Ellis I -- I
guess Im not sure I -- I quite understood what
you meant As to the core lending activities
of these multinational development banks in
other words making loans where private actors
would not make loans do you have a view as to
whether that counts as a commercial activity or
not
Did you say that that would not count
as a commercial activity because theyre making
loans that the -- that the private market would
not make
MR ELLIS No Im -- Im not saying
that its -- that its enough that theyre
making loans that a -- that a private -- they
couldnt find a private party to provide Im
saying if the nature of the loan is such that
its -- its not the sort of transaction that a
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private party would enter into so think about
the IMF that grants -- that lends to sovereigns
and they do so on the requirement that the
sovereign enact certain restrictions -shy
regulations and change their -- their -- their
laws in order to assure that they dont need
the money again
That is the sort of thing thats been
held by lower courts and weve advocated is
not a commercial activity Thats just not the
sort of transaction that a private party can
enter -- enter into Its not just that a
private party didnt Its that -- that no one
-- thats not something that you can do
Thats a sovereign act
JUSTICE BREYER But can you give
me -shy
MR ELLIS Or a quasi-sovereign act
JUSTICE BREYER -- anything to assure
me because when I looked through this list I
thought that there were development banks like
the World Bank which is a pretty big deal as
well as in Asia in Africa were trying to
encourage development all over the world and
suddenly by removing the sovereign immunity
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because the plaintiff will claim this is a
commercial activity
MR ELLIS So -- so -shy
JUSTICE BREYER And youre not
denying it
MR ELLIS And so -shy
JUSTICE BREYER So what is the
assurance that the government can give us that
this isnt going to lead to a lot of lawsuits
and this isnt going to interfere with perhaps
activity that the United States traditionally
has been very much in favor of
MR ELLIS Absolutely Let me -- let
me give you a couple things I think weve
given you a number of -- of points already this
morning as to why we dont think the floodgates
are going to open
If -- if theres one more Ill say
just look at the -- the charter of these
organizations Look at the IFCs charter
They already waive suit waive immunity for
suits going directly to their core activities
They -- they in fact indicate that they -shy
they need to waive suit in these suits
And so I -- I think when youre
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talking about what are the suits that are going
to come up under commercial activity many of
them are already going forward because the IFC
and the World Bank and others have waived their
immunity
JUSTICE GINSBURG And they need to
because
MR ELLIS They need to because no
ones going to enter into a financial
transaction with them if they -- they know they
cant sue if it -- if it goes south
The other thing -- I want to also
focus the Court on the -- on the suits that we
know are not going to go forward on the
absolute immunity side Were talking about
suits by -- by US citizens and residents
about domestic conduct and theyre seeking
redress in US courts
These are the suits that foreign
governments are -- are able to be sued on and
dont have immunity And we dont see any
reason why international organizations should
not also be subject to suit in those
circumstances and we think thats exactly what
the Congress was trying to do when it enacted
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Section 288 in 1945
If there are no -- no further
questions we ask the Court to reverse
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Verrilli
ORAL ARGUMENT OF DONALD B VERRILLI
ON BEHALF OF THE RESPONDENT
MR VERRILLI Thank you Mr Chief
Justice and may it please the Court
The IOIA prescribes a standard of
virtual absolute immunity that is fixed and not
evolving We know that because the text
incorporated common law terms that had a
settled meaning of virtually absolute immunity
and because a fixed standard makes the most
sense in light of the statutory context and
purpose
Now the reason that Congress enacted
the IOIA was to fulfill treaty obligations that
committed us to provide virtually absolute
immunity Those treaty obligations did not
commit us to treat international organizations
the same as foreign states were treated They
committed us to the substantive standard of
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virtually absolute immunity
And therefore if -- if -- if the
language in section 288b is interpreted in the
way my friends on the other side suggest -shy
JUSTICE SOTOMAYOR So why didnt
Congress say that the way it did in the other
provisions of this Act And if it intended
that in no change it could have said it and
given the very exception it gave which is that
the President or the executive could reduce
immunity which was the standard at the time
MR VERRILLI So let me start with
the basic question We think if the Court
applies the normal rules of construction that
it applies in statutory interpretation cases
that Congress did say that it was providing
virtually absolute immunity
And I think a case in particular that
I would point the Court to is the Nader
decision 527 US and in particular to page
21 of the Nader decision Thats a case -shy
that case of course was about whether mail
fraud and wire fraud incorporated a materiality
standard This is an opinion by Chief Justice
Rehnquist unanimous for the Court on this
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point The Court said first we look to the
text of course and when looking to the text
if we -- if -- and in looking to the text
based solely on a natural reading of the full
text materiality wouldnt be an element of the
fraud statute
And then the Court says But that
does not end the inquiry because in
interpreting statutory language theres a
necessary second step And this is -- Im
coming to the point that I think governs here
which is that it is a well-established rule of
construction a rule of construction that
where Congress uses terms that have accumulated
settled meaning under the common law a court
must infer must infer unless the statute
dictates otherwise that Congress means to
incorporate the established meaning of those
terms Now the -shy
JUSTICE GINSBURG What about the
argument that there wasnt an established
meaning in -- what was it -- 1945 that it -shy
the -- the status of the immunity was in flux
It had been absolute but then we were going
over -- the State Department was advising the
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court whether immunity should be given in a
particular case
MR VERRILLI Theres a bit of a
suggestion to that effect in the brief of the
United States Your Honor but I would
respectfully suggest that is not a fair
characterization of where things stood in 1945
at all
It is true that some people within the
State Department in 1945 thought that immunity
should move to a more restrictive standard but
the Justice Department would not even advance
that standard in this Court at the request of
the State Department and this Court did not
describe the immunity as being in flux This
Court said the standard was virtually absolute
immunity
If one looks even in 1952 at the Tate
Letter the Tate Letter didnt say the law was
in flux in the United States It said the
United States was hewing to the standard of
virtually absolute immunity but other
countries were moving towards a standard of
restrictive immunity and therefore we ought
to reconsider what were doing
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So I just -- I mean the Court can
read these materials for -- for itself but I
just respectfully do not think its a fair
consideration of where things stood in 1945 at
all
And then if I could Id like to pick
up on a related point that came up in the brief
of the United States Its another statement
in the brief of the United States and it came
up in argument today that look this really
isnt a problem because for those organizations
that need immunity that goes beyond the -- the
restrictive immunity weve always understood
that they get -- they can go get a special
statute and theyve gone and gotten special
statutes
The United States says on page 27 of
its brief precisely because the IOIA didnt
provide that level of immunity they give these
three examples IMF World Trade Organization
and Organization of American States
Id like to take a minute and go
through each of them because it doesnt hold up
with respect to each of them With respect to
the IMF for example it is true the IMF you
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know it has a -- has a treaty There was a
statute that gave that treaty effect under US
law which ended up providing for absolute
immunity
But it cant possibly be that that was
undertaken based on any sense that the IOIA
didnt provide that level of immunity because
the IMF statute was enacted in July of 1945
and the IOIA wasnt enacted until five months
later So it cant possibly substantiate what
the government was saying
If one looks at the WTO treaty it is
true with respect to that treaty that it
committed us to a very wide scope of
immunities It said that the United -- that
the United States will commit to providing all
or virtually all of the immunities provided
under a whole different UN convention the
UN convention on specialized agencies
Now that convention has all kinds of
tax immunities and property immunities that go
way beyond what the IOIA provides So of
course they needed another statute in order to
make those treaty commitments That doesnt
prove anything about whether anybody thought
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that the IOIA failed to provide virtually
absolute immunity
In fact the historical evidence I
think really to the extent it points in any
direction it points very much more in our
direction And the best way to see that is
with respect to the way the United Nations was
treated under -- by the executive branch in
this country
Now we signed the UN charter in
1945 committed us to provide what the charter
describes as the necessary immunities Then
the UN Convention on Immunities was
negotiated in 1946 which said that the UN
should get virtually absolute immunity Not
the same immunity as foreign states virtually
absolute immunity
Now the United States did not ratify
that convention until 1970 So on the theory
that my friends on the other side have from
the moment of the Tate Letter in 1952 when
foreign state immunity became restrictive and
not virtually absolute anymore we were in
violation of the commitment we made in the UN
charter
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Now if that was true you would
certainly expect the State Department A to
address it in the Tate Letter but theres
nothing in there Its a classic case of the
dog that didnt bark And B you would expect
them to try to do something about it like get
the UN Convention ratified immediately
because otherwise we were going to be out of -shy
out of compliance with our obligations to the
granddaddy of all international organizations
the United Nations
But theres not a -- from 1952 until
the ratification of the Convention in 1970 you
cant find one word by anybody in the executive
branch ever saying that What you do find -shy
JUSTICE SOTOMAYOR What commercial
activities was the UN doing at that time
MR VERRILLI Well -shy
JUSTICE SOTOMAYOR I know today its
a very different organization but its not
clear to me that there was much going on that
was commercial at its initial stages
MR VERRILLI I take that point Your
Honor but what I would say in response is that
there was a very great deal of sensitivity
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about the whole package of -- of immunities
that were available to the UN and its
diplomats and its -- and its workers
And there was concern all along from
1952 to 1970 that -- that -- where the
executive was urging Congress to ratify the
convention but the only things ever mentioned
were the diplomats -- immunities for diplomatic
individuals
And then when you get to 1970 and you
actually look at the Senate report accompanying
the ratification this was not in our brief
but its at page 31 of the brief of the -- of
the scholars who filed the brief in support of
us It quotes the Senate report from 1970 and
what the Senate report says is were not
granting the UN any -- the UN as an
organization any immunity it didnt already
have under the IOIA
So as late as 1970 it was just quite
clear that everybody understood the IOIA
conferred virtually absolute immunity And of
course thats because it was -- it was enacted
to comply with our treaty obligations
It wasnt enacted to make sure that
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come what may that international organizations
would get treated the same as foreign states
That is -- you know thats the best way to
think about it is its just a completely
anachronistic way of thinking about the body of
materials in front of you
JUSTICE KAGAN But even what you just
said Mr Verrilli it wasnt enacted to make
sure that foreign organizations would get
treated the same as foreign states
I mean thats exactly what the
language of the thing says
MR VERRILLI Well so I guess a
couple of things about that I think the right
way to think about the language Justice Kagan
is that it was a means to an end in 1945 when
it was enacted
It was not the end in itself to assure
equivalence of treatment come what may It was
the means by which Congress ensured that it
would fulfill its treaty commitments which were
-- and those treaty commitments were to provide
virtually absolute immunity
And we know the Senate report says
were enacting this provision to fulfill our
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treaty commitments And our treaty
commitments again were not to treat them the
same They were to provide virtually absolute
immunity So -shy
JUSTICE KAGAN Do you think it was -shy
you answered Justice Ginsburgs questions about
how far we were from the Tate Letter in 1945
but do you think it was inconceivable to
Congress that the common law of immunity would
change
MR VERRILLI Well I -- I -- I cant
say that it would be inconceivable to anybody
but what I can say is if one looks at the
debates surrounding the passage of the IOIA
is once again its a dog that didnt bark
You cant find a single person
anywhere saying anything remotely like the
proposition that we need to adopt a standard
that will evolve over time because we have a
concern that foreign sovereign immunity law
will evolve over time
That just was not any part of
anybodys thinking at that time They were
trying -- you have to remember this is coming
out of the Bretten Woods system We have
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Bretten Woods We set up all these
organizations
They have a -- they have a desperate
mission in front of them to try to rebuild the
world -- the world after the carnage of World
War II Theres a lot of pressure on Congress
to get these organizations up and going and
give them the immunity we promised them so they
can go out and do their work Thats what led
to the enactment of the IOIA
It was none of these other things as
I said I really think if you look at the
historical materials its the -- the gloss
that my friends on the other side are trying to
put on it is completely anachronistic
Theyre taking a different concept
that theyve come up with now and trying to
retrofit the historical facts to match it and
it just isnt right
JUSTICE BREYER Is that -- is that -shy
the Russians at that time 45 and so forth
were putting all these businesses into state
entities So my guess is there were -- there
were a number of cases and what I thought I
heard Mr Fisher say is if we really go back
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and look at this well see that the status quo
before this passed was not absolute immunity
but the status quo was a kind of mess where
sometimes the State Department would say give
them immunity and sometimes the State
Department would say not
Now what is the actual situation as
far as youve been able to find it
MR VERRILLI Well I dont -shy
respectfully with respect to my friends on the
other side I dont think thats a fair
characterization of the historical materials
JUSTICE GINSBURG Thats the same -shy
the answer you gave to me is the answer you
would give to Justice Breyer
MR VERRILLI Yes
JUSTICE GINSBURG Same question
MR VERRILLI Yes I mean its just
not there I mean look at what this Courts
cases said This Courts cases didnt say
anything like that
The -- the -- the governments briefs
to this Court didnt say anything like that
When this Court has looked back on the law in
Verlinden and in Samantar it hadnt said
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anything like that It said the standard was a
common law standard of virtually absolute
immunity
And thats in fact how the Tate
Letter describes it too And then as a process
matter -shy
JUSTICE BREYER Okay I got it
MR VERRILLI -- my friends on the
other side have made this argument that well
our position would also require you to go back
to the process of the State Department making
an ad hoc case-by-case determination but
thats wrong too
And thats clear on the face of the
statute that its wrong And the reason -- and
-- and thats right in Section 288 This
creates an entirely different mechanism
What the -- what the IOIA says is that
-- that the President shall have the authority
under executive order once Congress has
enacted a statute to grant an international
organization the privileges and immunities
And if you look at the face of the
statute its obvious that they are granted on
a categorical basis in gross by an executive
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order not on a case-by-case basis by the State
Department when -- when a lawsuit is -- or when
a -- when a lawsuit is filed
And then similarly in terms of the
Presidents authority as to an executive order
to reduce or eliminate the -- the immunity of
an international organization that -- its -shy
again its completely different than the
situation that -- than the common law process
at work So obviously Congress made a
judgment that it was going to put a different
structure and system in place
And the fact that Congress did that I
do say -- I do think quite clearly presupposes
that theres a -- the existence of a
substantive standard being prescribed And the
substantive standard as I said is virtually
absolute immunity
And then in terms of the structural
indicators in the statutory text going back to
a question you asked Justice Sotomayor I
really think the most telling one to -- to
show you I think why my friends on the other
sides case is completely anachronistic and
were correct -- is Section 288f which you can
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find at page 6a of the appendix to the blue
brief
That provision says that the
privileges exemptions and immunities of
international organizations and then of -- of
members and employees et cetera shall be
granted notwithstanding the fact that similar
privileges exemptions and immunities granted
to a foreign government et cetera et cetera
may be conditioned upon the existence of
reciprocity by that foreign government
So right there in the text it
decouples the treatment of international
organizations from the treatment of foreign
states Even in a situation in which the
United States would not grant the full range of
virtually absolute immunity because it wasnt
being -- receiving reciprocal treatment this
statute says the international organization
gets it So -shy
JUSTICE GINSBURG How do you deal
with the argument that we just heard that we
can compare 288a on the one hand which -shy
which keeps the international organizations in
tune with foreign sovereigns and 288 -- was it
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b and d
MR VERRILLI Yes I do think that
the -- the differences break down into two
categories Your Honor There -- some of the
provisions do prescribe fixed standards
Thats true But those fixed standards as we
explained in our brief or at least tried to
are always situations in which the IOIA is
conferring a narrower set of immunities on -shy
on diplomats and individuals than the common
law would have at the time
So incorporation of the standard in
the way this 288a(b) did wouldnt accomplish
the objective there because there was -- they
were quite consciously trying to narrow the
overall scope of immunities and not give the
individuals who worked at these organizations
the same full treatment that diplomats got who
-- from foreign states
Now the second subcategory are the
provisions where the -- the statute says that
their -- the treatment shall be the same But
theres two things about that that are
significant
One is it says they shall be the same
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as under another statutory provision And as
we said we think thats vitally important
here We think its quite clear that in
addition to Justice Breyers points about the
reference canon that the reference canon
applies when one statute incorporates another
It doesnt apply when one statute incorporates
the common law And here they were
incorporating statutes
And if you look at those provisions
anyway theyre basically just instructions to
the executive branch when do you fingerprint
the people when theyre coming in What do you
do about that -- this detail or that detail
They dont go to the heart of the
matter at all And the heart of the matter
here is the immunity being conferred on these
international organizations
I just want to make a point about that
and then if I could talk about the
consequences that will ensue I think if we go
down the path that my friends on the other side
are suggesting
I think this is a critical point I
just want to make sure its clear Another
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reason why you shouldnt draw this equivalence
-- and it cant be that Congress really
intended to draw an equivalence between foreign
states and international organizations such
that they would just move in tandem no matter
what -- is that immunity is granted for
different reasons
The reason you give an international
organization immunity is a functional reason
not a status reason Its not about according
the appropriate respect to the sovereigns
because international organizations arent
sovereigns Theyre separate juridical
persons And whats quite clear -- its clear
from the U -- the San Francisco report on the
foundation of the UN its clear from the
Senate report in 1945 its clear from all the
commentators that we discussed in our brief
its clear from the Restatement of Foreign
Relations which weve cited in our brief that
you grant immunity to international
organizations so that they can carry out their
functions effectively And -- and just take -shy
let me take a minute and kind of elaborate on
that because I think its critical
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Remember these are -shy
CHIEF JUSTICE ROBERTS If you dont
mind Im afraid Im about five minutes behind
you here but going -- going back to your point
on 288f you said its there theyre decoupling
the international organizations and the foreign
sovereigns But as I go back and read it
its simply because the -- the foreign
sovereigns have the capability to use
reciprocity and the foreign -- and the
multi-country organizations do not
I dont -- I mean thats the
difference theyre drawing there not something
between the scope of the actual immunities
MR VERRILLI Well I -- well the
way I read it Mr Chief Justice is what -shy
what theyre doing there is saying even in a
situation in which the United States concludes
that it wont afford a foreign sovereign the
full virtually absolute immunity because of
reciprocity in other words were not getting
it back from them even in that situation an
international organization of -- where those
sovereigns are members will still receive the
full level of immunity
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And so I think what that tells us is
that what Congress was trying to do in this
statute overall was prescribe a fixed
substantive standard not a floating standard
where the two things move in tandem So -- and
I -- I do think it supports that
And if I could just go back to the
functional point remember these are
collective bodies and members come together
they make -- they -- they take resources from
each of their own countries They put them
into these organizations They make collective
decisions about how to deploy those resources
And the point of the immunity here is
so that the courts of any country but
especially the host country which for the most
important organizations are going to be here in
the United States cant override the
collective judgments that they make about how
their resources would be deployed and what
conditions they ought to impose et cetera by
the intervention of domestic law in US courts
and cant redirect the funds that are put into
these organizations to pay massive class action
tort judgments because of course the member
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countries are contributing this money because
they believe its going to be put to the use
that the -- for example the development bank
the development bank decides it should be put
to not to pay massive tort judgments
And I think one place you see this
very clearly if you look at the report of the
San Francisco conference about the founding of
the UN the State Departments -shy
Departments response coming -- report coming
out of that conference specifically says this
It says of course the United Nations cant be
subject to the jurisdiction of any one state or
its courts
And its for exactly this reason And
the same thing is true generally Thats why
you give it not for functional reasons -- I
mean excuse me not for reasons of status but
for functional reasons
And I think a key -- another key
reason why you shouldnt be thinking about this
as a standard that evolves evolves now and
over time is that those functional reasons
dont evolve now and over time
CHIEF JUSTICE ROBERTS Well what
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about the point that most of the concerns you
have are going to be dealt with by the
requirement of a nexus to activity in the
United States as opposed to simply abroad
where the projects are funded
MR VERRILLI Yes I was gratified
to hear the United States say that but -- and
-- but I could just -- Ill answer Your Honors
question directly but I want to broaden it out
a little bit because I think what essentially
the United States is saying here is look the
statute leaves one with no choice but to apply
restrictive principles of immunity Youve got
to jump off that cliff but dont worry it
will be a soft landing because the FSIA will
take care of a lot of these problems
And I guess what I would say about
that is in the unlikely event you dont agree
with me I -shy
(Laughter)
MR VERRILLI -- I hope theyre
right But theres no guarantee that theyre
right
JUSTICE BREYER Are the -- are the
lending decisions which may be fairly detailed
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and may include dozens of conditions made
within the United States
MR VERRILLI Well yes I think
thats a big part of the problem and -shy
JUSTICE BREYER Is there -- are there
lawsuits that could say that there was
negligence in determining in a different
country who the persons were or the conditions
under which the money would be spent Is that
an American lawsuit saying what youve done
here is commit the act of negligence or failure
to be a fiduciary here
MR VERRILLI Thats this lawsuit
Thats this lawsuit Justice Breyer Thats
exactly what theyre alleging
CHIEF JUSTICE ROBERTS Well but I
mean is that consistent with our opinion in
the OBB case which I think -- if the complaint
is based the gravamen of the complaint not
specific steps along the way and that was the
issue we dealt with in that case
And I appreciate the fact that its
you know to some extent dependent on the facts
and particular allegations but it would seem
to me to require a lot more than simply the
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specific decisions I think where -- wheres
the gravamen or gravamen however you say it
with whats going on here
MR VERRILLI Well we would
certainly say its India of course
CHIEF JUSTICE ROBERTS Yeah
MR VERRILLI And if -- if we have to
defend ourselves on that basis we will But I
-- but I -- I think it -- it understates the
real concrete risk here And what Id like to
do to illustrate that if I could is first
talk about the organizations that are going to
be exposed in a way that they wouldnt be under
the law
And as Justice Breyer indicated
earlier its important to remember this has
been the law in the DC Circuit for decades
and theres -- and people have ordered their
affairs based on the assumption that there was
virtually absolute immunity
But with respect -- but with respect
to the consequences and the groups affected and
then the types of effects With respect to the
groups affected youve got entities like us
the multilateral development banks And
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Justice Breyers identified many of them
Now the -- the main ones are here
here in Washington DC and theyre making
their decisions here and I think critically
too there are billions of dollars of assets
here
Now were going to make the OBB
argument for sure and I hope we win if we have
to make the argument I hope we win But who
knows how courts are going to come out on that
issue
Were going to have a lot of fighting
about that There are probably going to be
matters of degree Theres certainly going to
be significant disincentives arising out of
that uncertainty
Theres a whole another group of
entities that unlike the banks at least have
articles of agreement where we can try and fall
back on those for alternative arguments of
immunity where their immunity depends entirely
on the statutory grant the International
Committee of the Red Cross the World Health
Organization the fund to fight -- the global
fund to fight AIDS and tuberculosis and
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malaria
They are all entirely dependent on the
IOIA for their immunities and those immunities
are drastically different after this And then
we do have the issue I think with some
organizations that we may even actually now be
out of our -- out of compliance with our treaty
commitments
Now whats going to happen Heres
what I think is going to happen and I think
this lawsuit helps you see it
Now the way -- the basis of this
lawsuit is the following IFC when it loans
money here its loaning money in -- in parts
of the world where private capital wont go
unless we go in there
And very often they have un-developed
legal systems and they certainly dont have
robust environmental protections or labor
protections So what the IFC has done is lien
into those put those kinds of environmental
standards and labor standards into its
agreements saying you want this money to do
this development project these are the
standards that youve got to live up to
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And -- and this lawsuit is that -shy
that the entity that we loan this money to
didnt live up to the standards and its our
fault And so were being sued here
Well its going to create -- if that
kind of a suit can go forward and hopefully it
wont be able to Mr Chief Justice but if it
can its certainly going to create an
extraordinary disincentive for organizations
like ours to lien into those kinds of standards
because were going to be hoist by our own
petard
Now weve also got a robust internal
accountability mechanism where if people think
something has gone wrong on one of our
projects they can come to us and they can say
-- they can say look theres a problem here
And they -- and we investigate We take
internal remedial measures if we find theres a
problem
Well you know the factual basis for
the lawsuit is the report of our internal
accountability process
So if they can just grab that and take
it into court and make it the basis for a class
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action tort lawsuit in which they can make a
claim for all this money its going to create
a powerful disincentive for us not to engage in
that kind of self-policing activity
And I would submit that you know
even if things ultimately work themselves out
under the FSIA and I hope they -- I hope we
dont have to deal with that but even if we
do its going to take a very long time There
are going to be a lot of difficult cases at the
margin There are going to be very serious
disincentives immediately
And conversely you know were a big
fat target here These organizations have lots
of money And of course foreign plaintiffs
want to sue here They can bring a class
action They get liberal discovery They can
get punitive damages They get all of these
advantages by suing here
So instead of suing the person that
actually injured them the power plant in
India they come here and sue us
And I really think what you are going
to see here is that this is just going to
become another version of the sorts of
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foreign-cubed lawsuits that the Court has been
concerned about under the Alien Tort Statute
where the international organization is just
going to be subbed in for the foreign defendant
and its going to be subbed in in a situation
where were going to have a very significant
pile of money
And if I could just close with this
thought -- Im just going to pick up on Justice
Breyers thought -- the law in the District of
Columbia where virtually all these
organizations have been housed are
headquartered has been virtually absent
immunity under DC circuit law for decades
Thats the standard everybody has been
operating on
Nobodys suggested that anything has
gone wrong under this statute that there are
any deleterious policy consequences that the
interests of the United States are adversely
affected in any way In fact if you look at
the amicus brief from the former Secretaries of
Treasury and State they think that the policy
of the government arguing now is going to
disrupt the United States ability to function
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effectively with these organizations
It has all been fine And -- but
theyre asking you essentially to repeat a
metaphor to jump off a cliff And hopefully
it will be a soft landing But we dont know
that And it could easily result in a lot of
disruption to the good work that these
organizations do
And I guess what I would suggest is
that if thats going to happen it ought to
happen through legislation Congress can look
at this Congress can change the law if it
wants to But this has been the law for a very
long time There is no evidence that it has
done anything other than work well
And therefore I think the Court
should affirm the DC Circuit Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Four minutes Mr Fisher
REBUTTAL ARGUMENT OF JEFFREY L FISHER
ON BEHALF OF THE PETITIONERS
MR FISHER Thank you Id like to
make four points and Id like to start with the
text of the statute itself and simply say when
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Mr Verrilli talks about the Neder Doctrine and
the Common Law Doctrine that you look at the
term a terms meaning at the time of
enactment Hes mixing apples and oranges
And I think all the citations in our
reply brief should make it absolutely clear
that theres a doctrine on the one hand that
talks about incorporating a body of law and
theres a doctrine on the other hand about
giving meaning to a specific term Were in
the former camp here
And as to the point about whether the
common law was evolving at the time two
things Well stand on the papers as to the
fact that it was somewhat in flux
But the more important point is even
if it werent in flux it wouldnt matter one
wit because the other side is making a
sweeping proposition which is any general
reference to common law is fixed in time
That would disrupt any number of
federal statutory regimes from the Federal
Tort Claims Act enacted the year after this
statute the Equal Access to Justice Act the
federal governments piracy statute Federal
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Rule of Evidence 501 I could go on and on
with federal statutory regimes that reference
the common law in exactly the same way the
statute does here
The Civil Rights Act of 1866 if you
want one more All of those would come out the
other way from this Courts jurisprudence and
from all the understanding if the other side is
right about statutory interpretation
So I think the only thing the other
side has is they have a bunch of policy points
to make for this Court
Now we dont think they should
control but let me answer them So first as
to our treaty obligations So one about at the
moment of enactment My friend kept saying
that there were various agreements in place
that required virtually absolute immunity
None of the agreements use those
words Instead what those agreements said is
that certain organizations were entitled to
immunity to allow them to perform their
necessary functions Thats a very different
thing than absolute immunity
And its very different because none
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of the organizations involved were performing
Justice Sotomayor commercial activities that
were essential to their core functions not the
UN not any of the other organizations
So we werent in breach of any treaty
rights And if you have any doubt on that I
would urge you to look to the federal
governments position then and now Its not
just a brief filed in this Court
It is the position that four different
Presidential Administrations have taken The
Carter Administration right after the FSIA was
passed the George H W Bush Administration
the Clinton Administration and now the Trump
Administration have all consistently held that
the FSIA rules are incorporated into the FSIA
Next on the floodgates concern I
explained earlier and I hope you will think
about the fact that while the core activities
of the IFC might be commercial activity not
all of the IFCs activities are and certainly
not all the activities of international
organizations are
But let me add one more thing My
friend talked about big lawsuits of ruinous
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liability Well theres two very easy ways to
control that
One is to the extent any claims are
on contracts they can write their own
contracts and negotiate their own contracts
As the Solicitor General points out they can
even deal with third-party beneficiaries in
their contracts if they choose
Secondly as to tort claims they can
and in fact commonly do indemnify themselves
against tort lawsuits In this very case
their agreement indemnifies them against any
judgment and all legal fees
So these organizations have every
manner of method to deal with any potential
liability And in fact they are which sort
of belies the suggestion that they think
theyre absolutely immune from lawsuit
Finally let me say one thing about
the so-called foreign cubed problem or the
facts of this case Now obviously we think
that we would satisfy the gravamen test They
have never made that argument And if they
want to make it we can -- we can have that
conversation in the lower courts
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But bear in mind what youre being
asked to do in this case is to announce a
categorical rule for all cases dealing with
international organizations
So my friend in the Solicitor
Generals Office talked about just regular tort
slip and fall cases and the like in the United
States Let me give you one other thing to
think about
Some international organizations
actually do their work in the United States
The border cooperation -- the Border
Environmental Cooperation Commission does
wastewater treatment plants in Texas and
California
I cant think of any reason why they
would be immune from those infrastructure
projects in a way that no private business or
public government would be
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1206 pm the case
was submitted)
Heritage Reporting Corporation
69Official - Subject to Review
1 392151723 4122 4223 433
452 462 4718 4817 5220 57
allegations [1] 5624
alleging [1] 5615 B
1108 [2] 115 32 20 651824 allow [3] 2321 246 6522 back [22] 44 61420 10513 11
1206 [1] 6822 Absolutely [3] 3113 646 6718 allowed [1] 2610 17 154422 172425 1911 226
1602 [1] 1412 Access [1] 6424 allows [3] 231220 242 4425 4524 4610 4720 5247
17-1011 [1] 34 accident [1] 2615 almost [2] 719 253 22 537 5820
1866 [1] 655 accompanying [1] 4111 already [4] 311521 323 4118 backwards [4] 514 23161724
1904 [2] 614 1725 accomplish [1] 4913 alternative [1] 5820 bad [1] 1416
1934 [1] 49 according [2] 1817 5110 Altmann [1] 1318 bank [13] 719 81822 98 2716
1945 [17] 1013 142025 151213 accountability [2] 601423 amended [1] 1615 283455 3022 324 5434
15 1617 331 3522 36710 374 accumulated [1] 3514 American [3] 112 3721 5610 banks [9] 88910 271415 2911
388 3911 4216 437 5117 across [1] 1025 amicus [4] 122 27 2011 6222 3021 5725 5818
1946 [1] 3914 Act [15] 320 6319 1412 1724 20 amounts [1] 2411 bare [1] 1524
1952 [4] 3618 3921 4012 415 422 212 301518 347 5611 64 anachronistic [3] 425 4415 47 bark [2] 405 4315
1970 [6] 3919 4013 415101520 2324 655 24 barred [2] 2689
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1994 [1] 115 activities [11] 8517 195 2717 another [13] 323 144 167 1923 5719
2 2910 3122 4017 662192122 2122 378 3823 501625 5420 basic [1] 3413
20 [2] 28 2622
20-some [1] 2624
2018 [1] 111
21 [1] 3421
27 [1] 3717
288 [4] 2213 331 4616 4825
288a [3] 1915 2018 4823
288a(b [4] 2024 2111 2215 49
13
288a(d [1] 2110
288b [1] 343
288d [1] 1916
288d(a [1] 2110
288f [2] 4725 525
activity [23] 791820 81015 94
69 2551718 27182325 2914
17 3010 31211 322 553 614
6620
actors [1] 2912
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11
ad [1] 4612
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Administration [4] 66121314
5817 6125
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6
apply [7] 1010 161 1919 2215
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2125
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8 6322
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3 15 2521 507 5512 between [2] 513 5214
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33 [1] 211 adopting [1] 47 area [2] 171618 billions [1] 585
4 adoption [1] 1610
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bit [2] 363 5510
blue [1] 481
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5 5 [1] 1612
501 [1] 651
527 [1] 3420
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7 5111 625 1410 1914 2010
2213 2314 337 3521 3710 46
9 4822 5889 6321 6723
arguments [2] 416 5820
body [4] 32325 425 648
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both [1] 2211
bounds [1] 1714
branch [11] 1024 1481318 151
6 affected [3] 572224 6221 arising [1] 5815 161924 398 4015 5012
63 [1] 214 affirm [1] 6317 Armed [1] 63 breach [1] 665
6a [1] 481 afford [2] 296 5219 articles [1] 5819 break [1] 493
8 afraid [2] 1625 523
Africa [1] 3023
Asia [1] 3023
Asian [1] 284
Bretten [2] 4325 441
BREYER [40] 43 513162022 6
80-some [1] 2623 African [1] 285 assets [1] 585 16 717 817 912 108 1117 12
A agencies [1] 3819
agree [3] 2018 253 5518
Assistant [1] 120
Association [1] 286
22 133 147 157 238111923
24259151821 2712 282914 am [2] 115 32
agreed [1] 294 assume [3] 1221 1711 222 301619 3147 4420 4515 467 ability [4] 12121315 6225
agreement [4] 282325 5819 67 assuming [1] 277 5524 56514 5715 able [7] 1023 2423 2513 264 32
12 assumption [2] 1223 5719 Breyers [4] 164 504 581 6210 20 458 607
agreements [5] 2821 5923 65 assurance [1] 318 brief [16] 618 115 364 377918 above-entitled [1] 113
171920 assure [3] 30619 4218 41121314 482 497 511820 abroad [1] 554
agricultural [1] 84 attenuated [1] 2523 6222 646 669 absent [1] 6213
AIDS [1] 5825 authority [7] 212425 2241114 briefs [1] 4522 absolute [33] 1922 201 22310
AL [1] 13 4619 475 bring [1] 6116 20 2610 282025 3215 331215
Alan [1] 1624 available [3] 11810 412 broaden [1] 559 21 34117 3524 361622 383
Alien [1] 622 BUDHA [1] 13
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70Official - Subject to Review
building [1] 2613
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Bush [1] 6613
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Carcieri [1] 67
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Career [1] 63
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Case [35] 34 4189 548 6236
88161718 9162025 14116
191 2117 2511 34182122 36
2 404 4724 561821 671121
6822122
case-by-case [2] 4612 471
cases [13] 413 61 92 158 1824
269 3415 4424 452020 6110
6837
categorical [2] 4625 683
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Certainly [7] 1313 402 575 58
14 5918 608 6621
cetera [4] 48699 5321
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changes [1] 46
characterization [2] 367 4512
charter [6] 2816 311920 3910
1125
Chase [1] 618
CHIEF [15] 339 20713 3349 34
24 52216 5425 5616 576 607
6318 6820
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Circuit [4] 1814 5717 6214 63
17
circumstances [1] 3224
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Civil [1] 655
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2521 2716 4021 4121 4614 50
325 511414161719 646
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19 4417 539 5810 6016 6122
656
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541010
commentators [1] 5118
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1015 9469 2551618 27317
182325 291417 3010 312 32
2 401622 66220
Commission [1] 6813
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4312 598
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11
Committee [1] 5823
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67 3314 3515 439 462 479 49
10 508 6421320 653
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17
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Congress [36] 1023 1125 1224
25 1317 1415 174710111217
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532 631112
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6219
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Contoe [1] 1624
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19 40713 417
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Cross [1] 5823
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3 6317
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3022 4025 4821 618 67715
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4
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Department [15] 121 56 917 18
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402 4546 4611 472
Departments [2] 54910
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56 2911 302124 5434 5725
5924
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181 2111 3818 4020 4416 46
17 47811 517 567 594 6523
25 6610
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District [1] 6210
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9
dog [2] 405 4315
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17
dollars [1] 585
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22
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E each [3] 372324 5311
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ELLIS [31] 120 26 2091013 21
21 2212 23921 2447141719
23 2621 27481013 2881115
294820 3018 313613 328
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89 412325 42817 4621 6423
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644 6516
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Equal [1] 6424
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5316
ESQ [6] 11824 2361013
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10 265 2714141415 361218
427 4815 521722 596 6168
6416 677
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Ex [1] 1514
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4211 5415 5615 653
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3725 543
examples [2] 1025 3720
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349
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151161924 3410 398 4014
416 462025 475 5012
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F face [2] 461423
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13 487 5622 6221 6415 6619
671016
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2525 652 667
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Finally [1] 6719
FINANCE [2] 16 35
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481 6019
fine [1] 632
fingerprint [1] 5012
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1724 2324 351 5711 6514
FISHER [23] 118 2313 3679 5
12151721 10418 1381013 16
31321 173 4425 63202123
fisheries [1] 81
fit [2] 106 1520
five [3] 818 389 523
fixed [8] 212 2219 331216 495
6 533 6420
floating [1] 534
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floodgates [3] 267 3116 6617
flux [6] 189 3523 361520 6415
17
focus [1] 3213
following [1] 5913
foolish [1] 1816
foreign [39] 3131819 7141518
812 97 1216 19720 219 234
9 2512 3219 3324 391622 42
2910 4320 489111425 4919
51319 52681019 6115 624
6720
foreign-cubed [1] 621
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265 32314 606
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Four [3] 632024 6610
Francisco [2] 5115 548
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friend [6] 2016 2120 254 6516
6625 685
friends [7] 344 3920 4414 4510
468 4723 5022
front [2] 426 444
frozen [1] 2117
FSIA [10] 1411 15423 2718 297
5515 617 66121616
fulfill [3] 3320 422125
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23
functions [3] 5123 6523 663
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funded [1] 555
funds [2] 196 5323
further [1] 332
future [1] 102
G gave [5] 517 124 349 382 4514
General [7] 120 322 113 1716
1811 6419 676
Generals [1] 686
generally [1] 5416
George [1] 6613
gets [1] 4820
getting [3] 923 148 5221
GINSBURG [5] 326 3520 4513
17 4821
Ginsburgs [1] 436
give [24] 56 61722 824 1018 11
21 1221115 131 15171920
3016 31814 3719 448 45415
4916 518 5417 688
given [10] 41 15122 175 1914
2211 3115 349 361
gives [4] 31117 812 1116
giving [1] 6410
Glad [1] 2423
global [1] 5824
gloss [1] 4413
goal [1] 1411
Gorsuch [6] 410 163142225
1813
got [9] 510 2317 289 467 4918
5513 5724 5925 6013
gotten [1] 3715
government [7] 127 318 3811
48911 6224 6819
governments [4] 92 4522 6425
668
governmental [1] 123
governments [11] 31319 812 9
1 12110 219 23410 2720 32
20
governs [1] 3511
grab [1] 6024
granddaddy [1] 4010
grant [8] 2023 2225 2313 246
4621 4816 5121 5822
granted [4] 4624 4878 516
granting [1] 4117
grants [2] 824 302
gratified [1] 556
gravamen [7] 25222425 5619
5722 6722
great [3] 188 2425 4025
gross [1] 4625
group [2] 710 5817
groups [2] 572224
guarantee [1] 5522
guess [6] 922 299 4213 4423
5517 639
H
Heritage Reporting Corporation Sheet 3 disruption - guess
72Official - Subject to Review
half [1] 2810 importing [1] 1419 11 595 56101314 591113 60122 61
hand [3] 4823 6479 impose [1] 5321 itself [7] 716 811 116 2416 372 1 6718
happen [4] 59910 631011 incentives [1] 142 4218 6325 lawsuits [5] 319 566 621 6625
hasten [1] 1424 include [1] 561 J 6711
headquarter [1] 1022 Including [1] 2711 lay [1] 1925
headquartered [4] 1022 2619 inconceivable [2] 43812 JAM [2] 13 34 lead [4] 153410 319
25 6213 incorporate [1] 3518 JEFFREY [5] 118 2313 37 63 least [4] 186 2410 497 5818
headquarters [2] 2615 292 incorporated [6] 325 72 169 33 21 leave [1] 420
Health [1] 5823 14 3423 6616 JONATHAN [3] 120 26 2010 leaves [1] 5512
hear [2] 33 557 incorporates [2] 5067 JR [2] 124 210 led [1] 449
heard [2] 4425 4822 incorporating [2] 509 648 judge [1] 1319 left [1] 2016
heart [2] 501516 incorporation [1] 4912 judgment [2] 4711 6713 legal [2] 5918 6713
heightened [1] 144 increase [1] 226 judgments [3] 531925 545 legislation [3] 813 175 6311
held [2] 309 6615 indeed [4] 427 187 203 Judiciary [2] 619 1724 legislative [1] 1119
helps [1] 5911 indemnifies [1] 6712 July [1] 388 lend [2] 423 2412
hewing [1] 3621 indemnify [1] 6710 jump [2] 5514 634 lending [8] 889101623 2719
historical [4] 393 441318 4512 India [4] 2623 575 6122 juridical [1] 5113 2910 5525
history [4] 316 1119 2119 2818 Indian [2] 47 68 jurisdiction [1] 5413 lends [1] 302
hoc [1] 4612 indicate [1] 3123 jurisprudence [2] 523 657 lens [1] 712
Hoffman [1] 1514 indicated [1] 5715 Justice [96] 121 339 4310 513 less [1] 229
hoist [1] 6011 indicators [1] 4720 162022 616 717 817 912 108 Letter [6] 361919 3921 403 437
hold [1] 3723 individualized [1] 1417 1117 121822 133591112 14 465
Honor [4] 2420 365 4024 494 individuals [3] 419 491017 67 156 1634142225 1812 20 level [3] 3719 387 5225
Honors [1] 558 infer [2] 351616 713 2121 238111923 24259 liability [2] 67116
hope [6] 5521 5889 6177 6618 infrastructure [1] 6817 151821 2617 272691111 28 liberal [1] 6117
hopefully [2] 606 634 initial [1] 4022 2914 2938 301619 3147 32 lien [2] 5920 6010
hornbook [1] 1010 injured [1] 6121 6 33410 34524 3520 3612 40 light [1] 3317
hornbooks [1] 43 injuries [1] 262 1619 42715 4356 4420 4513 limited [1] 1224
host [3] 2025 217 5316 inquiry [1] 358 1517 467 4721 4821 504 522 list [1] 3020
housed [1] 6212 insertion [1] 69 16 5425 5524 5651416 576 little [2] 102 5510
however [1] 572 instance [1] 2220 15 581 607 629 6318 6424 66 live [2] 5925 603
I instead [2] 6120 6520
institutions [2] 81823
2 6820
K loan [3] 820 2924 602
loaning [1] 5914 idea [4] 14816 1618 2618
identified [1] 581
IFC [10] 710 8111919 256 283
323 591320 6620
IFCs [2] 3120 6621
II [1] 446
illustrate [1] 5711
IMF [6] 283 302 37202525 388
immediately [2] 407 6112
immune [4] 215 252 6718 6817
immunities [19] 2025 2216 234
instructions [1] 5011
intended [2] 347 513
Inter-American [1] 284
interest [1] 1114
interests [1] 6220
interfere [1] 3110
internal [3] 60131922
INTERNATIONAL [37] 16 3511
17 422 72224 824 1025 1421
1921 2221 232 251 286 3222
3323 4010 421 4621 477 485
KAGAN [6] 2121 2938 42715
435
keeps [1] 4824
kept [1] 6516
key [2] 542020
kind [5] 825 453 5124 606 614
kinds [5] 716 2618 3820 5921
6010
knowing [1] 101
knows [2] 198 5810
loans [5] 2912131822 5913
lobby [1] 1023
locate [1] 1014
lock [1] 175
long [5] 45 1011 1322 619 63
14
look [32] 61315 724 911 108 13
18 168121416 1713 2021 21
19 2311 2817 311920 351 37
10 4111 4412 45119 4623 50
10 547 5511 6017 6221 6311 3815172121 391213 4118 131924 5018 51481221 526 L 642 667 4622 4848 49916 5214 5933 23 5822 623 6622 68410 labor [2] 591922 looked [4] 44 158 3020 4524
immunity [119] 312171820 419 Interpol [1] 83 landing [2] 5515 635 looking [2] 3523 212425 559 9152125 1024 interpret [1] 1017 language [8] 1017 1518 202 21 looks [3] 3618 3812 4313 11672123 1229911161925 interpretation [2] 3415 659 13 343 359 421215 lot [10] 2017 221 2814 319 446 13120 145141721 15219 16 interpreted [1] 343 last [1] 49 5516 5625 5812 6110 636 1 191922 20124 213925 223 interpreting [2] 619 359 late [1] 4120 lots [2] 420 6114 991922 2337131415 2436 intervention [1] 5322 later [3] 4916 3810 lower [3] 2722 309 6725 101125 259 26510 28152025
297 3025 3121 3251521 33 investigate [1] 6018
inviolable [1] 213
latter [1] 1717
Laughter [4] 172 2318 241 55 M
121522 3411117 3523 36110 involved [2] 149 661 20 made [10] 53 1223 1415 18910
15172224 37121319 3847 39 IOIA [21] 31115 11816 2023 22 law [46] 32425 61121 714 82 3924 469 4710 561 6723
215161722 411822 4223 434 17 2624 331120 3718 3869 1056 131516 1419 151212 mail [1] 3422
920 448 4525 463 47618 48 22 391 411921 4314 4410 46 15 1620 17151618 18567 21 main [1] 582
17 5017 516921 522025 53 18 498 593 14 3314 3515 3619 383 439 malaria [1] 591
14 5513 5720 582121 6214 65 ISMAIL [1] 13 20 4524 462 479 4911 508 53 managing [1] 81
182224 isnt [6] 1618 2513 31910 3711 22 571417 621014 631213 64 manner [1] 6715
important [5] 1324 502 5317 57 4419 281320 653 many [9] 413181818 725 1025
16 6416 isolation [1] 2020 laws [1] 306 2618 322 581
importantly [1] 257 issue [6] 1219 211116 5621 58 lawsuit [14] 1223 15225 4723 margin [1] 6111
Heritage Reporting Corporation Sheet 4 half - margin
73Official - Subject to Review
market [2] 820 2918
massive [2] 5324 545
match [1] 4418
materiality [2] 3423 355
materials [4] 372 426 4413 45
12
matter [7] 113 1716 466 5016
16 515 6417
matters [1] 5814
mean [14] 4111213 64 914 248
251 371 4211 451819 5212
5418 5617
meaning [7] 179 3315 351518
22 64310
means [4] 524 3517 421620
meant [3] 64 223 2910
measure [1] 126
measures [1] 6019
mechanism [2] 4617 6014
member [1] 5325
members [3] 486 5224 539
mentioned [2] 1813 417
mess [1] 453
metaphor [1] 634
metes [1] 1714
method [1] 6715
might [2] 718 6620
mind [2] 523 681
minimum [1] 1524
minute [2] 3722 5124
minutes [2] 523 6320
mission [1] 444
mistake [1] 53
Mister [1] 293
mixed [1] 923
mixing [1] 644
modern [1] 1817
moment [5] 4115 105 3921 65
16
monetary [1] 411
money [14] 41223 820 2413 30
7 541 569 59141423 602 612
15 627
months [1] 389
morning [2] 2017 3116
most [6] 232 257 3316 4722 53
16 551
move [3] 3611 515 535
moving [1] 3623
much [5] 141 2517 3112 395 40
21
multi-country [1] 5211
multilateral [1] 5725
multinational [1] 2911
must [4] 251718 351616
N Nader [2] 341921
narrow [1] 4915
narrower [1] 499
nations [4] 418 397 4011 5412
natural [1] 354
nature [2] 123 2924
necessary [4] 1720 3510 3912
6523
Neder [1] 641
need [7] 1116 306 3124 3268
3712 4318
needed [2] 291 3823
negligence [2] 56711
negotiate [4] 1214 143 2825 67
5
negotiated [3] 115 1220 3914
never [1] 6723
New [1] 2616
next [2] 34 6617
nexus [2] 2517 553
nobody [2] 59 925
Nobodys [1] 6217
non-commercial [1] 85
none [3] 4411 651925
normal [1] 3414
nothing [3] 101 2411 404
notwithstanding [1] 487
Number [6] 242424 2713 3115
4424 6421
numbers [1] 2621
O OAS [4] 113 1221 282224
OBB [3] 2520 5618 587
objective [1] 4914
obligations [5] 332022 409 41
24 6515
obvious [1] 4624
obviously [2] 4710 6721
occurred [2] 2622
occurs [1] 2519
October [1] 111
Office [1] 686
officers [2] 214 2220
official [1] 215
officials [2] 192021
often [1] 5917
Okay [5] 512 2323 24518 467
old [1] 187
once [2] 4315 4620
one [47] 41823 5118 6217 819
1317 14369 1622 173 1868
1113 191218 211116 2424 25
10 273 3013 3118 3618 3812
4014 4313 4722 4823 4925 50
67 54613 5512 6015 64717
65615 6624 67319 688
ones [1] 329
one-way [1] 225
ones [1] 582
only [8] 423 62 2116 225 2810
296 417 6510
open [1] 3117
opening [1] 267
operating [1] 6216
opinion [4] 69 1624 3424 5617
opponents [2] 321 61
opportunity [1] 143
opposed [1] 554
opposite [3] 417 1345
oral [7] 114 2259 37 2010 337
oranges [1] 644
order [6] 292 306 3823 4620 47
15
ordered [1] 5718
Ordinarily [1] 296
ordinary [2] 610 117
Organization [16] 1124 1421 19
321 372021 4020 4118 4622
477 4819 519 5223 5824 623
organizations [1] 2614
organizations [56] 31218 422 7
2225 824 101421 1111422
214 2221 232 2518 261923
281319 3120 3222 3323 3711
4010 4219 4427 4851424 49
17 5018 5141222 52611 53
121724 5712 596 609 6114
6212 6318 6521 661423 67
14 68410
original [2] 1118 203
originally [1] 1616
other [41] 421 6225 77 8621
23 95 13125 141019 1715 18
21 1924 2113 224 23312 24
16 2912 3212 3446 3622 39
20 441114 4511 469 4723 50
22 5221 6315 64918 657810
664 688
others [2] 1221 324
otherwise [2] 3517 408
ought [5] 813 161 3624 5321
6310
ourselves [1] 578
out [19] 6810 1413 2416 2813
4089 4325 449 5122 5411 55
9 581015 5977 616 656 676
over [7] 1620 3024 3525 4319
21 542324
overall [2] 4916 533
override [1] 5318
own [10] 615 12131317 1518
2815 5311 6011 6745
P pm [1] 6822
package [1] 411
PAGE [5] 22 3420 3717 4113
481
papers [1] 6414
part [5] 1219 1411 2122 4322
564
Parte [1] 1514
particular [6] 916 178 341820
362 5624
particularly [1] 2118
partly [1] 1120
parts [1] 5914
party [5] 2724 2923 3011113
passage [2] 416 4314
passed [5] 525 813 1316 452
6613
past [3] 41215 92
path [1] 5022
pathway [1] 156
pathways [3] 119 1721 181
pay [2] 5324 545
people [4] 369 5013 5718 6014
percentage [1] 2812
perfect [1] 183
perform [1] 6522
performing [1] 661
perhaps [1] 3110
permissible [2] 623 1321
person [3] 2320 4316 6120
persons [2] 5114 568
pertinent [1] 1618
Peru [1] 1514
petard [1] 6012
Petitioners [10] 141923 24814
38 201219 6322
phrase [1] 2020
pick [4] 164 2015 376 629
picks [1] 281
pile [1] 627
piracy [1] 6425
place [3] 4712 546 6517
plain [2] 314 1913
plaintiff [1] 311
plaintiffs [1] 6115
plant [1] 6121
plants [1] 6814
please [3] 310 2014 3310
point [17] 1718 281222 297 34
19 35111 377 4023 501924
524 53814 551 641216
points [8] 166 3115 3945 504
6324 6511 676
policies [1] 142
policy [9] 1079151516 1418
621923 6511
political [1] 1418
politically [1] 1423
position [5] 1525 1822 4610 66
810
possibly [2] 38510
potential [1] 6715
power [2] 249 6121
powerful [1] 613
practical [2] 101920
practice [1] 296
precisely [1] 3718
prescribe [2] 495 533
prescribed [1] 4716
prescribes [1] 3311
present [1] 324
presented [1] 2515
President [9] 55 1225 136 225
24 2313 243 3410 4619
Presidents [3] 1212 2214 475
presidential [4] 2123 22411 66
11
pressure [1] 446
presumptively [1] 252
presupposes [1] 4714
pretty [1] 3022
principal [1] 1113
principle [1] 614
principles [1] 5513
Heritage Reporting Corporation Sheet 5 market - principles
74Official - Subject to Review
prior [1] 65 10 394 441225 4722 512 61 397 4510 5111 57212123 seen [1] 1520
private [12] 81421 2724 2912 23 respectfully [3] 366 373 4510 self-policing [1] 614
182223 3011113 5915 6818 reams [1] 61 Respondent [4] 1725 211 338 Senate [6] 123 41111516 4224
privileges [4] 233 4622 4848 reason [17] 109 1891012 1910 Respondents [1] 269 5117
probably [3] 815 93 5813 23 2212 3222 3319 4615 511 Respondents [2] 2112 236 sense [5] 183 221 247 3317 38
problem [8] 911 137 1420 3711 8910 541521 6816 response [3] 918 4024 5410 6
564 601720 6720 reasons [7] 1621 173 517 5417 responses [1] 2419 sensitivity [1] 4025
problems [2] 149 5516 181923 responsive [1] 1115 separate [2] 818 5113
process [4] 46511 479 6023 rebuild [1] 444 rest [1] 206 serious [3] 2511 263 6111
procure [1] 144 REBUTTAL [3] 212 206 6321 Restatement [1] 5119 set [3] 218 441 499
profit [1] 820 receive [3] 2222 2310 5224 restrictions [1] 304 sets [1] 212
programs [1] 825 received [1] 234 restrictive [8] 117 265 297 36 setting [1] 176
project [1] 5924 receiving [1] 4818 1124 3713 3922 5513 settled [2] 3315 3515
projects [4] 821 555 6016 6818 reciprocal [1] 4818 result [1] 636 settles [1] 2021
promised [1] 448 reciprocity [3] 4811 521021 retroactive [2] 131821 several [1] 211
property [1] 3821 reconsider [1] 3625 retroactivity [1] 1319 shall [4] 4619 486 492225
proposition [2] 4318 6419 Red [1] 5823 retrofit [1] 4418 shouldnt [4] 91620 511 5421
protection [1] 2624 redirect [1] 5323 reverse [1] 333 show [1] 4723
protections [2] 591920 redress [1] 3218 Rights [2] 655 666 shows [1] 231
prove [1] 3825 reduce [2] 3410 476 risk [1] 5710 side [20] 62625 8619 95 131
provide [9] 232 2923 3321 37 refer [3] 415 1619 2114 ROBERTS [9] 33 207 334 522 25 1419 1924 3215 344 3920
19 387 39111 4222 433 reference [10] 159 165 1719 18 5425 5616 576 6318 6820 4414 4511 469 5022 6418 65
provided [2] 2216 3817 11 1911 219 5055 6420 652 robust [2] 5919 6013 811
provides [2] 2024 3822 referenced [2] 611 185 roll [1] 226 sides [3] 1410 1821 4724
providing [3] 3416 38316 referential [1] 2113 roll-back [1] 2124 signed [1] 3910
provision [16] 3141723 116 17 referred [1] 2120 ruinous [1] 6625 significant [3] 4924 5815 626
6 2123 222614 2311219 28 refers [3] 323 167 2312 rule [13] 322 1425 1511 1757 similar [1] 487
16 4225 483 501 regard [2] 2567 20 1925 212 2610 351213 65 similarly [1] 474
provisions [8] 1320 212814 34 regardless [1] 2514 1 683 simply [4] 528 554 5625 6325
7 49521 5010 regiment [1] 1222 rules [4] 1919 2219 3414 6616 single [1] 4316
public [2] 825 6819 regimes [2] 6422 652 Russians [1] 4421 sitting [1] 1813
punitive [1] 6118 regular [1] 686 S situation [10] 611 1323 161 18
purpose [9] 46 101112161619 regulating [1] 813 4 457 479 4815 521822 625
111820 3318 regulation [1] 725 safer [1] 102 situations [1] 498
put [10] 712 122 292 4415 4711 regulations [1] 305 Samantar [1] 4525 slip [2] 2613 687
531123 5424 5921 Rehnquist [1] 3425 same [22] 3121618 721 1299 so-called [1] 6720
putting [1] 4422 reintroduce [1] 1420 11 1559 1919 3324 3916 422 soft [2] 5515 635
Q rejected [1] 624
related [1] 377
10 433 451317 49182225 54
16 653 solely [1] 354
Solicitor [4] 120 113 676 685 quasi-sovereign [1] 3018 Relations [1] 5120 San [2] 5115 548 sometimes [6] 1113 166 1816 question [13] 71112 107 1122 relief [2] 41112 satisfy [1] 6722 194 4545 1425 164 1822 2421 2514 34 remain [1] 1311 save [1] 205 somewhat [1] 6415 13 4517 4721 559 remains [1] 137 saying [11] 98 292024 3811 40 somewhere [1] 2622
questions [6] 78 109 1317 18 remedial [1] 6019 15 4317 5217 5511 5610 5923 sorry [2] 1921 2319 17 333 436 remedy [2] 62223 6516 sort [10] 1323 26811 27222325
quintessential [1] 2611 Remember [7] 1112 128 1411 says [17] 621 95 176 191820 2925 30811 6716 quite [9] 45 111519 299 4120 4324 521 538 5716 357 3717 4116 421224 4618 sorts [2] 2717 6125 4714 4915 503 5114 remotely [1] 4317 48319 492125 541112 SOTOMAYOR [16] 1218 1359
quo [2] 4513 removing [1] 3025 scholars [1] 4114 1112 146 2617 2726911 345 quotes [1] 4115 renovated [1] 2613 scientific [1] 83 401619 4721 662
R repeat [1] 633 scope [3] 3814 4916 5214 south [1] 3211
raised [1] 1219
range [2] 2622 4816
ratchet [1] 225
rates [1] 820
rather [4] 92121 205 267
ratification [2] 4013 4112
ratified [1] 407
ratify [2] 3918 416
read [3] 372 52716
reading [2] 2019 354
real [1] 5710
really [12] 54 9202224 2020 37
reply [2] 618 646
report [10] 123 41111516 4224
511517 54710 6022
request [1] 3613
require [3] 2819 4610 5625
required [2] 1819 6518
requirement [2] 303 553
research [2] 844
reserving [1] 1912
residents [1] 3216
resolution [1] 82
resources [3] 53101320
respect [10] 215 372424 3813
second [8] 52 72 103 168 18
12 2325 3510 4920
Secondly [1] 679
Secretaries [1] 6222
section [17] 141212 1612 1915
16 201824 21101011 221315
2410 331 343 4616 4725
sector [2] 81421
see [10] 9142223 2118 3221 39
6 451 546 5911 6124
seeking [1] 3217
seem [1] 5624
seems [2] 102 2416
Sovereign [11] 320 9152125 19
6 2719 3041525 4320 5219
sovereigns [8] 197 302 4825
511113 527924
special [6] 88 1024 115 1219
371415
specialized [1] 3819
specific [6] 1619 176 1811 56
20 571 6410
specifically [1] 5411
spending [1] 91
spent [1] 569
stages [1] 4022
Heritage Reporting Corporation Sheet 6 prior - stages
75Official - Subject to Review
stand [1] 6414
standard [20] 33111625 3411
24 361113162123 4318 4612
471617 4912 5344 5422 62
15
standards [7] 4956 59222225
60310
Stanford [1] 118
start [5] 521 15711 3412 6324
started [1] 1522
Starting [2] 321 78
State [23] 55 7141518 9716 18
25 198 2114 2823 3525 3610
14 3922 402 4422 4545 4611
471 54913 6223
statement [1] 378
STATES [39] 111522 27 418
11312 2011 25219 2620 271
3111 3324 3652021 378917
21 3816 391618 42210 4815
16 4919 514 5218 5318 5547
11 562 6220 68811
States [1] 6225
status [5] 3523 4513 5110 54
18
statute [32] 47 525 74 101212
129 167791111 35616 3715
382823 46152124 4819 49
21 5067 533 5512 62218 63
25 642425 654
statutes [2] 3716 509
statutory [13] 323 51922 176
3317 3415 359 4720 501 58
22 6422 6529
Steamboat [2] 61724
step [1] 3510
steps [2] 723 5620
still [2] 137 5224
stilted [1] 1815
stood [2] 367 374
streets [1] 2616
stronger [1] 2517
structural [1] 4719
structure [4] 315 2022 2122 47
12
stuck [1] 910
stuff [1] 75
subbed [2] 6245
subcategory [1] 4920
subject [5] 12111314 3223 54
13
submit [3] 1410 155 615
submitted [2] 682123
subsection [5] 19181820 2022
subsequently [1] 1615
substantiate [1] 3810
substantive [4] 3325 471617 53
4
suddenly [1] 3025
sue [3] 3211 611622
sued [4] 232022 3220 604
suggest [3] 344 366 639
suggested [1] 6217
suggesting [1] 5023
suggestion [2] 364 6717
suggestions [1] 1417
suing [2] 611920
suit [18] 312 41 524 6412 72
1314 15311 215 233 251322
25 312124 3223 606
suits [6] 312224 321131619
support [1] 4114
supporting [3] 122 28 2012
supports [1] 536
SUPREME [2] 1114
surrounding [1] 4314
Sutherland [2] 613 1725
sweep [2] 724 258
sweeping [1] 6419
Switzerland [1] 98
system [2] 4325 4712
systems [1] 5918
T talked [2] 6625 686
talks [3] 811 6418
tandem [2] 515 535
target [1] 6114
Tate [6] 361819 3921 403 437
464
tax [1] 3821
tells [1] 531
tense [1] 324
Tenth [1] 1814
term [3] 410 64310
terms [1] 643
terms [5] 3314 351419 47419
test [2] 1521 6722
Texas [1] 6814
text [16] 31421 51922 191315
15 2018 3313 352235 4720
4812 6325
textual [1] 75
themselves [2] 616 6710
theory [2] 1224 3919
theres [23] 920 181 1910 2016
2111 2622 3118 359 363 403
12 446 4715 4923 5522 5718
581417 601719 6479 671
therefore [3] 342 3624 6316
theyve [2] 3715 4417
thinking [3] 425 4323 5421
third [3] 913 231725
third-party [1] 677
thirdly [1] 1215
three [2] 218 3720
tie [1] 1715
tied [1] 1016
today [5] 1917 2115 236 3710
4019
together [1] 539
took [1] 1718
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67911 686
tortious [1] 261
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Trade [1] 3720
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transactions [1] 814
Treasury [1] 6223
treat [4] 1216 3323 432
treated [4] 3324 398 42210
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treatment [7] 4219 48131418
491822 6814
treaty [17] 121417 332022 381
2121324 4124 422122 4311
597 6515 665
tried [1] 497
true [9] 45 721 2119 369 3725
3813 401 496 5416
Truman [1] 1825
Trump [1] 6614
try [4] 1816 406 444 5819
trying [7] 3023 3225 4324 4414
17 4915 532
tuberculosis [1] 5825
tune [1] 4825
turn [2] 104 1117
turning [1] 1416
two [15] 416 518 77 1317 1621
17321 181 2025 2113 49323
535 6413 671
type [2] 15325
types [1] 5723
U UN [16] 1013 1220 381819 39
10131424 40717 4121717 51
16 549 664
US [5] 321618 3420 382 5322
ultimately [1] 616
un-developed [1] 5917
unanimous [1] 3425
uncertainty [1] 5816
under [22] 319 118 1224 1424
22514 26524 322 3515 382
18 398 4119 4620 501 569 57
13 617 6221418
understand [2] 1821 261
understanding [1] 658
understates [1] 579
Understood [4] 2417 299 3713
4121
undertaken [1] 386
UNITED [33] 111522 27 1112
2011 2519 262025 3111 365
2021 378917 381516 39718
4011 4816 5218 5318 5412 55
4711 562 622025 68711
unless [2] 3516 5916
unlike [1] 5818
unlikely [1] 5518
until [3] 389 3919 4012
up [18] 44 923 164 2015 2225
281 322 37771023 383 441
717 5925 603 629
urge [2] 1914 667
urging [1] 416
uses [2] 178 3514
usual [1] 295
V various [1] 6517
vast [1] 258
Verlinden [1] 4525
VERRILLI [25] 124 210 33679
3412 363 401823 42813 43
11 4591618 468 492 5215 55
621 56313 5747 641
version [1] 6125
versus [2] 34 618
view [1] 2913
violation [1] 3924
virtual [1] 3312
virtually [22] 331521 34117 36
1622 3817 391151623 4122
4223 433 462 4717 4817 52
20 5720 621113 6518
vitally [1] 502
W waive [7] 917 2313 24310 3121
2124
waived [1] 324
wanted [4] 1711 19125 231
wants [1] 6313
War [1] 446
Washington [4] 1102124 583
wastewater [1] 6814
way [29] 6920 1216 1322 1421
157 1615 172325 2416 2516
21 3446 3822 3967 423515
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21 6537 6818
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Wednesday [1] 111
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Whereupon [1] 6822
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22 361 3825 6412
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Woods [2] 4325 441
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1589 1789 4014
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6520
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616 63715 6811
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Heritage Reporting Corporation Sheet 7 stand - World
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2224 324 3720 44555 5823
5915
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reams of cases to that effect My opponents
cite only one case on the other side thats an
Armed Career Criminal Act case Even there
is didnt mean at the time of suit it meant
at the time of the prior conviction So is
is on our side of this case
But in Carcieri which is the now
case the Indian case the Court went out of
its way in that opinion to say the insertion of
the word now takes us out of the ordinary
situation which is when the referenced law
applies at the time of suit And so you can
look at the Sutherland treatise which dates
back to 1904 on this principle
And look at its -- in -- in your own
case Justice Breyer I think if I was going to
give you one case it would be the Steamboat
versus Chase case we cite in our reply brief
Thats interpreting the Judiciary Act which
goes all the way back to the founding of
course and says where the common law is
competent to give a remedy such and such a
remedy is permissible
And in Steamboat the Court rejected
the exact argument the other side makes here
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which is first of all that the law had to be
incorporated at the time of suit and second of
all that there was something different about
the common law as to a statute at the time of
the enactment So all of the textual stuff is
in our favor
Now youve also asked me two other
questions and let me address them So starting
with the commercial activity exception as
applied to a group like the IFC when you
answer -- when you think of that question its
a question of how close you -- you put the lens
into whats going on here
So if you just take a foreign state as
the -- as the comparator here a foreign state
itself does all kinds of things Like you
said Justice Breyer they are not commercial
activity But a foreign state might have a
bank for example that does almost all
commercial activity
And so the same thing is true with
international organizations and let me answer
that in a few different steps So first of
all look at the sweep of international
organizations Many do things like regulation
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for example managing fisheries They do
things like dispute resolution law
enforcement Interpol They do scientific
research and agricultural research All of
those things are non-commercial activities on
the other side
Then you have the category the
special category of lending banks but even
within lending banks not all the things that
lending banks do are commercial activity The
IFC itself on its website talks about how it
gives advice to foreign governments about
legislation that ought to be passed regulating
financial transactions with the private sector
That is not probably commercial activity
And then even within lending
activities Justice Breyer just take the World
Bank it has five separate institutions Now
the IFC is on one side What the IFC does is
-- is loan money at market rates for profit for
private sector projects There are other
components of the World Bank and there are
other lending institutions that are
international organizations that give grants
for public works programs or that do the kind
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of spending that governments do And the
governments argued in past cases and we think
theyre probably right that that is not
commercial activity either
So when the other side says well
everything is commercial activity its no
different than the foreign state coming to this
and saying well if the Bank of Switzerland
does commercial activity then were -- were
stuck Well no no no its just how closely
you look at the problem
JUSTICE BREYER What about -- the
third was if we -- if we decide with you -- if
we decide against you see that would mean
there is sovereign immunity But there
shouldnt be in a particular case the State
Department can waive it and they have to be -shy
response
But if we decide for you and then
theres a case where there really shouldnt be
sovereign immunity or rather -- rather there
really should be I guess -- see thats what
Im getting mixed up You see if we decide
against you and they really should have
sovereign immunity in this case nobody can do
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anything So knowing nothing about the
future it seems a little safer the first
than the second
MR FISHER Well Im going to turn
back in a moment to the law and why that just
cant fit within the law but as to just the
policy question youre asking me even there -shy
JUSTICE BREYER Well you can look -shy
the reason I ask policy questions is because
the hornbook said yes apply it as of now as
long as its consistent with the purpose of the
statute And the purpose of the statute going
back to 1945 and the UN and everything was
to get these organizations to locate here
So its not just policy for policy
Its policy for purpose And purpose is tied
into how you interpret the language
MR FISHER So let me give you the
practical answer and then the purpose answer
On the practical answer
organizations especially if they want a
headquarter here or are headquartered here are
fully able to -- to lobby Congress or the
executive branch for special immunity And
there are many examples across international
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organizations
Take the Organization of American
States OAS And the solicitor general
discusses this in -- the organization in its
brief In 1994 it negotiated a special
immunity provision for itself to get more than
the ordinary restrictive form of immunity that
was available under the IOIA
So there are -- there are pathways
available and they have been used even more
so
Remember the United States as you
say has a -- has a sometimes principal
interest in these organizations So it is
quite responsive to them when they come and
say We need more than the IOIA gives us
But Justice Breyer let me turn back
to the -- the original purpose which was the
legislative history is quite clear on what the
purpose was As you say this was partly to
create a form of immunity to give some comfort
to these organizations But the question is
what form of immunity did they ask for and what
did they get
What they did is they came to Congress
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and said treat us like foreign governments
Give us immunity as Congress put it in a
Senate report of a governmental nature And
so what did Congress do It gave them exactly
what they asked for It said were going to
treat you as a default measure like a foreign
government
And remember the words of the
statute are same immunity Same immunity
as is enjoyed by federal governments So were
going to give you the same immunity subject to
the Presidents ability to just -- adjust it
and subject to your own ability and your own
treaty to negotiate for more and subject
thirdly to Congresss ability to give you some
immunity that you dont have even by way of
your own treaty
JUSTICE SOTOMAYOR Can we go to that
issue raised in part The special immunity I
know was even negotiated by the UN I think
in the 1990s and OAS and others but assume
that were in your regiment and Justice Breyer
made the assumption that if a lawsuit came to
us now under your theory and it was limited
immunity that the President or Congress could
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give immunity to the other side
I dont think so
JUSTICE BREYER No its the
opposite
JUSTICE SOTOMAYOR The opposite The
President cant decrease it correct So that
problem still remains with your -shy
MR FISHER Well -shy
JUSTICE SOTOMAYOR Yeah
MR FISHER -- I think it -- it may
or may not remain Justice Sotomayor
JUSTICE SOTOMAYOR Thats my -shy
MR FISHER Certainly we could -- we
would say we can go forward on this suit
because -- because there is no such law
If that law were passed youd have
two questions One is did Congress make it
retroactive And you look to Altmann to think
about how to judge the retroactivity of
immunity provisions And then if it were
retroactive whether that were permissible
But you know were a long way from
-- from that sort of a situation I think the
important thing going forward and this is I
think what the concern is on the other side
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is not so much about this case but about
incentives and policies going forward they
have every opportunity to negotiate in one form
or another or to procure a heightened form of
immunity
And Justice Sotomayor let me say one
more thing to you and Justice Breyer about you
know the idea of the executive branch getting
involved This is one of the problems I
submit with the other sides argument
Remember part of the goal of the FSIA
in the first section of the Act in Section 1602
is to get -- is to get the executive branch out
of the immunity business
Congress made the determination that
it was a bad idea to have every case turning on
individualized suggestions of immunity and
executive branch political policy And so the
other side by importing the common law of
1945 would reintroduce that problem into
international organization immunity in a way
that we dont think would be very good
politically or very workable in the courts
And Id hasten to add that even under
the rule of 1945 if the question were what
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does the executive branch think about any given
lawsuit or any given immunity for any given
type of suit that would just lead you right
back to the FSIA and it would lead you back to
the same conclusion that we submit to you here
So either pathway whether Justice
Breyer you start with the way youve always
looked at cases with the word is and the
word same and the reference canon that Ive
described and say all of those things lead you
to a time of suit rule or if you start with
the law of 1945 and say what was the law in
1945
Well Hoffman and -- in Ex Parte Peru
were clear that the law of 1945 was the
executive branch decides and its not for the
Court -- this is -- Im going to give you the
Courts own language -- its not for the Court
to give immunity where the executive branch has
not seen fit to give it
And if that were the test youd come
right back to where you -- where I started
here which is that the FSIA would control or
at the bare minimum the executive branch
position in this lawsuit on the type of
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immunity that ought to apply in this situation
would control So -shy
JUSTICE GORSUCH Mr Fisher if I can
pick up on Justice Breyers question The
reference canon I take all -- all of your
points but sometimes lets say we have a
statute that -- that refers to another statute
Usually we would look at the second
statute thats being incorporated as of the
time of -- of the adoption of the first
statute Right So if -- if this statute were
to say go look at Section 5 -shy
MR FISHER Right
JUSTICE GORSUCH -- we wouldnt look
at it the way its been subsequently amended
Wed look at it as it was originally enacted in
1945
Why isnt that -- that idea pertinent
here you know when we refer to a specific
law we dont take it to evolve over time
MR FISHER So for two reasons
Justice Gorsuch and one of them if youll
forgive me is going to be something you said
in the Alan Contoe opinion
JUSTICE GORSUCH I was afraid of
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that
(Laughter)
MR FISHER But for two reasons One
is Congress has a choice to make when it writes
legislation It can lock in a given rule by
setting a specific statutory provision and says
thats the rule we want just like if Congress
uses a particular word at the time of the
enactment the meaning of that word at the time
of enactment would be what Congress -- wed
assume Congress wanted
Or Congress could do something
different which is to say look were not
sure exactly of the metes and bounds of the
law Were just going to tie it to this other
area of law as a general matter And thats
what Congress did here It did the latter
So it took an area of law as a point
of reference and said Just use that as the
default rule and then adjust as necessary And
those are just two different pathways Congress
can go down
And they date as I said all the way
back to the First Judiciary Act there in the
Sutherland treatise all the way back to 1904
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and so theres just two different pathways
Congress can go down
And it makes perfect sense I think
in a situation like this especially where you
have a common law doctrine being referenced at
least a common law at the time and one that
was indeed not just any old common law
doctrine but one that was in a great deal of
flux at the time So it made every reason -shy
it made every good reason for Congress to have
a general reference not a specific one
And then the second reason Justice
Gorsuch is the one you mentioned sitting on
the Tenth Circuit which is that as time goes
by it becomes all the more stilted or
antiquated or even foolish sometimes to try to
answer questions in the modern day according to
what some bygone era doctrine would have
required and especially a bygone era doctrine
like this
If I understand the other sides
position correctly basically the question
theyre having -- they would want every federal
court to ask in these cases is what would the
Truman Administrations State Department have
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wanted to do in this case
And when you have things like this
which didnt even -- an organization that
didnt even exist at the time sometimes doing
activities that werent even contemplated at
the time things like sovereign wealth funds
which foreign sovereigns now engage in for
example who knows what the State Department
would have thought then
I think theres every reason then to
fall back on the reference canon And if I can
say one more thing before reserving my time if
you have any doubt about just the plain text
argument Ive given you I would urge you to
compare the text in Section 288a to the text -shy
Section 288d which has the exact dichotomy
that -- that Ive been discussing today
One subsection subsection (a) says
that the same immunity rules apply and
subsection (b) says that foreign officials -shy
Im sorry international organization officials
are entitled to absolute immunity
So this is yet another reason why if
the other side were correct and if Congress had
wanted to lay down the rule they did why would
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they not have just used the absolute immunity
language in subsection (b) of subsection (d)
and that indeed was the original draft of
this act that was discarded
So I could go on but Id rather save
the rest of my time for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Ellis
ORAL ARGUMENT OF JONATHAN ELLIS FOR
THE UNITED STATES AS AMICUS
CURIAE SUPPORTING THE PETITIONERS
MR ELLIS Mr Chief Justice and may
it please the Court
If I could Id just like to pick up
right where my friend left off Theres been a
lot of discussion so far this morning on the
text of Section 288a We agree that the
Petitioners have the far better reading of that
phrase in isolation but I think it really
settles the deal when you look at the entire
structure of the Act
The -- the IOIA doesnt just grant
immunity in Section 288a(b) but it provides a
whole host of immunities and it does it in two
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different ways In several different
provisions the Act sets a fixed rule of
immunity So archives are inviolable and
officers and employees of the organizations are
immune from suit with respect to their official
acts
And then there are a -- a host a
collection of three provisions that set the
immunity by reference to foreign governments
Theyre Section 288a(d) Section 288d(a) and
theres Section 288a(b) the one at issue here
Respondents concede that the
referential language in those other two
provisions do refer to the state of the law as
it is today
Its only the one thats at issue in
this case that they say was frozen We dont
see how that can be and thats particularly
true when you look at the drafting history that
my friend referred to
JUSTICE KAGAN Mr Ellis before you
get to that another part of the structure is
this provision that deals with presidential
authority and thats essentially a roll-back
authority of immunity
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Doesnt that make a lot more sense
that provision if you assume that Congress
meant for there to be absolute immunity In
other words the presidential authority is a
one-way ratchet The President can only under
this provision roll it back It cant increase
it
So to me if I -- if -- if -- if -shy
if the immunity -- if the immunity is less than
absolute you would think that they would have
given the presidential authority both ways
MR ELLIS Sure The reason that
argument doesnt work is because Section 288
the Presidents authority under that provision
doesnt just apply to Section 288a(b) It
applies to all of the immunities provided by
the IOIA
And as I was just describing some of
those are fixed immunity rules that are not
absolute And so for instance the officers
and employees of international organizations do
not receive diplomatic immunity That was a
big deal at the time
And -- and yet the President cant -shy
couldnt grant that up I think what that
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provision shows is that Congress wanted to
provide international organizations at most the
immunity from suit and other privileges of
immunities that foreign governments received
and not more so
And yet Respondents are here today
asking you for exactly that more immunity -shy
JUSTICE BREYER But on that -shy
MR ELLIS -- than foreign
governments receive
JUSTICE BREYER But look whatever
other things it refers to the provision allows
the President to waive immunity not to grant
immunity And your argument is they have
immunity Right
Do I have -- I get this backwards
This is the third time Ive got it backwards
(Laughter)
JUSTICE BREYER Sorry The provision
allows the person to be sued Is that right
MR ELLIS It does allow them to be
sued
JUSTICE BREYER Okay So I was
right I had it backwards the first time but
not the second not the third all right
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(Laughter)
JUSTICE BREYER It allows the
President to waive the immunity
MR ELLIS Thats right
JUSTICE BREYER Okay It doesnt
allow him to grant the immunity
MR ELLIS It does in a sense I
mean -shy
JUSTICE BREYER But the power to
waive the immunity at least in this section
amounts to nothing if they have no immunity
because for example all they do is lend
money
MR ELLIS So -- so a couple -shy
JUSTICE BREYER Thats -- thats -shy
and the other way it seems to work itself out
MR ELLIS Understood
JUSTICE BREYER Okay
MR ELLIS A couple responses to
that Your Honor
JUSTICE BREYER Thats the question
I think
MR ELLIS Glad to be able to address
that Number -- number one just to be clear
we -- they do have a great deal of immunity I
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mean foreign -- international organizations
and foreign states are presumptively immune
And I would agree with almost everything
that -- maybe everything that -- that my friend
said about why the commercial activity
exception even with regard to IFC and -- and
most -- more importantly with regard to the
vast sweep of these organizations is not going
to eliminate immunity
I would add one more is that even a
case like this we have serious doubts I
think -- we think in fact from what we know
this suit isnt going to be able to go forward
regardless of the answer to the question
presented because in addition to having -- to
being connected in some way to commercial
activity there must be a much stronger nexus
It must be based on commercial activity that
occurs in the United States
We think the Courts decision in OBB
makes clear that the way you apply that is to
ask Whats the gravamen of this suit Its
not enough to have some attenuated connection
but whats the gravamen
And the gravamen of this suit as we
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understand it is -- is tortious conduct that
occurred in India injuries that occurred in
India And we dont think -- we have serious
doubts that this is going to be able to go
forward even under restrictive immunity
And so we do not think that what were
doing is opening the floodgates here rather
that the sort of concerns that would be barred
-- cases that would be barred by Respondents
absolute rule of immunity and would be allowed
by ours are -- are sort of quintessential
domestic disputes contract disputes with your
contractor who renovated the building the slip
and fall at the -- at the organizations
headquarters or the driving accident on the
streets of New York and DC
JUSTICE SOTOMAYOR Do you have -- do
you have any idea about how many of these kinds
of organizations are headquartered in the
United States
MR ELLIS I think the numbers are in
the 20 to 30 range Theres about -- somewhere
80-some organizations that have been designated
for protection under IOIA and 20-some that have
-- I think are headquartered in the United
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States
JUSTICE SOTOMAYOR That are
commercial like this one
MR ELLIS No no no No I did
not -- no
JUSTICE SOTOMAYOR Were -shy
everybodys assuming -shy
MR ELLIS Right
JUSTICE SOTOMAYOR -- a floodgate
MR ELLIS Sure no There are -shy
JUSTICE SOTOMAYOR Including Justice
Breyer
MR ELLIS -- there are a number of
development banks but even then even -- even
the development banks even if you talk about
the World Bank its not clear that those
commercial activities are the sorts that the -shy
the FSIA captures with the commercial activity
exception Lending there is to sovereign
governments
And -- and as the Court has been -- as
lower courts have explained that sort of
commercial activity is not the sort that a
private party could engage in So its not the
sort that the commercial activity exception
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picks up
JUSTICE BREYER Well I -- I have the
IFC the IMF the World Bank the
Inter-American Development Bank the Asian
Development Bank the African Development Bank
the International Development Association So
I -shy
MR ELLIS Sure I -shy
JUSTICE BREYER -- Ive got -- thats
only half of them
MR ELLIS Thats -- that -- Im not
sure what percentage that is I want to point
out that some of those organizations -shy
JUSTICE BREYER There are a lot
MR ELLIS -- have their own immunity
provision in the -- in their charter And so
thats what we think -- if you look at the
history thats what -- thats how it has been
dealt with for organizations that require
absolute immunity Weve entered into
agreements
I would point again to the OAS
agreement where the State Department is just
crystal-clear that what OAS did in that
agreement was to negotiate absolute immunity
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because they thought thats what they needed in
order to put their headquarters here
JUSTICE KAGAN But Mister -shy
MR ELLIS We agreed to that and we
said But hey this is not our usual
practice Ordinarily we -- we afford only
restrictive immunity We point to the FSIA
JUSTICE KAGAN Mr Ellis I -- I
guess Im not sure I -- I quite understood what
you meant As to the core lending activities
of these multinational development banks in
other words making loans where private actors
would not make loans do you have a view as to
whether that counts as a commercial activity or
not
Did you say that that would not count
as a commercial activity because theyre making
loans that the -- that the private market would
not make
MR ELLIS No Im -- Im not saying
that its -- that its enough that theyre
making loans that a -- that a private -- they
couldnt find a private party to provide Im
saying if the nature of the loan is such that
its -- its not the sort of transaction that a
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private party would enter into so think about
the IMF that grants -- that lends to sovereigns
and they do so on the requirement that the
sovereign enact certain restrictions -shy
regulations and change their -- their -- their
laws in order to assure that they dont need
the money again
That is the sort of thing thats been
held by lower courts and weve advocated is
not a commercial activity Thats just not the
sort of transaction that a private party can
enter -- enter into Its not just that a
private party didnt Its that -- that no one
-- thats not something that you can do
Thats a sovereign act
JUSTICE BREYER But can you give
me -shy
MR ELLIS Or a quasi-sovereign act
JUSTICE BREYER -- anything to assure
me because when I looked through this list I
thought that there were development banks like
the World Bank which is a pretty big deal as
well as in Asia in Africa were trying to
encourage development all over the world and
suddenly by removing the sovereign immunity
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because the plaintiff will claim this is a
commercial activity
MR ELLIS So -- so -shy
JUSTICE BREYER And youre not
denying it
MR ELLIS And so -shy
JUSTICE BREYER So what is the
assurance that the government can give us that
this isnt going to lead to a lot of lawsuits
and this isnt going to interfere with perhaps
activity that the United States traditionally
has been very much in favor of
MR ELLIS Absolutely Let me -- let
me give you a couple things I think weve
given you a number of -- of points already this
morning as to why we dont think the floodgates
are going to open
If -- if theres one more Ill say
just look at the -- the charter of these
organizations Look at the IFCs charter
They already waive suit waive immunity for
suits going directly to their core activities
They -- they in fact indicate that they -shy
they need to waive suit in these suits
And so I -- I think when youre
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talking about what are the suits that are going
to come up under commercial activity many of
them are already going forward because the IFC
and the World Bank and others have waived their
immunity
JUSTICE GINSBURG And they need to
because
MR ELLIS They need to because no
ones going to enter into a financial
transaction with them if they -- they know they
cant sue if it -- if it goes south
The other thing -- I want to also
focus the Court on the -- on the suits that we
know are not going to go forward on the
absolute immunity side Were talking about
suits by -- by US citizens and residents
about domestic conduct and theyre seeking
redress in US courts
These are the suits that foreign
governments are -- are able to be sued on and
dont have immunity And we dont see any
reason why international organizations should
not also be subject to suit in those
circumstances and we think thats exactly what
the Congress was trying to do when it enacted
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Section 288 in 1945
If there are no -- no further
questions we ask the Court to reverse
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Verrilli
ORAL ARGUMENT OF DONALD B VERRILLI
ON BEHALF OF THE RESPONDENT
MR VERRILLI Thank you Mr Chief
Justice and may it please the Court
The IOIA prescribes a standard of
virtual absolute immunity that is fixed and not
evolving We know that because the text
incorporated common law terms that had a
settled meaning of virtually absolute immunity
and because a fixed standard makes the most
sense in light of the statutory context and
purpose
Now the reason that Congress enacted
the IOIA was to fulfill treaty obligations that
committed us to provide virtually absolute
immunity Those treaty obligations did not
commit us to treat international organizations
the same as foreign states were treated They
committed us to the substantive standard of
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virtually absolute immunity
And therefore if -- if -- if the
language in section 288b is interpreted in the
way my friends on the other side suggest -shy
JUSTICE SOTOMAYOR So why didnt
Congress say that the way it did in the other
provisions of this Act And if it intended
that in no change it could have said it and
given the very exception it gave which is that
the President or the executive could reduce
immunity which was the standard at the time
MR VERRILLI So let me start with
the basic question We think if the Court
applies the normal rules of construction that
it applies in statutory interpretation cases
that Congress did say that it was providing
virtually absolute immunity
And I think a case in particular that
I would point the Court to is the Nader
decision 527 US and in particular to page
21 of the Nader decision Thats a case -shy
that case of course was about whether mail
fraud and wire fraud incorporated a materiality
standard This is an opinion by Chief Justice
Rehnquist unanimous for the Court on this
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point The Court said first we look to the
text of course and when looking to the text
if we -- if -- and in looking to the text
based solely on a natural reading of the full
text materiality wouldnt be an element of the
fraud statute
And then the Court says But that
does not end the inquiry because in
interpreting statutory language theres a
necessary second step And this is -- Im
coming to the point that I think governs here
which is that it is a well-established rule of
construction a rule of construction that
where Congress uses terms that have accumulated
settled meaning under the common law a court
must infer must infer unless the statute
dictates otherwise that Congress means to
incorporate the established meaning of those
terms Now the -shy
JUSTICE GINSBURG What about the
argument that there wasnt an established
meaning in -- what was it -- 1945 that it -shy
the -- the status of the immunity was in flux
It had been absolute but then we were going
over -- the State Department was advising the
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court whether immunity should be given in a
particular case
MR VERRILLI Theres a bit of a
suggestion to that effect in the brief of the
United States Your Honor but I would
respectfully suggest that is not a fair
characterization of where things stood in 1945
at all
It is true that some people within the
State Department in 1945 thought that immunity
should move to a more restrictive standard but
the Justice Department would not even advance
that standard in this Court at the request of
the State Department and this Court did not
describe the immunity as being in flux This
Court said the standard was virtually absolute
immunity
If one looks even in 1952 at the Tate
Letter the Tate Letter didnt say the law was
in flux in the United States It said the
United States was hewing to the standard of
virtually absolute immunity but other
countries were moving towards a standard of
restrictive immunity and therefore we ought
to reconsider what were doing
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So I just -- I mean the Court can
read these materials for -- for itself but I
just respectfully do not think its a fair
consideration of where things stood in 1945 at
all
And then if I could Id like to pick
up on a related point that came up in the brief
of the United States Its another statement
in the brief of the United States and it came
up in argument today that look this really
isnt a problem because for those organizations
that need immunity that goes beyond the -- the
restrictive immunity weve always understood
that they get -- they can go get a special
statute and theyve gone and gotten special
statutes
The United States says on page 27 of
its brief precisely because the IOIA didnt
provide that level of immunity they give these
three examples IMF World Trade Organization
and Organization of American States
Id like to take a minute and go
through each of them because it doesnt hold up
with respect to each of them With respect to
the IMF for example it is true the IMF you
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know it has a -- has a treaty There was a
statute that gave that treaty effect under US
law which ended up providing for absolute
immunity
But it cant possibly be that that was
undertaken based on any sense that the IOIA
didnt provide that level of immunity because
the IMF statute was enacted in July of 1945
and the IOIA wasnt enacted until five months
later So it cant possibly substantiate what
the government was saying
If one looks at the WTO treaty it is
true with respect to that treaty that it
committed us to a very wide scope of
immunities It said that the United -- that
the United States will commit to providing all
or virtually all of the immunities provided
under a whole different UN convention the
UN convention on specialized agencies
Now that convention has all kinds of
tax immunities and property immunities that go
way beyond what the IOIA provides So of
course they needed another statute in order to
make those treaty commitments That doesnt
prove anything about whether anybody thought
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that the IOIA failed to provide virtually
absolute immunity
In fact the historical evidence I
think really to the extent it points in any
direction it points very much more in our
direction And the best way to see that is
with respect to the way the United Nations was
treated under -- by the executive branch in
this country
Now we signed the UN charter in
1945 committed us to provide what the charter
describes as the necessary immunities Then
the UN Convention on Immunities was
negotiated in 1946 which said that the UN
should get virtually absolute immunity Not
the same immunity as foreign states virtually
absolute immunity
Now the United States did not ratify
that convention until 1970 So on the theory
that my friends on the other side have from
the moment of the Tate Letter in 1952 when
foreign state immunity became restrictive and
not virtually absolute anymore we were in
violation of the commitment we made in the UN
charter
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Now if that was true you would
certainly expect the State Department A to
address it in the Tate Letter but theres
nothing in there Its a classic case of the
dog that didnt bark And B you would expect
them to try to do something about it like get
the UN Convention ratified immediately
because otherwise we were going to be out of -shy
out of compliance with our obligations to the
granddaddy of all international organizations
the United Nations
But theres not a -- from 1952 until
the ratification of the Convention in 1970 you
cant find one word by anybody in the executive
branch ever saying that What you do find -shy
JUSTICE SOTOMAYOR What commercial
activities was the UN doing at that time
MR VERRILLI Well -shy
JUSTICE SOTOMAYOR I know today its
a very different organization but its not
clear to me that there was much going on that
was commercial at its initial stages
MR VERRILLI I take that point Your
Honor but what I would say in response is that
there was a very great deal of sensitivity
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about the whole package of -- of immunities
that were available to the UN and its
diplomats and its -- and its workers
And there was concern all along from
1952 to 1970 that -- that -- where the
executive was urging Congress to ratify the
convention but the only things ever mentioned
were the diplomats -- immunities for diplomatic
individuals
And then when you get to 1970 and you
actually look at the Senate report accompanying
the ratification this was not in our brief
but its at page 31 of the brief of the -- of
the scholars who filed the brief in support of
us It quotes the Senate report from 1970 and
what the Senate report says is were not
granting the UN any -- the UN as an
organization any immunity it didnt already
have under the IOIA
So as late as 1970 it was just quite
clear that everybody understood the IOIA
conferred virtually absolute immunity And of
course thats because it was -- it was enacted
to comply with our treaty obligations
It wasnt enacted to make sure that
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come what may that international organizations
would get treated the same as foreign states
That is -- you know thats the best way to
think about it is its just a completely
anachronistic way of thinking about the body of
materials in front of you
JUSTICE KAGAN But even what you just
said Mr Verrilli it wasnt enacted to make
sure that foreign organizations would get
treated the same as foreign states
I mean thats exactly what the
language of the thing says
MR VERRILLI Well so I guess a
couple of things about that I think the right
way to think about the language Justice Kagan
is that it was a means to an end in 1945 when
it was enacted
It was not the end in itself to assure
equivalence of treatment come what may It was
the means by which Congress ensured that it
would fulfill its treaty commitments which were
-- and those treaty commitments were to provide
virtually absolute immunity
And we know the Senate report says
were enacting this provision to fulfill our
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treaty commitments And our treaty
commitments again were not to treat them the
same They were to provide virtually absolute
immunity So -shy
JUSTICE KAGAN Do you think it was -shy
you answered Justice Ginsburgs questions about
how far we were from the Tate Letter in 1945
but do you think it was inconceivable to
Congress that the common law of immunity would
change
MR VERRILLI Well I -- I -- I cant
say that it would be inconceivable to anybody
but what I can say is if one looks at the
debates surrounding the passage of the IOIA
is once again its a dog that didnt bark
You cant find a single person
anywhere saying anything remotely like the
proposition that we need to adopt a standard
that will evolve over time because we have a
concern that foreign sovereign immunity law
will evolve over time
That just was not any part of
anybodys thinking at that time They were
trying -- you have to remember this is coming
out of the Bretten Woods system We have
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Bretten Woods We set up all these
organizations
They have a -- they have a desperate
mission in front of them to try to rebuild the
world -- the world after the carnage of World
War II Theres a lot of pressure on Congress
to get these organizations up and going and
give them the immunity we promised them so they
can go out and do their work Thats what led
to the enactment of the IOIA
It was none of these other things as
I said I really think if you look at the
historical materials its the -- the gloss
that my friends on the other side are trying to
put on it is completely anachronistic
Theyre taking a different concept
that theyve come up with now and trying to
retrofit the historical facts to match it and
it just isnt right
JUSTICE BREYER Is that -- is that -shy
the Russians at that time 45 and so forth
were putting all these businesses into state
entities So my guess is there were -- there
were a number of cases and what I thought I
heard Mr Fisher say is if we really go back
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and look at this well see that the status quo
before this passed was not absolute immunity
but the status quo was a kind of mess where
sometimes the State Department would say give
them immunity and sometimes the State
Department would say not
Now what is the actual situation as
far as youve been able to find it
MR VERRILLI Well I dont -shy
respectfully with respect to my friends on the
other side I dont think thats a fair
characterization of the historical materials
JUSTICE GINSBURG Thats the same -shy
the answer you gave to me is the answer you
would give to Justice Breyer
MR VERRILLI Yes
JUSTICE GINSBURG Same question
MR VERRILLI Yes I mean its just
not there I mean look at what this Courts
cases said This Courts cases didnt say
anything like that
The -- the -- the governments briefs
to this Court didnt say anything like that
When this Court has looked back on the law in
Verlinden and in Samantar it hadnt said
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anything like that It said the standard was a
common law standard of virtually absolute
immunity
And thats in fact how the Tate
Letter describes it too And then as a process
matter -shy
JUSTICE BREYER Okay I got it
MR VERRILLI -- my friends on the
other side have made this argument that well
our position would also require you to go back
to the process of the State Department making
an ad hoc case-by-case determination but
thats wrong too
And thats clear on the face of the
statute that its wrong And the reason -- and
-- and thats right in Section 288 This
creates an entirely different mechanism
What the -- what the IOIA says is that
-- that the President shall have the authority
under executive order once Congress has
enacted a statute to grant an international
organization the privileges and immunities
And if you look at the face of the
statute its obvious that they are granted on
a categorical basis in gross by an executive
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order not on a case-by-case basis by the State
Department when -- when a lawsuit is -- or when
a -- when a lawsuit is filed
And then similarly in terms of the
Presidents authority as to an executive order
to reduce or eliminate the -- the immunity of
an international organization that -- its -shy
again its completely different than the
situation that -- than the common law process
at work So obviously Congress made a
judgment that it was going to put a different
structure and system in place
And the fact that Congress did that I
do say -- I do think quite clearly presupposes
that theres a -- the existence of a
substantive standard being prescribed And the
substantive standard as I said is virtually
absolute immunity
And then in terms of the structural
indicators in the statutory text going back to
a question you asked Justice Sotomayor I
really think the most telling one to -- to
show you I think why my friends on the other
sides case is completely anachronistic and
were correct -- is Section 288f which you can
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find at page 6a of the appendix to the blue
brief
That provision says that the
privileges exemptions and immunities of
international organizations and then of -- of
members and employees et cetera shall be
granted notwithstanding the fact that similar
privileges exemptions and immunities granted
to a foreign government et cetera et cetera
may be conditioned upon the existence of
reciprocity by that foreign government
So right there in the text it
decouples the treatment of international
organizations from the treatment of foreign
states Even in a situation in which the
United States would not grant the full range of
virtually absolute immunity because it wasnt
being -- receiving reciprocal treatment this
statute says the international organization
gets it So -shy
JUSTICE GINSBURG How do you deal
with the argument that we just heard that we
can compare 288a on the one hand which -shy
which keeps the international organizations in
tune with foreign sovereigns and 288 -- was it
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b and d
MR VERRILLI Yes I do think that
the -- the differences break down into two
categories Your Honor There -- some of the
provisions do prescribe fixed standards
Thats true But those fixed standards as we
explained in our brief or at least tried to
are always situations in which the IOIA is
conferring a narrower set of immunities on -shy
on diplomats and individuals than the common
law would have at the time
So incorporation of the standard in
the way this 288a(b) did wouldnt accomplish
the objective there because there was -- they
were quite consciously trying to narrow the
overall scope of immunities and not give the
individuals who worked at these organizations
the same full treatment that diplomats got who
-- from foreign states
Now the second subcategory are the
provisions where the -- the statute says that
their -- the treatment shall be the same But
theres two things about that that are
significant
One is it says they shall be the same
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as under another statutory provision And as
we said we think thats vitally important
here We think its quite clear that in
addition to Justice Breyers points about the
reference canon that the reference canon
applies when one statute incorporates another
It doesnt apply when one statute incorporates
the common law And here they were
incorporating statutes
And if you look at those provisions
anyway theyre basically just instructions to
the executive branch when do you fingerprint
the people when theyre coming in What do you
do about that -- this detail or that detail
They dont go to the heart of the
matter at all And the heart of the matter
here is the immunity being conferred on these
international organizations
I just want to make a point about that
and then if I could talk about the
consequences that will ensue I think if we go
down the path that my friends on the other side
are suggesting
I think this is a critical point I
just want to make sure its clear Another
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reason why you shouldnt draw this equivalence
-- and it cant be that Congress really
intended to draw an equivalence between foreign
states and international organizations such
that they would just move in tandem no matter
what -- is that immunity is granted for
different reasons
The reason you give an international
organization immunity is a functional reason
not a status reason Its not about according
the appropriate respect to the sovereigns
because international organizations arent
sovereigns Theyre separate juridical
persons And whats quite clear -- its clear
from the U -- the San Francisco report on the
foundation of the UN its clear from the
Senate report in 1945 its clear from all the
commentators that we discussed in our brief
its clear from the Restatement of Foreign
Relations which weve cited in our brief that
you grant immunity to international
organizations so that they can carry out their
functions effectively And -- and just take -shy
let me take a minute and kind of elaborate on
that because I think its critical
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Remember these are -shy
CHIEF JUSTICE ROBERTS If you dont
mind Im afraid Im about five minutes behind
you here but going -- going back to your point
on 288f you said its there theyre decoupling
the international organizations and the foreign
sovereigns But as I go back and read it
its simply because the -- the foreign
sovereigns have the capability to use
reciprocity and the foreign -- and the
multi-country organizations do not
I dont -- I mean thats the
difference theyre drawing there not something
between the scope of the actual immunities
MR VERRILLI Well I -- well the
way I read it Mr Chief Justice is what -shy
what theyre doing there is saying even in a
situation in which the United States concludes
that it wont afford a foreign sovereign the
full virtually absolute immunity because of
reciprocity in other words were not getting
it back from them even in that situation an
international organization of -- where those
sovereigns are members will still receive the
full level of immunity
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And so I think what that tells us is
that what Congress was trying to do in this
statute overall was prescribe a fixed
substantive standard not a floating standard
where the two things move in tandem So -- and
I -- I do think it supports that
And if I could just go back to the
functional point remember these are
collective bodies and members come together
they make -- they -- they take resources from
each of their own countries They put them
into these organizations They make collective
decisions about how to deploy those resources
And the point of the immunity here is
so that the courts of any country but
especially the host country which for the most
important organizations are going to be here in
the United States cant override the
collective judgments that they make about how
their resources would be deployed and what
conditions they ought to impose et cetera by
the intervention of domestic law in US courts
and cant redirect the funds that are put into
these organizations to pay massive class action
tort judgments because of course the member
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countries are contributing this money because
they believe its going to be put to the use
that the -- for example the development bank
the development bank decides it should be put
to not to pay massive tort judgments
And I think one place you see this
very clearly if you look at the report of the
San Francisco conference about the founding of
the UN the State Departments -shy
Departments response coming -- report coming
out of that conference specifically says this
It says of course the United Nations cant be
subject to the jurisdiction of any one state or
its courts
And its for exactly this reason And
the same thing is true generally Thats why
you give it not for functional reasons -- I
mean excuse me not for reasons of status but
for functional reasons
And I think a key -- another key
reason why you shouldnt be thinking about this
as a standard that evolves evolves now and
over time is that those functional reasons
dont evolve now and over time
CHIEF JUSTICE ROBERTS Well what
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about the point that most of the concerns you
have are going to be dealt with by the
requirement of a nexus to activity in the
United States as opposed to simply abroad
where the projects are funded
MR VERRILLI Yes I was gratified
to hear the United States say that but -- and
-- but I could just -- Ill answer Your Honors
question directly but I want to broaden it out
a little bit because I think what essentially
the United States is saying here is look the
statute leaves one with no choice but to apply
restrictive principles of immunity Youve got
to jump off that cliff but dont worry it
will be a soft landing because the FSIA will
take care of a lot of these problems
And I guess what I would say about
that is in the unlikely event you dont agree
with me I -shy
(Laughter)
MR VERRILLI -- I hope theyre
right But theres no guarantee that theyre
right
JUSTICE BREYER Are the -- are the
lending decisions which may be fairly detailed
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and may include dozens of conditions made
within the United States
MR VERRILLI Well yes I think
thats a big part of the problem and -shy
JUSTICE BREYER Is there -- are there
lawsuits that could say that there was
negligence in determining in a different
country who the persons were or the conditions
under which the money would be spent Is that
an American lawsuit saying what youve done
here is commit the act of negligence or failure
to be a fiduciary here
MR VERRILLI Thats this lawsuit
Thats this lawsuit Justice Breyer Thats
exactly what theyre alleging
CHIEF JUSTICE ROBERTS Well but I
mean is that consistent with our opinion in
the OBB case which I think -- if the complaint
is based the gravamen of the complaint not
specific steps along the way and that was the
issue we dealt with in that case
And I appreciate the fact that its
you know to some extent dependent on the facts
and particular allegations but it would seem
to me to require a lot more than simply the
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specific decisions I think where -- wheres
the gravamen or gravamen however you say it
with whats going on here
MR VERRILLI Well we would
certainly say its India of course
CHIEF JUSTICE ROBERTS Yeah
MR VERRILLI And if -- if we have to
defend ourselves on that basis we will But I
-- but I -- I think it -- it understates the
real concrete risk here And what Id like to
do to illustrate that if I could is first
talk about the organizations that are going to
be exposed in a way that they wouldnt be under
the law
And as Justice Breyer indicated
earlier its important to remember this has
been the law in the DC Circuit for decades
and theres -- and people have ordered their
affairs based on the assumption that there was
virtually absolute immunity
But with respect -- but with respect
to the consequences and the groups affected and
then the types of effects With respect to the
groups affected youve got entities like us
the multilateral development banks And
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Justice Breyers identified many of them
Now the -- the main ones are here
here in Washington DC and theyre making
their decisions here and I think critically
too there are billions of dollars of assets
here
Now were going to make the OBB
argument for sure and I hope we win if we have
to make the argument I hope we win But who
knows how courts are going to come out on that
issue
Were going to have a lot of fighting
about that There are probably going to be
matters of degree Theres certainly going to
be significant disincentives arising out of
that uncertainty
Theres a whole another group of
entities that unlike the banks at least have
articles of agreement where we can try and fall
back on those for alternative arguments of
immunity where their immunity depends entirely
on the statutory grant the International
Committee of the Red Cross the World Health
Organization the fund to fight -- the global
fund to fight AIDS and tuberculosis and
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malaria
They are all entirely dependent on the
IOIA for their immunities and those immunities
are drastically different after this And then
we do have the issue I think with some
organizations that we may even actually now be
out of our -- out of compliance with our treaty
commitments
Now whats going to happen Heres
what I think is going to happen and I think
this lawsuit helps you see it
Now the way -- the basis of this
lawsuit is the following IFC when it loans
money here its loaning money in -- in parts
of the world where private capital wont go
unless we go in there
And very often they have un-developed
legal systems and they certainly dont have
robust environmental protections or labor
protections So what the IFC has done is lien
into those put those kinds of environmental
standards and labor standards into its
agreements saying you want this money to do
this development project these are the
standards that youve got to live up to
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And -- and this lawsuit is that -shy
that the entity that we loan this money to
didnt live up to the standards and its our
fault And so were being sued here
Well its going to create -- if that
kind of a suit can go forward and hopefully it
wont be able to Mr Chief Justice but if it
can its certainly going to create an
extraordinary disincentive for organizations
like ours to lien into those kinds of standards
because were going to be hoist by our own
petard
Now weve also got a robust internal
accountability mechanism where if people think
something has gone wrong on one of our
projects they can come to us and they can say
-- they can say look theres a problem here
And they -- and we investigate We take
internal remedial measures if we find theres a
problem
Well you know the factual basis for
the lawsuit is the report of our internal
accountability process
So if they can just grab that and take
it into court and make it the basis for a class
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action tort lawsuit in which they can make a
claim for all this money its going to create
a powerful disincentive for us not to engage in
that kind of self-policing activity
And I would submit that you know
even if things ultimately work themselves out
under the FSIA and I hope they -- I hope we
dont have to deal with that but even if we
do its going to take a very long time There
are going to be a lot of difficult cases at the
margin There are going to be very serious
disincentives immediately
And conversely you know were a big
fat target here These organizations have lots
of money And of course foreign plaintiffs
want to sue here They can bring a class
action They get liberal discovery They can
get punitive damages They get all of these
advantages by suing here
So instead of suing the person that
actually injured them the power plant in
India they come here and sue us
And I really think what you are going
to see here is that this is just going to
become another version of the sorts of
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foreign-cubed lawsuits that the Court has been
concerned about under the Alien Tort Statute
where the international organization is just
going to be subbed in for the foreign defendant
and its going to be subbed in in a situation
where were going to have a very significant
pile of money
And if I could just close with this
thought -- Im just going to pick up on Justice
Breyers thought -- the law in the District of
Columbia where virtually all these
organizations have been housed are
headquartered has been virtually absent
immunity under DC circuit law for decades
Thats the standard everybody has been
operating on
Nobodys suggested that anything has
gone wrong under this statute that there are
any deleterious policy consequences that the
interests of the United States are adversely
affected in any way In fact if you look at
the amicus brief from the former Secretaries of
Treasury and State they think that the policy
of the government arguing now is going to
disrupt the United States ability to function
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effectively with these organizations
It has all been fine And -- but
theyre asking you essentially to repeat a
metaphor to jump off a cliff And hopefully
it will be a soft landing But we dont know
that And it could easily result in a lot of
disruption to the good work that these
organizations do
And I guess what I would suggest is
that if thats going to happen it ought to
happen through legislation Congress can look
at this Congress can change the law if it
wants to But this has been the law for a very
long time There is no evidence that it has
done anything other than work well
And therefore I think the Court
should affirm the DC Circuit Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Four minutes Mr Fisher
REBUTTAL ARGUMENT OF JEFFREY L FISHER
ON BEHALF OF THE PETITIONERS
MR FISHER Thank you Id like to
make four points and Id like to start with the
text of the statute itself and simply say when
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Mr Verrilli talks about the Neder Doctrine and
the Common Law Doctrine that you look at the
term a terms meaning at the time of
enactment Hes mixing apples and oranges
And I think all the citations in our
reply brief should make it absolutely clear
that theres a doctrine on the one hand that
talks about incorporating a body of law and
theres a doctrine on the other hand about
giving meaning to a specific term Were in
the former camp here
And as to the point about whether the
common law was evolving at the time two
things Well stand on the papers as to the
fact that it was somewhat in flux
But the more important point is even
if it werent in flux it wouldnt matter one
wit because the other side is making a
sweeping proposition which is any general
reference to common law is fixed in time
That would disrupt any number of
federal statutory regimes from the Federal
Tort Claims Act enacted the year after this
statute the Equal Access to Justice Act the
federal governments piracy statute Federal
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Rule of Evidence 501 I could go on and on
with federal statutory regimes that reference
the common law in exactly the same way the
statute does here
The Civil Rights Act of 1866 if you
want one more All of those would come out the
other way from this Courts jurisprudence and
from all the understanding if the other side is
right about statutory interpretation
So I think the only thing the other
side has is they have a bunch of policy points
to make for this Court
Now we dont think they should
control but let me answer them So first as
to our treaty obligations So one about at the
moment of enactment My friend kept saying
that there were various agreements in place
that required virtually absolute immunity
None of the agreements use those
words Instead what those agreements said is
that certain organizations were entitled to
immunity to allow them to perform their
necessary functions Thats a very different
thing than absolute immunity
And its very different because none
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of the organizations involved were performing
Justice Sotomayor commercial activities that
were essential to their core functions not the
UN not any of the other organizations
So we werent in breach of any treaty
rights And if you have any doubt on that I
would urge you to look to the federal
governments position then and now Its not
just a brief filed in this Court
It is the position that four different
Presidential Administrations have taken The
Carter Administration right after the FSIA was
passed the George H W Bush Administration
the Clinton Administration and now the Trump
Administration have all consistently held that
the FSIA rules are incorporated into the FSIA
Next on the floodgates concern I
explained earlier and I hope you will think
about the fact that while the core activities
of the IFC might be commercial activity not
all of the IFCs activities are and certainly
not all the activities of international
organizations are
But let me add one more thing My
friend talked about big lawsuits of ruinous
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liability Well theres two very easy ways to
control that
One is to the extent any claims are
on contracts they can write their own
contracts and negotiate their own contracts
As the Solicitor General points out they can
even deal with third-party beneficiaries in
their contracts if they choose
Secondly as to tort claims they can
and in fact commonly do indemnify themselves
against tort lawsuits In this very case
their agreement indemnifies them against any
judgment and all legal fees
So these organizations have every
manner of method to deal with any potential
liability And in fact they are which sort
of belies the suggestion that they think
theyre absolutely immune from lawsuit
Finally let me say one thing about
the so-called foreign cubed problem or the
facts of this case Now obviously we think
that we would satisfy the gravamen test They
have never made that argument And if they
want to make it we can -- we can have that
conversation in the lower courts
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But bear in mind what youre being
asked to do in this case is to announce a
categorical rule for all cases dealing with
international organizations
So my friend in the Solicitor
Generals Office talked about just regular tort
slip and fall cases and the like in the United
States Let me give you one other thing to
think about
Some international organizations
actually do their work in the United States
The border cooperation -- the Border
Environmental Cooperation Commission does
wastewater treatment plants in Texas and
California
I cant think of any reason why they
would be immune from those infrastructure
projects in a way that no private business or
public government would be
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1206 pm the case
was submitted)
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1 392151723 4122 4223 433
452 462 4718 4817 5220 57
allegations [1] 5624
alleging [1] 5615 B
1108 [2] 115 32 20 651824 allow [3] 2321 246 6522 back [22] 44 61420 10513 11
1206 [1] 6822 Absolutely [3] 3113 646 6718 allowed [1] 2610 17 154422 172425 1911 226
1602 [1] 1412 Access [1] 6424 allows [3] 231220 242 4425 4524 4610 4720 5247
17-1011 [1] 34 accident [1] 2615 almost [2] 719 253 22 537 5820
1866 [1] 655 accompanying [1] 4111 already [4] 311521 323 4118 backwards [4] 514 23161724
1904 [2] 614 1725 accomplish [1] 4913 alternative [1] 5820 bad [1] 1416
1934 [1] 49 according [2] 1817 5110 Altmann [1] 1318 bank [13] 719 81822 98 2716
1945 [17] 1013 142025 151213 accountability [2] 601423 amended [1] 1615 283455 3022 324 5434
15 1617 331 3522 36710 374 accumulated [1] 3514 American [3] 112 3721 5610 banks [9] 88910 271415 2911
388 3911 4216 437 5117 across [1] 1025 amicus [4] 122 27 2011 6222 3021 5725 5818
1946 [1] 3914 Act [15] 320 6319 1412 1724 20 amounts [1] 2411 bare [1] 1524
1952 [4] 3618 3921 4012 415 422 212 301518 347 5611 64 anachronistic [3] 425 4415 47 bark [2] 405 4315
1970 [6] 3919 4013 415101520 2324 655 24 barred [2] 2689
1990s [1] 1221 action [3] 5324 61117 announce [1] 682 based [5] 2518 354 386 5619
1994 [1] 115 activities [11] 8517 195 2717 another [13] 323 144 167 1923 5719
2 2910 3122 4017 662192122 2122 378 3823 501625 5420 basic [1] 3413
20 [2] 28 2622
20-some [1] 2624
2018 [1] 111
21 [1] 3421
27 [1] 3717
288 [4] 2213 331 4616 4825
288a [3] 1915 2018 4823
288a(b [4] 2024 2111 2215 49
13
288a(d [1] 2110
288b [1] 343
288d [1] 1916
288d(a [1] 2110
288f [2] 4725 525
activity [23] 791820 81015 94
69 2551718 27182325 2914
17 3010 31211 322 553 614
6620
actors [1] 2912
acts [1] 216
actual [2] 457 5214
actually [4] 4111 596 6121 68
11
ad [1] 4612
add [3] 1424 2510 6624
addition [2] 2515 504
address [4] 417 78 2423 403
adjust [2] 1212 1720
Administration [4] 66121314
5817 6125
answer [11] 71122 10191920
1817 2514 451414 558 6514
answered [1] 436
antiquated [1] 1816
anybody [3] 3825 4014 4312
anybodys [1] 4323
anyway [1] 5011
APPEARANCES [1] 117
appendix [1] 481
apples [1] 644
applied [1] 710
applies [5] 612 2216 341415 50
6
apply [7] 1010 161 1919 2215
basically [2] 1822 5011
basis [6] 4625 471 578 5912 60
2125
bear [1] 681
became [1] 3922
become [1] 6125
becomes [1] 1815
behalf [8] 11925 241114 38 33
8 6322
behind [1] 523
belies [1] 6717
believe [1] 542
beneficiaries [1] 677
best [2] 396 423
better [1] 2019
3 15 2521 507 5512 between [2] 513 5214
3 [1] 24 Administrations [1] 1825 appreciate [1] 5622 beyond [2] 3712 3822
30 [1] 2622 Administrations [1] 6611 appropriate [1] 5111 big [5] 2223 3022 564 6113 66
31 [2] 111 4113 adopt [1] 4318 archives [1] 213 25
33 [1] 211 adopting [1] 47 area [2] 171618 billions [1] 585
4 adoption [1] 1610
advance [1] 3612
arent [1] 5112
argued [1] 92
bit [2] 363 5510
blue [1] 481
45 [1] 4421 advantages [1] 6119 arguing [1] 6224 bodies [1] 539
5 5 [1] 1612
501 [1] 651
527 [1] 3420
adversely [1] 6220
advice [1] 812
advising [1] 3525
advocated [1] 309
affairs [1] 5719
argument [24] 114 225912 34
7 5111 625 1410 1914 2010
2213 2314 337 3521 3710 46
9 4822 5889 6321 6723
arguments [2] 416 5820
body [4] 32325 425 648
border [2] 681212
both [1] 2211
bounds [1] 1714
branch [11] 1024 1481318 151
6 affected [3] 572224 6221 arising [1] 5815 161924 398 4015 5012
63 [1] 214 affirm [1] 6317 Armed [1] 63 breach [1] 665
6a [1] 481 afford [2] 296 5219 articles [1] 5819 break [1] 493
8 afraid [2] 1625 523
Africa [1] 3023
Asia [1] 3023
Asian [1] 284
Bretten [2] 4325 441
BREYER [40] 43 513162022 6
80-some [1] 2623 African [1] 285 assets [1] 585 16 717 817 912 108 1117 12
A agencies [1] 3819
agree [3] 2018 253 5518
Assistant [1] 120
Association [1] 286
22 133 147 157 238111923
24259151821 2712 282914 am [2] 115 32
agreed [1] 294 assume [3] 1221 1711 222 301619 3147 4420 4515 467 ability [4] 12121315 6225
agreement [4] 282325 5819 67 assuming [1] 277 5524 56514 5715 able [7] 1023 2423 2513 264 32
12 assumption [2] 1223 5719 Breyers [4] 164 504 581 6210 20 458 607
agreements [5] 2821 5923 65 assurance [1] 318 brief [16] 618 115 364 377918 above-entitled [1] 113
171920 assure [3] 30619 4218 41121314 482 497 511820 abroad [1] 554
agricultural [1] 84 attenuated [1] 2523 6222 646 669 absent [1] 6213
AIDS [1] 5825 authority [7] 212425 2241114 briefs [1] 4522 absolute [33] 1922 201 22310
AL [1] 13 4619 475 bring [1] 6116 20 2610 282025 3215 331215
Alan [1] 1624 available [3] 11810 412 broaden [1] 559 21 34117 3524 361622 383
Alien [1] 622 BUDHA [1] 13
Heritage Reporting Corporation Sheet 1 1108 - BUDHA
70Official - Subject to Review
building [1] 2613
bunch [1] 6511
Bush [1] 6613
business [2] 1414 6818
businesses [1] 4422
bygone [2] 181819
C California [2] 118 6815
call [1] 412
came [5] 113 1125 1223 3779
camp [1] 6411
canon [5] 159 165 1911 5055
capability [1] 529
capital [1] 5915
captures [1] 2718
Carcieri [1] 67
care [1] 5516
Career [1] 63
carnage [1] 445
carry [1] 5122
Carter [1] 6612
Case [35] 34 4189 548 6236
88161718 9162025 14116
191 2117 2511 34182122 36
2 404 4724 561821 671121
6822122
case-by-case [2] 4612 471
cases [13] 413 61 92 158 1824
269 3415 4424 452020 6110
6837
categorical [2] 4625 683
categories [1] 494
category [2] 878
certain [2] 304 6521
Certainly [7] 1313 402 575 58
14 5918 608 6621
cetera [4] 48699 5321
change [4] 305 348 4310 6312
changes [1] 46
characterization [2] 367 4512
charter [6] 2816 311920 3910
1125
Chase [1] 618
CHIEF [15] 339 20713 3349 34
24 52216 5425 5616 576 607
6318 6820
choice [2] 174 5512
choose [1] 678
Circuit [4] 1814 5717 6214 63
17
circumstances [1] 3224
citations [1] 645
cite [2] 6218
cited [2] 525 5120
citizens [1] 3216
Civil [1] 655
claim [2] 311 612
Claims [3] 6423 6739
class [3] 5324 6025 6116
classic [1] 404
clear [17] 316 1119 1515 2424
2521 2716 4021 4121 4614 50
325 511414161719 646
clearly [2] 4714 547
cliff [2] 5514 634
Clinton [1] 6614
close [3] 425 712 628
closely [1] 910
collection [1] 218
collective [3] 5391219
Columbia [1] 6211
come [11] 1115 1521 322 421
19 4417 539 5810 6016 6122
656
comes [2] 548
comfort [1] 1121
coming [6] 97 3511 4324 5013
541010
commentators [1] 5118
commercial [26] 420 791720 8
1015 9469 2551618 27317
182325 291417 3010 312 32
2 401622 66220
Commission [1] 6813
commit [3] 3323 3816 5611
commitment [1] 3924
commitments [6] 3824 422122
4312 598
committed [4] 332125 3814 39
11
Committee [1] 5823
common [17] 621 74 1419 185
67 3314 3515 439 462 479 49
10 508 6421320 653
commonly [1] 6710
comparator [1] 715
compare [2] 1915 4823
competent [1] 622
complaint [2] 561819
completely [4] 424 4415 47824
compliance [2] 409 597
comply [1] 4124
components [1] 822
concede [1] 2112
concept [1] 4416
concern [4] 1325 414 4320 66
17
concerned [1] 622
concerns [2] 268 551
concludes [1] 5218
conclusion [1] 155
concrete [1] 5710
conditioned [1] 4810
conditions [3] 5321 5618
conduct [2] 261 3217
conference [2] 54811
conferred [2] 4122 5017
conferring [1] 499
Congress [36] 1023 1125 1224
25 1317 1415 174710111217
21 18210 1924 222 231 3225
3319 34616 351417 416 42
20 439 446 4620 471013 512
532 631112
Congresss [1] 1215
connected [1] 2516
connection [1] 2523
consciously [1] 4915
consequences [3] 5021 5722
6219
consideration [1] 374
consistent [3] 46 1011 5617
consistently [1] 6615
construction [3] 3414 351313
contemplated [1] 195
context [1] 3317
Contoe [1] 1624
contract [1] 2612
contractor [1] 2613
contracts [4] 674558
contributing [1] 541
control [4] 1523 162 6514 672
convention [8] 38181920 3913
19 40713 417
conversation [1] 6725
conversely [1] 6113
conviction [1] 65
cooperation [2] 681213
core [4] 2910 3122 66319
CORPORATION [2] 16 35
correct [3] 136 1924 4725
correctly [2] 510 1822
couldnt [2] 2225 2923
counsel [4] 208 335 6319 6821
count [1] 2916
countries [3] 3623 5311 541
country [4] 399 531516 568
counts [1] 2914
couple [4] 241419 3114 4214
coupled [1] 315
course [9] 621 3422 352 3823
4123 5325 5412 575 6115
COURT [31] 1114 310 6824 15
1718 1824 2014 2721 3213 33
310 34131925 351715 361
131416 371 452324 6025 62
1 6316 6512 669
Courts [6] 523 1518 2520 4519
20 657
courts [9] 1423 2722 309 3218
531522 5414 5810 6725
create [4] 1121 6058 612
creates [1] 4617
Criminal [1] 63
critical [2] 5024 5125
critically [1] 584
Cross [1] 5823
crystal-clear [1] 2824
cubed [1] 6720
curiae [3] 122 28 2012
D DC [7] 1102124 2616 5717 58
3 6317
damages [1] 6118
date [1] 1723
dates [1] 613
day [1] 1817
DC [1] 6214
deal [10] 188 2021 2223 2425
3022 4025 4821 618 67715
dealing [1] 683
deals [1] 2123
dealt [3] 2819 552 5621
debates [1] 4314
decades [2] 5717 6214
decide [6] 527 913141923
decides [2] 1516 544
decision [3] 2520 342021
decisions [4] 5313 5525 571 58
4
decouples [1] 4813
decoupling [1] 525
decrease [1] 136
default [2] 126 1720
defend [1] 578
defendant [1] 624
degree [1] 5814
deleterious [1] 6219
denying [1] 315
Department [15] 121 56 917 18
25 198 2823 3525 36101214
402 4546 4611 472
Departments [2] 54910
dependent [2] 5623 592
depends [1] 5821
deploy [1] 5313
deployed [1] 5320
describe [1] 3615
described [1] 1510
describes [2] 3912 465
describing [1] 2218
designated [1] 2623
desperate [1] 443
detail [2] 501414
detailed [1] 5525
determination [2] 1415 4612
determining [1] 567
development [13] 271415 2845
56 2911 302124 5434 5725
5924
dichotomy [1] 1916
dictates [1] 3517
difference [1] 5213
differences [1] 493
different [20] 7323 97 171321
181 2111 3818 4020 4416 46
17 47811 517 567 594 6523
25 6610
difficult [1] 6110
diplomatic [2] 2222 418
diplomats [4] 4138 491018
direction [2] 3956
directly [2] 3122 559
discarded [1] 204
discovery [1] 6117
discussed [1] 5118
discusses [1] 114
discussing [1] 1917
discussion [1] 2017
disincentive [2] 609 613
disincentives [2] 5815 6112
dispute [3] 322 42 82
disputes [2] 261212
disrupt [2] 6225 6421
Heritage Reporting Corporation Sheet 2 building - disrupt
71Official - Subject to Review
disruption [1] 637
District [1] 6210
doctrine [8] 18581819 64127
9
dog [2] 405 4315
doing [5] 194 267 3625 4017 52
17
dollars [1] 585
domestic [3] 2612 3217 5322
DONALD [3] 124 210 337
done [3] 5610 5920 6315
doubt [2] 1913 666
doubts [2] 2511 264
down [5] 1722 182 1925 493 50
22
dozens [1] 561
draft [1] 203
drafting [2] 316 2119
drastically [1] 594
draw [2] 5113
drawing [1] 5213
driving [1] 2615
E each [3] 372324 5311
earlier [2] 5716 6618
easily [1] 636
easy [1] 671
effect [3] 61 364 382
effectively [2] 5123 631
effects [1] 5723
either [2] 94 156
elaborate [1] 5124
element [1] 355
eliminate [2] 259 476
ELLIS [31] 120 26 2091013 21
21 2212 23921 2447141719
23 2621 27481013 2881115
294820 3018 313613 328
employees [3] 214 2221 486
enact [1] 304
enacted [11] 1616 3225 3319 38
89 412325 42817 4621 6423
enacting [1] 4225
enactment [6] 75 17910 4410
644 6516
encourage [1] 3024
end [4] 425 358 421618
ended [1] 383
enforcement [1] 83
engage [3] 197 2724 613
enjoy [1] 58
enjoyed [2] 313 1210
enough [2] 2523 2921
ensue [1] 5021
ensured [1] 4220
enter [4] 3011212 329
entered [1] 2820
entire [1] 2021
entirely [3] 4617 5821 592
entities [3] 4423 5724 5818
entitled [3] 319 1922 6521
entity [1] 602
environmental [3] 591921 6813
Equal [1] 6424
equivalence [3] 4219 5113
equivalent [1] 424
era [2] 181819
especially [5] 324 1021 18419
5316
ESQ [6] 11824 2361013
essential [1] 663
essentially [3] 2124 5510 633
established [2] 351821
ET [5] 13 48699 5321
Even [30] 63 8816 107 1110 12
1620 1424 1816 19345 256
10 265 2714141415 361218
427 4815 521722 596 6168
6416 677
event [1] 5518
everybody [2] 4121 6215
everybodys [1] 277
everything [4] 96 1013 2534
evidence [3] 393 6314 651
evolve [4] 1620 431921 5424
evolves [2] 542222
evolving [2] 3313 6413
Ex [1] 1514
exact [2] 625 1916
exactly [8] 124 1714 237 3224
4211 5415 5615 653
example [6] 719 81 198 2412
3725 543
examples [2] 1025 3720
exception [5] 79 256 271925
349
excuse [1] 5418
executive [16] 1024 1481318
151161924 3410 398 4014
416 462025 475 5012
exemptions [2] 4848
exist [1] 194
existence [2] 4715 4810
expect [2] 4025
explained [3] 2722 497 6618
exposed [1] 5713
extent [3] 394 5623 673
extraordinary [1] 609
F face [2] 461423
fact [12] 2512 3123 393 464 47
13 487 5622 6221 6415 6619
671016
facts [3] 4418 5623 6721
factual [1] 6021
failed [1] 391
failure [1] 5611
fair [3] 366 373 4511
fairly [1] 5525
fall [4] 1911 2614 5819 687
far [4] 201719 437 458
fat [1] 6114
fault [1] 604
favor [2] 76 3112
federal [8] 1210 1823 642222
2525 652 667
fees [1] 6713
few [1] 723
fiduciary [1] 5612
fight [2] 582425
fighting [1] 5812
filed [3] 4114 473 669
Finally [1] 6719
FINANCE [2] 16 35
financial [2] 814 329
find [7] 2923 401415 4316 458
481 6019
fine [1] 632
fingerprint [1] 5012
first [10] 7123 102 1412 1610
1724 2324 351 5711 6514
FISHER [23] 118 2313 3679 5
12151721 10418 1381013 16
31321 173 4425 63202123
fisheries [1] 81
fit [2] 106 1520
five [3] 818 389 523
fixed [8] 212 2219 331216 495
6 533 6420
floating [1] 534
floodgate [1] 279
floodgates [3] 267 3116 6617
flux [6] 189 3523 361520 6415
17
focus [1] 3213
following [1] 5913
foolish [1] 1816
foreign [39] 3131819 7141518
812 97 1216 19720 219 234
9 2512 3219 3324 391622 42
2910 4320 489111425 4919
51319 52681019 6115 624
6720
foreign-cubed [1] 621
forever [1] 44
forgive [1] 1623
form [5] 1172123 1434
former [2] 6222 6411
forth [1] 4421
forward [8] 131424 142 2513
265 32314 606
foundation [1] 5116
founding [2] 620 548
Four [3] 632024 6610
Francisco [2] 5115 548
fraud [3] 342323 356
friend [6] 2016 2120 254 6516
6625 685
friends [7] 344 3920 4414 4510
468 4723 5022
front [2] 426 444
frozen [1] 2117
FSIA [10] 1411 15423 2718 297
5515 617 66121616
fulfill [3] 3320 422125
full [5] 354 4816 4918 522025
fully [1] 1023
function [1] 6225
functional [5] 519 538 541719
23
functions [3] 5123 6523 663
fund [2] 582425
funded [1] 555
funds [2] 196 5323
further [1] 332
future [1] 102
G gave [5] 517 124 349 382 4514
General [7] 120 322 113 1716
1811 6419 676
Generals [1] 686
generally [1] 5416
George [1] 6613
gets [1] 4820
getting [3] 923 148 5221
GINSBURG [5] 326 3520 4513
17 4821
Ginsburgs [1] 436
give [24] 56 61722 824 1018 11
21 1221115 131 15171920
3016 31814 3719 448 45415
4916 518 5417 688
given [10] 41 15122 175 1914
2211 3115 349 361
gives [4] 31117 812 1116
giving [1] 6410
Glad [1] 2423
global [1] 5824
gloss [1] 4413
goal [1] 1411
Gorsuch [6] 410 163142225
1813
got [9] 510 2317 289 467 4918
5513 5724 5925 6013
gotten [1] 3715
government [7] 127 318 3811
48911 6224 6819
governments [4] 92 4522 6425
668
governmental [1] 123
governments [11] 31319 812 9
1 12110 219 23410 2720 32
20
governs [1] 3511
grab [1] 6024
granddaddy [1] 4010
grant [8] 2023 2225 2313 246
4621 4816 5121 5822
granted [4] 4624 4878 516
granting [1] 4117
grants [2] 824 302
gratified [1] 556
gravamen [7] 25222425 5619
5722 6722
great [3] 188 2425 4025
gross [1] 4625
group [2] 710 5817
groups [2] 572224
guarantee [1] 5522
guess [6] 922 299 4213 4423
5517 639
H
Heritage Reporting Corporation Sheet 3 disruption - guess
72Official - Subject to Review
half [1] 2810 importing [1] 1419 11 595 56101314 591113 60122 61
hand [3] 4823 6479 impose [1] 5321 itself [7] 716 811 116 2416 372 1 6718
happen [4] 59910 631011 incentives [1] 142 4218 6325 lawsuits [5] 319 566 621 6625
hasten [1] 1424 include [1] 561 J 6711
headquarter [1] 1022 Including [1] 2711 lay [1] 1925
headquartered [4] 1022 2619 inconceivable [2] 43812 JAM [2] 13 34 lead [4] 153410 319
25 6213 incorporate [1] 3518 JEFFREY [5] 118 2313 37 63 least [4] 186 2410 497 5818
headquarters [2] 2615 292 incorporated [6] 325 72 169 33 21 leave [1] 420
Health [1] 5823 14 3423 6616 JONATHAN [3] 120 26 2010 leaves [1] 5512
hear [2] 33 557 incorporates [2] 5067 JR [2] 124 210 led [1] 449
heard [2] 4425 4822 incorporating [2] 509 648 judge [1] 1319 left [1] 2016
heart [2] 501516 incorporation [1] 4912 judgment [2] 4711 6713 legal [2] 5918 6713
heightened [1] 144 increase [1] 226 judgments [3] 531925 545 legislation [3] 813 175 6311
held [2] 309 6615 indeed [4] 427 187 203 Judiciary [2] 619 1724 legislative [1] 1119
helps [1] 5911 indemnifies [1] 6712 July [1] 388 lend [2] 423 2412
hewing [1] 3621 indemnify [1] 6710 jump [2] 5514 634 lending [8] 889101623 2719
historical [4] 393 441318 4512 India [4] 2623 575 6122 juridical [1] 5113 2910 5525
history [4] 316 1119 2119 2818 Indian [2] 47 68 jurisdiction [1] 5413 lends [1] 302
hoc [1] 4612 indicate [1] 3123 jurisprudence [2] 523 657 lens [1] 712
Hoffman [1] 1514 indicated [1] 5715 Justice [96] 121 339 4310 513 less [1] 229
hoist [1] 6011 indicators [1] 4720 162022 616 717 817 912 108 Letter [6] 361919 3921 403 437
hold [1] 3723 individualized [1] 1417 1117 121822 133591112 14 465
Honor [4] 2420 365 4024 494 individuals [3] 419 491017 67 156 1634142225 1812 20 level [3] 3719 387 5225
Honors [1] 558 infer [2] 351616 713 2121 238111923 24259 liability [2] 67116
hope [6] 5521 5889 6177 6618 infrastructure [1] 6817 151821 2617 272691111 28 liberal [1] 6117
hopefully [2] 606 634 initial [1] 4022 2914 2938 301619 3147 32 lien [2] 5920 6010
hornbook [1] 1010 injured [1] 6121 6 33410 34524 3520 3612 40 light [1] 3317
hornbooks [1] 43 injuries [1] 262 1619 42715 4356 4420 4513 limited [1] 1224
host [3] 2025 217 5316 inquiry [1] 358 1517 467 4721 4821 504 522 list [1] 3020
housed [1] 6212 insertion [1] 69 16 5425 5524 5651416 576 little [2] 102 5510
however [1] 572 instance [1] 2220 15 581 607 629 6318 6424 66 live [2] 5925 603
I instead [2] 6120 6520
institutions [2] 81823
2 6820
K loan [3] 820 2924 602
loaning [1] 5914 idea [4] 14816 1618 2618
identified [1] 581
IFC [10] 710 8111919 256 283
323 591320 6620
IFCs [2] 3120 6621
II [1] 446
illustrate [1] 5711
IMF [6] 283 302 37202525 388
immediately [2] 407 6112
immune [4] 215 252 6718 6817
immunities [19] 2025 2216 234
instructions [1] 5011
intended [2] 347 513
Inter-American [1] 284
interest [1] 1114
interests [1] 6220
interfere [1] 3110
internal [3] 60131922
INTERNATIONAL [37] 16 3511
17 422 72224 824 1025 1421
1921 2221 232 251 286 3222
3323 4010 421 4621 477 485
KAGAN [6] 2121 2938 42715
435
keeps [1] 4824
kept [1] 6516
key [2] 542020
kind [5] 825 453 5124 606 614
kinds [5] 716 2618 3820 5921
6010
knowing [1] 101
knows [2] 198 5810
loans [5] 2912131822 5913
lobby [1] 1023
locate [1] 1014
lock [1] 175
long [5] 45 1011 1322 619 63
14
look [32] 61315 724 911 108 13
18 168121416 1713 2021 21
19 2311 2817 311920 351 37
10 4111 4412 45119 4623 50
10 547 5511 6017 6221 6311 3815172121 391213 4118 131924 5018 51481221 526 L 642 667 4622 4848 49916 5214 5933 23 5822 623 6622 68410 labor [2] 591922 looked [4] 44 158 3020 4524
immunity [119] 312171820 419 Interpol [1] 83 landing [2] 5515 635 looking [2] 3523 212425 559 9152125 1024 interpret [1] 1017 language [8] 1017 1518 202 21 looks [3] 3618 3812 4313 11672123 1229911161925 interpretation [2] 3415 659 13 343 359 421215 lot [10] 2017 221 2814 319 446 13120 145141721 15219 16 interpreted [1] 343 last [1] 49 5516 5625 5812 6110 636 1 191922 20124 213925 223 interpreting [2] 619 359 late [1] 4120 lots [2] 420 6114 991922 2337131415 2436 intervention [1] 5322 later [3] 4916 3810 lower [3] 2722 309 6725 101125 259 26510 28152025
297 3025 3121 3251521 33 investigate [1] 6018
inviolable [1] 213
latter [1] 1717
Laughter [4] 172 2318 241 55 M
121522 3411117 3523 36110 involved [2] 149 661 20 made [10] 53 1223 1415 18910
15172224 37121319 3847 39 IOIA [21] 31115 11816 2023 22 law [46] 32425 61121 714 82 3924 469 4710 561 6723
215161722 411822 4223 434 17 2624 331120 3718 3869 1056 131516 1419 151212 mail [1] 3422
920 448 4525 463 47618 48 22 391 411921 4314 4410 46 15 1620 17151618 18567 21 main [1] 582
17 5017 516921 522025 53 18 498 593 14 3314 3515 3619 383 439 malaria [1] 591
14 5513 5720 582121 6214 65 ISMAIL [1] 13 20 4524 462 479 4911 508 53 managing [1] 81
182224 isnt [6] 1618 2513 31910 3711 22 571417 621014 631213 64 manner [1] 6715
important [5] 1324 502 5317 57 4419 281320 653 many [9] 413181818 725 1025
16 6416 isolation [1] 2020 laws [1] 306 2618 322 581
importantly [1] 257 issue [6] 1219 211116 5621 58 lawsuit [14] 1223 15225 4723 margin [1] 6111
Heritage Reporting Corporation Sheet 4 half - margin
73Official - Subject to Review
market [2] 820 2918
massive [2] 5324 545
match [1] 4418
materiality [2] 3423 355
materials [4] 372 426 4413 45
12
matter [7] 113 1716 466 5016
16 515 6417
matters [1] 5814
mean [14] 4111213 64 914 248
251 371 4211 451819 5212
5418 5617
meaning [7] 179 3315 351518
22 64310
means [4] 524 3517 421620
meant [3] 64 223 2910
measure [1] 126
measures [1] 6019
mechanism [2] 4617 6014
member [1] 5325
members [3] 486 5224 539
mentioned [2] 1813 417
mess [1] 453
metaphor [1] 634
metes [1] 1714
method [1] 6715
might [2] 718 6620
mind [2] 523 681
minimum [1] 1524
minute [2] 3722 5124
minutes [2] 523 6320
mission [1] 444
mistake [1] 53
Mister [1] 293
mixed [1] 923
mixing [1] 644
modern [1] 1817
moment [5] 4115 105 3921 65
16
monetary [1] 411
money [14] 41223 820 2413 30
7 541 569 59141423 602 612
15 627
months [1] 389
morning [2] 2017 3116
most [6] 232 257 3316 4722 53
16 551
move [3] 3611 515 535
moving [1] 3623
much [5] 141 2517 3112 395 40
21
multi-country [1] 5211
multilateral [1] 5725
multinational [1] 2911
must [4] 251718 351616
N Nader [2] 341921
narrow [1] 4915
narrower [1] 499
nations [4] 418 397 4011 5412
natural [1] 354
nature [2] 123 2924
necessary [4] 1720 3510 3912
6523
Neder [1] 641
need [7] 1116 306 3124 3268
3712 4318
needed [2] 291 3823
negligence [2] 56711
negotiate [4] 1214 143 2825 67
5
negotiated [3] 115 1220 3914
never [1] 6723
New [1] 2616
next [2] 34 6617
nexus [2] 2517 553
nobody [2] 59 925
Nobodys [1] 6217
non-commercial [1] 85
none [3] 4411 651925
normal [1] 3414
nothing [3] 101 2411 404
notwithstanding [1] 487
Number [6] 242424 2713 3115
4424 6421
numbers [1] 2621
O OAS [4] 113 1221 282224
OBB [3] 2520 5618 587
objective [1] 4914
obligations [5] 332022 409 41
24 6515
obvious [1] 4624
obviously [2] 4710 6721
occurred [2] 2622
occurs [1] 2519
October [1] 111
Office [1] 686
officers [2] 214 2220
official [1] 215
officials [2] 192021
often [1] 5917
Okay [5] 512 2323 24518 467
old [1] 187
once [2] 4315 4620
one [47] 41823 5118 6217 819
1317 14369 1622 173 1868
1113 191218 211116 2424 25
10 273 3013 3118 3618 3812
4014 4313 4722 4823 4925 50
67 54613 5512 6015 64717
65615 6624 67319 688
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296 417 6510
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15
ordered [1] 5718
Ordinarily [1] 296
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Organization [16] 1124 1421 19
321 372021 4020 4118 4622
477 4819 519 5223 5824 623
organizations [1] 2614
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2225 824 101421 1111422
214 2221 232 2518 261923
281319 3120 3222 3323 3711
4010 4219 4427 4851424 49
17 5018 5141222 52611 53
121724 5712 596 609 6114
6212 6318 6521 661423 67
14 68410
original [2] 1118 203
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23 95 13125 141019 1715 18
21 1924 2113 224 23312 24
16 2912 3212 3446 3622 39
20 441114 4511 469 4723 50
22 5221 6315 64918 657810
664 688
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6310
ourselves [1] 578
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4089 4325 449 5122 5411 55
9 581015 5977 616 656 676
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21 542324
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P pm [1] 6822
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PAGE [5] 22 3420 3717 4113
481
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6613
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Peru [1] 1514
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38 201219 6322
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Presidents [3] 1212 2214 475
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prove [1] 3825 reduce [2] 3410 476 risk [1] 5710 side [20] 62625 8619 95 131
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Solicitor [4] 120 113 676 685 quasi-sovereign [1] 3018 Relations [1] 5120 San [2] 5115 548 sometimes [6] 1113 166 1816 question [13] 71112 107 1122 relief [2] 41112 satisfy [1] 6722 194 4545 1425 164 1822 2421 2514 34 remain [1] 1311 save [1] 205 somewhat [1] 6415 13 4517 4721 559 remains [1] 137 saying [11] 98 292024 3811 40 somewhere [1] 2622
questions [6] 78 109 1317 18 remedial [1] 6019 15 4317 5217 5511 5610 5923 sorry [2] 1921 2319 17 333 436 remedy [2] 62223 6516 sort [10] 1323 26811 27222325
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2410 331 343 4616 4725
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see [10] 9142223 2118 3221 39
6 451 546 5911 6124
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511113 527924
special [6] 88 1024 115 1219
371415
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20 571 6410
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24 361113162123 4318 4612
471617 4912 5344 5422 62
15
standards [7] 4956 59222225
60310
Stanford [1] 118
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14 3922 402 4422 4545 4611
471 54913 6223
statement [1] 378
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11312 2011 25219 2620 271
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States [1] 6225
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18
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129 167791111 35616 3715
382823 46152124 4819 49
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3317 3415 359 4720 501 58
22 6422 6529
Steamboat [2] 61724
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4
suddenly [1] 3025
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1314 15311 215 233 251322
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464
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Tenth [1] 1814
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Texas [1] 6814
text [16] 31421 51922 191315
15 2018 3313 352235 4720
4812 6325
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581417 601719 6479 671
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4019
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67911 686
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17321 181 2025 2113 49323
535 6413 671
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13 617 6221418
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4121
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2124
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6520
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2224 324 3720 44555 5823
5915
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York [1] 2616
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which is first of all that the law had to be
incorporated at the time of suit and second of
all that there was something different about
the common law as to a statute at the time of
the enactment So all of the textual stuff is
in our favor
Now youve also asked me two other
questions and let me address them So starting
with the commercial activity exception as
applied to a group like the IFC when you
answer -- when you think of that question its
a question of how close you -- you put the lens
into whats going on here
So if you just take a foreign state as
the -- as the comparator here a foreign state
itself does all kinds of things Like you
said Justice Breyer they are not commercial
activity But a foreign state might have a
bank for example that does almost all
commercial activity
And so the same thing is true with
international organizations and let me answer
that in a few different steps So first of
all look at the sweep of international
organizations Many do things like regulation
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for example managing fisheries They do
things like dispute resolution law
enforcement Interpol They do scientific
research and agricultural research All of
those things are non-commercial activities on
the other side
Then you have the category the
special category of lending banks but even
within lending banks not all the things that
lending banks do are commercial activity The
IFC itself on its website talks about how it
gives advice to foreign governments about
legislation that ought to be passed regulating
financial transactions with the private sector
That is not probably commercial activity
And then even within lending
activities Justice Breyer just take the World
Bank it has five separate institutions Now
the IFC is on one side What the IFC does is
-- is loan money at market rates for profit for
private sector projects There are other
components of the World Bank and there are
other lending institutions that are
international organizations that give grants
for public works programs or that do the kind
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of spending that governments do And the
governments argued in past cases and we think
theyre probably right that that is not
commercial activity either
So when the other side says well
everything is commercial activity its no
different than the foreign state coming to this
and saying well if the Bank of Switzerland
does commercial activity then were -- were
stuck Well no no no its just how closely
you look at the problem
JUSTICE BREYER What about -- the
third was if we -- if we decide with you -- if
we decide against you see that would mean
there is sovereign immunity But there
shouldnt be in a particular case the State
Department can waive it and they have to be -shy
response
But if we decide for you and then
theres a case where there really shouldnt be
sovereign immunity or rather -- rather there
really should be I guess -- see thats what
Im getting mixed up You see if we decide
against you and they really should have
sovereign immunity in this case nobody can do
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anything So knowing nothing about the
future it seems a little safer the first
than the second
MR FISHER Well Im going to turn
back in a moment to the law and why that just
cant fit within the law but as to just the
policy question youre asking me even there -shy
JUSTICE BREYER Well you can look -shy
the reason I ask policy questions is because
the hornbook said yes apply it as of now as
long as its consistent with the purpose of the
statute And the purpose of the statute going
back to 1945 and the UN and everything was
to get these organizations to locate here
So its not just policy for policy
Its policy for purpose And purpose is tied
into how you interpret the language
MR FISHER So let me give you the
practical answer and then the purpose answer
On the practical answer
organizations especially if they want a
headquarter here or are headquartered here are
fully able to -- to lobby Congress or the
executive branch for special immunity And
there are many examples across international
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organizations
Take the Organization of American
States OAS And the solicitor general
discusses this in -- the organization in its
brief In 1994 it negotiated a special
immunity provision for itself to get more than
the ordinary restrictive form of immunity that
was available under the IOIA
So there are -- there are pathways
available and they have been used even more
so
Remember the United States as you
say has a -- has a sometimes principal
interest in these organizations So it is
quite responsive to them when they come and
say We need more than the IOIA gives us
But Justice Breyer let me turn back
to the -- the original purpose which was the
legislative history is quite clear on what the
purpose was As you say this was partly to
create a form of immunity to give some comfort
to these organizations But the question is
what form of immunity did they ask for and what
did they get
What they did is they came to Congress
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and said treat us like foreign governments
Give us immunity as Congress put it in a
Senate report of a governmental nature And
so what did Congress do It gave them exactly
what they asked for It said were going to
treat you as a default measure like a foreign
government
And remember the words of the
statute are same immunity Same immunity
as is enjoyed by federal governments So were
going to give you the same immunity subject to
the Presidents ability to just -- adjust it
and subject to your own ability and your own
treaty to negotiate for more and subject
thirdly to Congresss ability to give you some
immunity that you dont have even by way of
your own treaty
JUSTICE SOTOMAYOR Can we go to that
issue raised in part The special immunity I
know was even negotiated by the UN I think
in the 1990s and OAS and others but assume
that were in your regiment and Justice Breyer
made the assumption that if a lawsuit came to
us now under your theory and it was limited
immunity that the President or Congress could
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give immunity to the other side
I dont think so
JUSTICE BREYER No its the
opposite
JUSTICE SOTOMAYOR The opposite The
President cant decrease it correct So that
problem still remains with your -shy
MR FISHER Well -shy
JUSTICE SOTOMAYOR Yeah
MR FISHER -- I think it -- it may
or may not remain Justice Sotomayor
JUSTICE SOTOMAYOR Thats my -shy
MR FISHER Certainly we could -- we
would say we can go forward on this suit
because -- because there is no such law
If that law were passed youd have
two questions One is did Congress make it
retroactive And you look to Altmann to think
about how to judge the retroactivity of
immunity provisions And then if it were
retroactive whether that were permissible
But you know were a long way from
-- from that sort of a situation I think the
important thing going forward and this is I
think what the concern is on the other side
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is not so much about this case but about
incentives and policies going forward they
have every opportunity to negotiate in one form
or another or to procure a heightened form of
immunity
And Justice Sotomayor let me say one
more thing to you and Justice Breyer about you
know the idea of the executive branch getting
involved This is one of the problems I
submit with the other sides argument
Remember part of the goal of the FSIA
in the first section of the Act in Section 1602
is to get -- is to get the executive branch out
of the immunity business
Congress made the determination that
it was a bad idea to have every case turning on
individualized suggestions of immunity and
executive branch political policy And so the
other side by importing the common law of
1945 would reintroduce that problem into
international organization immunity in a way
that we dont think would be very good
politically or very workable in the courts
And Id hasten to add that even under
the rule of 1945 if the question were what
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does the executive branch think about any given
lawsuit or any given immunity for any given
type of suit that would just lead you right
back to the FSIA and it would lead you back to
the same conclusion that we submit to you here
So either pathway whether Justice
Breyer you start with the way youve always
looked at cases with the word is and the
word same and the reference canon that Ive
described and say all of those things lead you
to a time of suit rule or if you start with
the law of 1945 and say what was the law in
1945
Well Hoffman and -- in Ex Parte Peru
were clear that the law of 1945 was the
executive branch decides and its not for the
Court -- this is -- Im going to give you the
Courts own language -- its not for the Court
to give immunity where the executive branch has
not seen fit to give it
And if that were the test youd come
right back to where you -- where I started
here which is that the FSIA would control or
at the bare minimum the executive branch
position in this lawsuit on the type of
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immunity that ought to apply in this situation
would control So -shy
JUSTICE GORSUCH Mr Fisher if I can
pick up on Justice Breyers question The
reference canon I take all -- all of your
points but sometimes lets say we have a
statute that -- that refers to another statute
Usually we would look at the second
statute thats being incorporated as of the
time of -- of the adoption of the first
statute Right So if -- if this statute were
to say go look at Section 5 -shy
MR FISHER Right
JUSTICE GORSUCH -- we wouldnt look
at it the way its been subsequently amended
Wed look at it as it was originally enacted in
1945
Why isnt that -- that idea pertinent
here you know when we refer to a specific
law we dont take it to evolve over time
MR FISHER So for two reasons
Justice Gorsuch and one of them if youll
forgive me is going to be something you said
in the Alan Contoe opinion
JUSTICE GORSUCH I was afraid of
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that
(Laughter)
MR FISHER But for two reasons One
is Congress has a choice to make when it writes
legislation It can lock in a given rule by
setting a specific statutory provision and says
thats the rule we want just like if Congress
uses a particular word at the time of the
enactment the meaning of that word at the time
of enactment would be what Congress -- wed
assume Congress wanted
Or Congress could do something
different which is to say look were not
sure exactly of the metes and bounds of the
law Were just going to tie it to this other
area of law as a general matter And thats
what Congress did here It did the latter
So it took an area of law as a point
of reference and said Just use that as the
default rule and then adjust as necessary And
those are just two different pathways Congress
can go down
And they date as I said all the way
back to the First Judiciary Act there in the
Sutherland treatise all the way back to 1904
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and so theres just two different pathways
Congress can go down
And it makes perfect sense I think
in a situation like this especially where you
have a common law doctrine being referenced at
least a common law at the time and one that
was indeed not just any old common law
doctrine but one that was in a great deal of
flux at the time So it made every reason -shy
it made every good reason for Congress to have
a general reference not a specific one
And then the second reason Justice
Gorsuch is the one you mentioned sitting on
the Tenth Circuit which is that as time goes
by it becomes all the more stilted or
antiquated or even foolish sometimes to try to
answer questions in the modern day according to
what some bygone era doctrine would have
required and especially a bygone era doctrine
like this
If I understand the other sides
position correctly basically the question
theyre having -- they would want every federal
court to ask in these cases is what would the
Truman Administrations State Department have
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wanted to do in this case
And when you have things like this
which didnt even -- an organization that
didnt even exist at the time sometimes doing
activities that werent even contemplated at
the time things like sovereign wealth funds
which foreign sovereigns now engage in for
example who knows what the State Department
would have thought then
I think theres every reason then to
fall back on the reference canon And if I can
say one more thing before reserving my time if
you have any doubt about just the plain text
argument Ive given you I would urge you to
compare the text in Section 288a to the text -shy
Section 288d which has the exact dichotomy
that -- that Ive been discussing today
One subsection subsection (a) says
that the same immunity rules apply and
subsection (b) says that foreign officials -shy
Im sorry international organization officials
are entitled to absolute immunity
So this is yet another reason why if
the other side were correct and if Congress had
wanted to lay down the rule they did why would
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they not have just used the absolute immunity
language in subsection (b) of subsection (d)
and that indeed was the original draft of
this act that was discarded
So I could go on but Id rather save
the rest of my time for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Ellis
ORAL ARGUMENT OF JONATHAN ELLIS FOR
THE UNITED STATES AS AMICUS
CURIAE SUPPORTING THE PETITIONERS
MR ELLIS Mr Chief Justice and may
it please the Court
If I could Id just like to pick up
right where my friend left off Theres been a
lot of discussion so far this morning on the
text of Section 288a We agree that the
Petitioners have the far better reading of that
phrase in isolation but I think it really
settles the deal when you look at the entire
structure of the Act
The -- the IOIA doesnt just grant
immunity in Section 288a(b) but it provides a
whole host of immunities and it does it in two
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different ways In several different
provisions the Act sets a fixed rule of
immunity So archives are inviolable and
officers and employees of the organizations are
immune from suit with respect to their official
acts
And then there are a -- a host a
collection of three provisions that set the
immunity by reference to foreign governments
Theyre Section 288a(d) Section 288d(a) and
theres Section 288a(b) the one at issue here
Respondents concede that the
referential language in those other two
provisions do refer to the state of the law as
it is today
Its only the one thats at issue in
this case that they say was frozen We dont
see how that can be and thats particularly
true when you look at the drafting history that
my friend referred to
JUSTICE KAGAN Mr Ellis before you
get to that another part of the structure is
this provision that deals with presidential
authority and thats essentially a roll-back
authority of immunity
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Doesnt that make a lot more sense
that provision if you assume that Congress
meant for there to be absolute immunity In
other words the presidential authority is a
one-way ratchet The President can only under
this provision roll it back It cant increase
it
So to me if I -- if -- if -- if -shy
if the immunity -- if the immunity is less than
absolute you would think that they would have
given the presidential authority both ways
MR ELLIS Sure The reason that
argument doesnt work is because Section 288
the Presidents authority under that provision
doesnt just apply to Section 288a(b) It
applies to all of the immunities provided by
the IOIA
And as I was just describing some of
those are fixed immunity rules that are not
absolute And so for instance the officers
and employees of international organizations do
not receive diplomatic immunity That was a
big deal at the time
And -- and yet the President cant -shy
couldnt grant that up I think what that
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provision shows is that Congress wanted to
provide international organizations at most the
immunity from suit and other privileges of
immunities that foreign governments received
and not more so
And yet Respondents are here today
asking you for exactly that more immunity -shy
JUSTICE BREYER But on that -shy
MR ELLIS -- than foreign
governments receive
JUSTICE BREYER But look whatever
other things it refers to the provision allows
the President to waive immunity not to grant
immunity And your argument is they have
immunity Right
Do I have -- I get this backwards
This is the third time Ive got it backwards
(Laughter)
JUSTICE BREYER Sorry The provision
allows the person to be sued Is that right
MR ELLIS It does allow them to be
sued
JUSTICE BREYER Okay So I was
right I had it backwards the first time but
not the second not the third all right
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(Laughter)
JUSTICE BREYER It allows the
President to waive the immunity
MR ELLIS Thats right
JUSTICE BREYER Okay It doesnt
allow him to grant the immunity
MR ELLIS It does in a sense I
mean -shy
JUSTICE BREYER But the power to
waive the immunity at least in this section
amounts to nothing if they have no immunity
because for example all they do is lend
money
MR ELLIS So -- so a couple -shy
JUSTICE BREYER Thats -- thats -shy
and the other way it seems to work itself out
MR ELLIS Understood
JUSTICE BREYER Okay
MR ELLIS A couple responses to
that Your Honor
JUSTICE BREYER Thats the question
I think
MR ELLIS Glad to be able to address
that Number -- number one just to be clear
we -- they do have a great deal of immunity I
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mean foreign -- international organizations
and foreign states are presumptively immune
And I would agree with almost everything
that -- maybe everything that -- that my friend
said about why the commercial activity
exception even with regard to IFC and -- and
most -- more importantly with regard to the
vast sweep of these organizations is not going
to eliminate immunity
I would add one more is that even a
case like this we have serious doubts I
think -- we think in fact from what we know
this suit isnt going to be able to go forward
regardless of the answer to the question
presented because in addition to having -- to
being connected in some way to commercial
activity there must be a much stronger nexus
It must be based on commercial activity that
occurs in the United States
We think the Courts decision in OBB
makes clear that the way you apply that is to
ask Whats the gravamen of this suit Its
not enough to have some attenuated connection
but whats the gravamen
And the gravamen of this suit as we
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understand it is -- is tortious conduct that
occurred in India injuries that occurred in
India And we dont think -- we have serious
doubts that this is going to be able to go
forward even under restrictive immunity
And so we do not think that what were
doing is opening the floodgates here rather
that the sort of concerns that would be barred
-- cases that would be barred by Respondents
absolute rule of immunity and would be allowed
by ours are -- are sort of quintessential
domestic disputes contract disputes with your
contractor who renovated the building the slip
and fall at the -- at the organizations
headquarters or the driving accident on the
streets of New York and DC
JUSTICE SOTOMAYOR Do you have -- do
you have any idea about how many of these kinds
of organizations are headquartered in the
United States
MR ELLIS I think the numbers are in
the 20 to 30 range Theres about -- somewhere
80-some organizations that have been designated
for protection under IOIA and 20-some that have
-- I think are headquartered in the United
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States
JUSTICE SOTOMAYOR That are
commercial like this one
MR ELLIS No no no No I did
not -- no
JUSTICE SOTOMAYOR Were -shy
everybodys assuming -shy
MR ELLIS Right
JUSTICE SOTOMAYOR -- a floodgate
MR ELLIS Sure no There are -shy
JUSTICE SOTOMAYOR Including Justice
Breyer
MR ELLIS -- there are a number of
development banks but even then even -- even
the development banks even if you talk about
the World Bank its not clear that those
commercial activities are the sorts that the -shy
the FSIA captures with the commercial activity
exception Lending there is to sovereign
governments
And -- and as the Court has been -- as
lower courts have explained that sort of
commercial activity is not the sort that a
private party could engage in So its not the
sort that the commercial activity exception
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picks up
JUSTICE BREYER Well I -- I have the
IFC the IMF the World Bank the
Inter-American Development Bank the Asian
Development Bank the African Development Bank
the International Development Association So
I -shy
MR ELLIS Sure I -shy
JUSTICE BREYER -- Ive got -- thats
only half of them
MR ELLIS Thats -- that -- Im not
sure what percentage that is I want to point
out that some of those organizations -shy
JUSTICE BREYER There are a lot
MR ELLIS -- have their own immunity
provision in the -- in their charter And so
thats what we think -- if you look at the
history thats what -- thats how it has been
dealt with for organizations that require
absolute immunity Weve entered into
agreements
I would point again to the OAS
agreement where the State Department is just
crystal-clear that what OAS did in that
agreement was to negotiate absolute immunity
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because they thought thats what they needed in
order to put their headquarters here
JUSTICE KAGAN But Mister -shy
MR ELLIS We agreed to that and we
said But hey this is not our usual
practice Ordinarily we -- we afford only
restrictive immunity We point to the FSIA
JUSTICE KAGAN Mr Ellis I -- I
guess Im not sure I -- I quite understood what
you meant As to the core lending activities
of these multinational development banks in
other words making loans where private actors
would not make loans do you have a view as to
whether that counts as a commercial activity or
not
Did you say that that would not count
as a commercial activity because theyre making
loans that the -- that the private market would
not make
MR ELLIS No Im -- Im not saying
that its -- that its enough that theyre
making loans that a -- that a private -- they
couldnt find a private party to provide Im
saying if the nature of the loan is such that
its -- its not the sort of transaction that a
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private party would enter into so think about
the IMF that grants -- that lends to sovereigns
and they do so on the requirement that the
sovereign enact certain restrictions -shy
regulations and change their -- their -- their
laws in order to assure that they dont need
the money again
That is the sort of thing thats been
held by lower courts and weve advocated is
not a commercial activity Thats just not the
sort of transaction that a private party can
enter -- enter into Its not just that a
private party didnt Its that -- that no one
-- thats not something that you can do
Thats a sovereign act
JUSTICE BREYER But can you give
me -shy
MR ELLIS Or a quasi-sovereign act
JUSTICE BREYER -- anything to assure
me because when I looked through this list I
thought that there were development banks like
the World Bank which is a pretty big deal as
well as in Asia in Africa were trying to
encourage development all over the world and
suddenly by removing the sovereign immunity
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because the plaintiff will claim this is a
commercial activity
MR ELLIS So -- so -shy
JUSTICE BREYER And youre not
denying it
MR ELLIS And so -shy
JUSTICE BREYER So what is the
assurance that the government can give us that
this isnt going to lead to a lot of lawsuits
and this isnt going to interfere with perhaps
activity that the United States traditionally
has been very much in favor of
MR ELLIS Absolutely Let me -- let
me give you a couple things I think weve
given you a number of -- of points already this
morning as to why we dont think the floodgates
are going to open
If -- if theres one more Ill say
just look at the -- the charter of these
organizations Look at the IFCs charter
They already waive suit waive immunity for
suits going directly to their core activities
They -- they in fact indicate that they -shy
they need to waive suit in these suits
And so I -- I think when youre
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talking about what are the suits that are going
to come up under commercial activity many of
them are already going forward because the IFC
and the World Bank and others have waived their
immunity
JUSTICE GINSBURG And they need to
because
MR ELLIS They need to because no
ones going to enter into a financial
transaction with them if they -- they know they
cant sue if it -- if it goes south
The other thing -- I want to also
focus the Court on the -- on the suits that we
know are not going to go forward on the
absolute immunity side Were talking about
suits by -- by US citizens and residents
about domestic conduct and theyre seeking
redress in US courts
These are the suits that foreign
governments are -- are able to be sued on and
dont have immunity And we dont see any
reason why international organizations should
not also be subject to suit in those
circumstances and we think thats exactly what
the Congress was trying to do when it enacted
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Section 288 in 1945
If there are no -- no further
questions we ask the Court to reverse
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Verrilli
ORAL ARGUMENT OF DONALD B VERRILLI
ON BEHALF OF THE RESPONDENT
MR VERRILLI Thank you Mr Chief
Justice and may it please the Court
The IOIA prescribes a standard of
virtual absolute immunity that is fixed and not
evolving We know that because the text
incorporated common law terms that had a
settled meaning of virtually absolute immunity
and because a fixed standard makes the most
sense in light of the statutory context and
purpose
Now the reason that Congress enacted
the IOIA was to fulfill treaty obligations that
committed us to provide virtually absolute
immunity Those treaty obligations did not
commit us to treat international organizations
the same as foreign states were treated They
committed us to the substantive standard of
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virtually absolute immunity
And therefore if -- if -- if the
language in section 288b is interpreted in the
way my friends on the other side suggest -shy
JUSTICE SOTOMAYOR So why didnt
Congress say that the way it did in the other
provisions of this Act And if it intended
that in no change it could have said it and
given the very exception it gave which is that
the President or the executive could reduce
immunity which was the standard at the time
MR VERRILLI So let me start with
the basic question We think if the Court
applies the normal rules of construction that
it applies in statutory interpretation cases
that Congress did say that it was providing
virtually absolute immunity
And I think a case in particular that
I would point the Court to is the Nader
decision 527 US and in particular to page
21 of the Nader decision Thats a case -shy
that case of course was about whether mail
fraud and wire fraud incorporated a materiality
standard This is an opinion by Chief Justice
Rehnquist unanimous for the Court on this
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point The Court said first we look to the
text of course and when looking to the text
if we -- if -- and in looking to the text
based solely on a natural reading of the full
text materiality wouldnt be an element of the
fraud statute
And then the Court says But that
does not end the inquiry because in
interpreting statutory language theres a
necessary second step And this is -- Im
coming to the point that I think governs here
which is that it is a well-established rule of
construction a rule of construction that
where Congress uses terms that have accumulated
settled meaning under the common law a court
must infer must infer unless the statute
dictates otherwise that Congress means to
incorporate the established meaning of those
terms Now the -shy
JUSTICE GINSBURG What about the
argument that there wasnt an established
meaning in -- what was it -- 1945 that it -shy
the -- the status of the immunity was in flux
It had been absolute but then we were going
over -- the State Department was advising the
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court whether immunity should be given in a
particular case
MR VERRILLI Theres a bit of a
suggestion to that effect in the brief of the
United States Your Honor but I would
respectfully suggest that is not a fair
characterization of where things stood in 1945
at all
It is true that some people within the
State Department in 1945 thought that immunity
should move to a more restrictive standard but
the Justice Department would not even advance
that standard in this Court at the request of
the State Department and this Court did not
describe the immunity as being in flux This
Court said the standard was virtually absolute
immunity
If one looks even in 1952 at the Tate
Letter the Tate Letter didnt say the law was
in flux in the United States It said the
United States was hewing to the standard of
virtually absolute immunity but other
countries were moving towards a standard of
restrictive immunity and therefore we ought
to reconsider what were doing
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So I just -- I mean the Court can
read these materials for -- for itself but I
just respectfully do not think its a fair
consideration of where things stood in 1945 at
all
And then if I could Id like to pick
up on a related point that came up in the brief
of the United States Its another statement
in the brief of the United States and it came
up in argument today that look this really
isnt a problem because for those organizations
that need immunity that goes beyond the -- the
restrictive immunity weve always understood
that they get -- they can go get a special
statute and theyve gone and gotten special
statutes
The United States says on page 27 of
its brief precisely because the IOIA didnt
provide that level of immunity they give these
three examples IMF World Trade Organization
and Organization of American States
Id like to take a minute and go
through each of them because it doesnt hold up
with respect to each of them With respect to
the IMF for example it is true the IMF you
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know it has a -- has a treaty There was a
statute that gave that treaty effect under US
law which ended up providing for absolute
immunity
But it cant possibly be that that was
undertaken based on any sense that the IOIA
didnt provide that level of immunity because
the IMF statute was enacted in July of 1945
and the IOIA wasnt enacted until five months
later So it cant possibly substantiate what
the government was saying
If one looks at the WTO treaty it is
true with respect to that treaty that it
committed us to a very wide scope of
immunities It said that the United -- that
the United States will commit to providing all
or virtually all of the immunities provided
under a whole different UN convention the
UN convention on specialized agencies
Now that convention has all kinds of
tax immunities and property immunities that go
way beyond what the IOIA provides So of
course they needed another statute in order to
make those treaty commitments That doesnt
prove anything about whether anybody thought
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that the IOIA failed to provide virtually
absolute immunity
In fact the historical evidence I
think really to the extent it points in any
direction it points very much more in our
direction And the best way to see that is
with respect to the way the United Nations was
treated under -- by the executive branch in
this country
Now we signed the UN charter in
1945 committed us to provide what the charter
describes as the necessary immunities Then
the UN Convention on Immunities was
negotiated in 1946 which said that the UN
should get virtually absolute immunity Not
the same immunity as foreign states virtually
absolute immunity
Now the United States did not ratify
that convention until 1970 So on the theory
that my friends on the other side have from
the moment of the Tate Letter in 1952 when
foreign state immunity became restrictive and
not virtually absolute anymore we were in
violation of the commitment we made in the UN
charter
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Now if that was true you would
certainly expect the State Department A to
address it in the Tate Letter but theres
nothing in there Its a classic case of the
dog that didnt bark And B you would expect
them to try to do something about it like get
the UN Convention ratified immediately
because otherwise we were going to be out of -shy
out of compliance with our obligations to the
granddaddy of all international organizations
the United Nations
But theres not a -- from 1952 until
the ratification of the Convention in 1970 you
cant find one word by anybody in the executive
branch ever saying that What you do find -shy
JUSTICE SOTOMAYOR What commercial
activities was the UN doing at that time
MR VERRILLI Well -shy
JUSTICE SOTOMAYOR I know today its
a very different organization but its not
clear to me that there was much going on that
was commercial at its initial stages
MR VERRILLI I take that point Your
Honor but what I would say in response is that
there was a very great deal of sensitivity
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about the whole package of -- of immunities
that were available to the UN and its
diplomats and its -- and its workers
And there was concern all along from
1952 to 1970 that -- that -- where the
executive was urging Congress to ratify the
convention but the only things ever mentioned
were the diplomats -- immunities for diplomatic
individuals
And then when you get to 1970 and you
actually look at the Senate report accompanying
the ratification this was not in our brief
but its at page 31 of the brief of the -- of
the scholars who filed the brief in support of
us It quotes the Senate report from 1970 and
what the Senate report says is were not
granting the UN any -- the UN as an
organization any immunity it didnt already
have under the IOIA
So as late as 1970 it was just quite
clear that everybody understood the IOIA
conferred virtually absolute immunity And of
course thats because it was -- it was enacted
to comply with our treaty obligations
It wasnt enacted to make sure that
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come what may that international organizations
would get treated the same as foreign states
That is -- you know thats the best way to
think about it is its just a completely
anachronistic way of thinking about the body of
materials in front of you
JUSTICE KAGAN But even what you just
said Mr Verrilli it wasnt enacted to make
sure that foreign organizations would get
treated the same as foreign states
I mean thats exactly what the
language of the thing says
MR VERRILLI Well so I guess a
couple of things about that I think the right
way to think about the language Justice Kagan
is that it was a means to an end in 1945 when
it was enacted
It was not the end in itself to assure
equivalence of treatment come what may It was
the means by which Congress ensured that it
would fulfill its treaty commitments which were
-- and those treaty commitments were to provide
virtually absolute immunity
And we know the Senate report says
were enacting this provision to fulfill our
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treaty commitments And our treaty
commitments again were not to treat them the
same They were to provide virtually absolute
immunity So -shy
JUSTICE KAGAN Do you think it was -shy
you answered Justice Ginsburgs questions about
how far we were from the Tate Letter in 1945
but do you think it was inconceivable to
Congress that the common law of immunity would
change
MR VERRILLI Well I -- I -- I cant
say that it would be inconceivable to anybody
but what I can say is if one looks at the
debates surrounding the passage of the IOIA
is once again its a dog that didnt bark
You cant find a single person
anywhere saying anything remotely like the
proposition that we need to adopt a standard
that will evolve over time because we have a
concern that foreign sovereign immunity law
will evolve over time
That just was not any part of
anybodys thinking at that time They were
trying -- you have to remember this is coming
out of the Bretten Woods system We have
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Bretten Woods We set up all these
organizations
They have a -- they have a desperate
mission in front of them to try to rebuild the
world -- the world after the carnage of World
War II Theres a lot of pressure on Congress
to get these organizations up and going and
give them the immunity we promised them so they
can go out and do their work Thats what led
to the enactment of the IOIA
It was none of these other things as
I said I really think if you look at the
historical materials its the -- the gloss
that my friends on the other side are trying to
put on it is completely anachronistic
Theyre taking a different concept
that theyve come up with now and trying to
retrofit the historical facts to match it and
it just isnt right
JUSTICE BREYER Is that -- is that -shy
the Russians at that time 45 and so forth
were putting all these businesses into state
entities So my guess is there were -- there
were a number of cases and what I thought I
heard Mr Fisher say is if we really go back
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and look at this well see that the status quo
before this passed was not absolute immunity
but the status quo was a kind of mess where
sometimes the State Department would say give
them immunity and sometimes the State
Department would say not
Now what is the actual situation as
far as youve been able to find it
MR VERRILLI Well I dont -shy
respectfully with respect to my friends on the
other side I dont think thats a fair
characterization of the historical materials
JUSTICE GINSBURG Thats the same -shy
the answer you gave to me is the answer you
would give to Justice Breyer
MR VERRILLI Yes
JUSTICE GINSBURG Same question
MR VERRILLI Yes I mean its just
not there I mean look at what this Courts
cases said This Courts cases didnt say
anything like that
The -- the -- the governments briefs
to this Court didnt say anything like that
When this Court has looked back on the law in
Verlinden and in Samantar it hadnt said
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anything like that It said the standard was a
common law standard of virtually absolute
immunity
And thats in fact how the Tate
Letter describes it too And then as a process
matter -shy
JUSTICE BREYER Okay I got it
MR VERRILLI -- my friends on the
other side have made this argument that well
our position would also require you to go back
to the process of the State Department making
an ad hoc case-by-case determination but
thats wrong too
And thats clear on the face of the
statute that its wrong And the reason -- and
-- and thats right in Section 288 This
creates an entirely different mechanism
What the -- what the IOIA says is that
-- that the President shall have the authority
under executive order once Congress has
enacted a statute to grant an international
organization the privileges and immunities
And if you look at the face of the
statute its obvious that they are granted on
a categorical basis in gross by an executive
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order not on a case-by-case basis by the State
Department when -- when a lawsuit is -- or when
a -- when a lawsuit is filed
And then similarly in terms of the
Presidents authority as to an executive order
to reduce or eliminate the -- the immunity of
an international organization that -- its -shy
again its completely different than the
situation that -- than the common law process
at work So obviously Congress made a
judgment that it was going to put a different
structure and system in place
And the fact that Congress did that I
do say -- I do think quite clearly presupposes
that theres a -- the existence of a
substantive standard being prescribed And the
substantive standard as I said is virtually
absolute immunity
And then in terms of the structural
indicators in the statutory text going back to
a question you asked Justice Sotomayor I
really think the most telling one to -- to
show you I think why my friends on the other
sides case is completely anachronistic and
were correct -- is Section 288f which you can
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find at page 6a of the appendix to the blue
brief
That provision says that the
privileges exemptions and immunities of
international organizations and then of -- of
members and employees et cetera shall be
granted notwithstanding the fact that similar
privileges exemptions and immunities granted
to a foreign government et cetera et cetera
may be conditioned upon the existence of
reciprocity by that foreign government
So right there in the text it
decouples the treatment of international
organizations from the treatment of foreign
states Even in a situation in which the
United States would not grant the full range of
virtually absolute immunity because it wasnt
being -- receiving reciprocal treatment this
statute says the international organization
gets it So -shy
JUSTICE GINSBURG How do you deal
with the argument that we just heard that we
can compare 288a on the one hand which -shy
which keeps the international organizations in
tune with foreign sovereigns and 288 -- was it
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b and d
MR VERRILLI Yes I do think that
the -- the differences break down into two
categories Your Honor There -- some of the
provisions do prescribe fixed standards
Thats true But those fixed standards as we
explained in our brief or at least tried to
are always situations in which the IOIA is
conferring a narrower set of immunities on -shy
on diplomats and individuals than the common
law would have at the time
So incorporation of the standard in
the way this 288a(b) did wouldnt accomplish
the objective there because there was -- they
were quite consciously trying to narrow the
overall scope of immunities and not give the
individuals who worked at these organizations
the same full treatment that diplomats got who
-- from foreign states
Now the second subcategory are the
provisions where the -- the statute says that
their -- the treatment shall be the same But
theres two things about that that are
significant
One is it says they shall be the same
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as under another statutory provision And as
we said we think thats vitally important
here We think its quite clear that in
addition to Justice Breyers points about the
reference canon that the reference canon
applies when one statute incorporates another
It doesnt apply when one statute incorporates
the common law And here they were
incorporating statutes
And if you look at those provisions
anyway theyre basically just instructions to
the executive branch when do you fingerprint
the people when theyre coming in What do you
do about that -- this detail or that detail
They dont go to the heart of the
matter at all And the heart of the matter
here is the immunity being conferred on these
international organizations
I just want to make a point about that
and then if I could talk about the
consequences that will ensue I think if we go
down the path that my friends on the other side
are suggesting
I think this is a critical point I
just want to make sure its clear Another
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reason why you shouldnt draw this equivalence
-- and it cant be that Congress really
intended to draw an equivalence between foreign
states and international organizations such
that they would just move in tandem no matter
what -- is that immunity is granted for
different reasons
The reason you give an international
organization immunity is a functional reason
not a status reason Its not about according
the appropriate respect to the sovereigns
because international organizations arent
sovereigns Theyre separate juridical
persons And whats quite clear -- its clear
from the U -- the San Francisco report on the
foundation of the UN its clear from the
Senate report in 1945 its clear from all the
commentators that we discussed in our brief
its clear from the Restatement of Foreign
Relations which weve cited in our brief that
you grant immunity to international
organizations so that they can carry out their
functions effectively And -- and just take -shy
let me take a minute and kind of elaborate on
that because I think its critical
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Remember these are -shy
CHIEF JUSTICE ROBERTS If you dont
mind Im afraid Im about five minutes behind
you here but going -- going back to your point
on 288f you said its there theyre decoupling
the international organizations and the foreign
sovereigns But as I go back and read it
its simply because the -- the foreign
sovereigns have the capability to use
reciprocity and the foreign -- and the
multi-country organizations do not
I dont -- I mean thats the
difference theyre drawing there not something
between the scope of the actual immunities
MR VERRILLI Well I -- well the
way I read it Mr Chief Justice is what -shy
what theyre doing there is saying even in a
situation in which the United States concludes
that it wont afford a foreign sovereign the
full virtually absolute immunity because of
reciprocity in other words were not getting
it back from them even in that situation an
international organization of -- where those
sovereigns are members will still receive the
full level of immunity
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And so I think what that tells us is
that what Congress was trying to do in this
statute overall was prescribe a fixed
substantive standard not a floating standard
where the two things move in tandem So -- and
I -- I do think it supports that
And if I could just go back to the
functional point remember these are
collective bodies and members come together
they make -- they -- they take resources from
each of their own countries They put them
into these organizations They make collective
decisions about how to deploy those resources
And the point of the immunity here is
so that the courts of any country but
especially the host country which for the most
important organizations are going to be here in
the United States cant override the
collective judgments that they make about how
their resources would be deployed and what
conditions they ought to impose et cetera by
the intervention of domestic law in US courts
and cant redirect the funds that are put into
these organizations to pay massive class action
tort judgments because of course the member
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countries are contributing this money because
they believe its going to be put to the use
that the -- for example the development bank
the development bank decides it should be put
to not to pay massive tort judgments
And I think one place you see this
very clearly if you look at the report of the
San Francisco conference about the founding of
the UN the State Departments -shy
Departments response coming -- report coming
out of that conference specifically says this
It says of course the United Nations cant be
subject to the jurisdiction of any one state or
its courts
And its for exactly this reason And
the same thing is true generally Thats why
you give it not for functional reasons -- I
mean excuse me not for reasons of status but
for functional reasons
And I think a key -- another key
reason why you shouldnt be thinking about this
as a standard that evolves evolves now and
over time is that those functional reasons
dont evolve now and over time
CHIEF JUSTICE ROBERTS Well what
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about the point that most of the concerns you
have are going to be dealt with by the
requirement of a nexus to activity in the
United States as opposed to simply abroad
where the projects are funded
MR VERRILLI Yes I was gratified
to hear the United States say that but -- and
-- but I could just -- Ill answer Your Honors
question directly but I want to broaden it out
a little bit because I think what essentially
the United States is saying here is look the
statute leaves one with no choice but to apply
restrictive principles of immunity Youve got
to jump off that cliff but dont worry it
will be a soft landing because the FSIA will
take care of a lot of these problems
And I guess what I would say about
that is in the unlikely event you dont agree
with me I -shy
(Laughter)
MR VERRILLI -- I hope theyre
right But theres no guarantee that theyre
right
JUSTICE BREYER Are the -- are the
lending decisions which may be fairly detailed
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and may include dozens of conditions made
within the United States
MR VERRILLI Well yes I think
thats a big part of the problem and -shy
JUSTICE BREYER Is there -- are there
lawsuits that could say that there was
negligence in determining in a different
country who the persons were or the conditions
under which the money would be spent Is that
an American lawsuit saying what youve done
here is commit the act of negligence or failure
to be a fiduciary here
MR VERRILLI Thats this lawsuit
Thats this lawsuit Justice Breyer Thats
exactly what theyre alleging
CHIEF JUSTICE ROBERTS Well but I
mean is that consistent with our opinion in
the OBB case which I think -- if the complaint
is based the gravamen of the complaint not
specific steps along the way and that was the
issue we dealt with in that case
And I appreciate the fact that its
you know to some extent dependent on the facts
and particular allegations but it would seem
to me to require a lot more than simply the
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specific decisions I think where -- wheres
the gravamen or gravamen however you say it
with whats going on here
MR VERRILLI Well we would
certainly say its India of course
CHIEF JUSTICE ROBERTS Yeah
MR VERRILLI And if -- if we have to
defend ourselves on that basis we will But I
-- but I -- I think it -- it understates the
real concrete risk here And what Id like to
do to illustrate that if I could is first
talk about the organizations that are going to
be exposed in a way that they wouldnt be under
the law
And as Justice Breyer indicated
earlier its important to remember this has
been the law in the DC Circuit for decades
and theres -- and people have ordered their
affairs based on the assumption that there was
virtually absolute immunity
But with respect -- but with respect
to the consequences and the groups affected and
then the types of effects With respect to the
groups affected youve got entities like us
the multilateral development banks And
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Justice Breyers identified many of them
Now the -- the main ones are here
here in Washington DC and theyre making
their decisions here and I think critically
too there are billions of dollars of assets
here
Now were going to make the OBB
argument for sure and I hope we win if we have
to make the argument I hope we win But who
knows how courts are going to come out on that
issue
Were going to have a lot of fighting
about that There are probably going to be
matters of degree Theres certainly going to
be significant disincentives arising out of
that uncertainty
Theres a whole another group of
entities that unlike the banks at least have
articles of agreement where we can try and fall
back on those for alternative arguments of
immunity where their immunity depends entirely
on the statutory grant the International
Committee of the Red Cross the World Health
Organization the fund to fight -- the global
fund to fight AIDS and tuberculosis and
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malaria
They are all entirely dependent on the
IOIA for their immunities and those immunities
are drastically different after this And then
we do have the issue I think with some
organizations that we may even actually now be
out of our -- out of compliance with our treaty
commitments
Now whats going to happen Heres
what I think is going to happen and I think
this lawsuit helps you see it
Now the way -- the basis of this
lawsuit is the following IFC when it loans
money here its loaning money in -- in parts
of the world where private capital wont go
unless we go in there
And very often they have un-developed
legal systems and they certainly dont have
robust environmental protections or labor
protections So what the IFC has done is lien
into those put those kinds of environmental
standards and labor standards into its
agreements saying you want this money to do
this development project these are the
standards that youve got to live up to
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And -- and this lawsuit is that -shy
that the entity that we loan this money to
didnt live up to the standards and its our
fault And so were being sued here
Well its going to create -- if that
kind of a suit can go forward and hopefully it
wont be able to Mr Chief Justice but if it
can its certainly going to create an
extraordinary disincentive for organizations
like ours to lien into those kinds of standards
because were going to be hoist by our own
petard
Now weve also got a robust internal
accountability mechanism where if people think
something has gone wrong on one of our
projects they can come to us and they can say
-- they can say look theres a problem here
And they -- and we investigate We take
internal remedial measures if we find theres a
problem
Well you know the factual basis for
the lawsuit is the report of our internal
accountability process
So if they can just grab that and take
it into court and make it the basis for a class
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action tort lawsuit in which they can make a
claim for all this money its going to create
a powerful disincentive for us not to engage in
that kind of self-policing activity
And I would submit that you know
even if things ultimately work themselves out
under the FSIA and I hope they -- I hope we
dont have to deal with that but even if we
do its going to take a very long time There
are going to be a lot of difficult cases at the
margin There are going to be very serious
disincentives immediately
And conversely you know were a big
fat target here These organizations have lots
of money And of course foreign plaintiffs
want to sue here They can bring a class
action They get liberal discovery They can
get punitive damages They get all of these
advantages by suing here
So instead of suing the person that
actually injured them the power plant in
India they come here and sue us
And I really think what you are going
to see here is that this is just going to
become another version of the sorts of
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foreign-cubed lawsuits that the Court has been
concerned about under the Alien Tort Statute
where the international organization is just
going to be subbed in for the foreign defendant
and its going to be subbed in in a situation
where were going to have a very significant
pile of money
And if I could just close with this
thought -- Im just going to pick up on Justice
Breyers thought -- the law in the District of
Columbia where virtually all these
organizations have been housed are
headquartered has been virtually absent
immunity under DC circuit law for decades
Thats the standard everybody has been
operating on
Nobodys suggested that anything has
gone wrong under this statute that there are
any deleterious policy consequences that the
interests of the United States are adversely
affected in any way In fact if you look at
the amicus brief from the former Secretaries of
Treasury and State they think that the policy
of the government arguing now is going to
disrupt the United States ability to function
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effectively with these organizations
It has all been fine And -- but
theyre asking you essentially to repeat a
metaphor to jump off a cliff And hopefully
it will be a soft landing But we dont know
that And it could easily result in a lot of
disruption to the good work that these
organizations do
And I guess what I would suggest is
that if thats going to happen it ought to
happen through legislation Congress can look
at this Congress can change the law if it
wants to But this has been the law for a very
long time There is no evidence that it has
done anything other than work well
And therefore I think the Court
should affirm the DC Circuit Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Four minutes Mr Fisher
REBUTTAL ARGUMENT OF JEFFREY L FISHER
ON BEHALF OF THE PETITIONERS
MR FISHER Thank you Id like to
make four points and Id like to start with the
text of the statute itself and simply say when
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Mr Verrilli talks about the Neder Doctrine and
the Common Law Doctrine that you look at the
term a terms meaning at the time of
enactment Hes mixing apples and oranges
And I think all the citations in our
reply brief should make it absolutely clear
that theres a doctrine on the one hand that
talks about incorporating a body of law and
theres a doctrine on the other hand about
giving meaning to a specific term Were in
the former camp here
And as to the point about whether the
common law was evolving at the time two
things Well stand on the papers as to the
fact that it was somewhat in flux
But the more important point is even
if it werent in flux it wouldnt matter one
wit because the other side is making a
sweeping proposition which is any general
reference to common law is fixed in time
That would disrupt any number of
federal statutory regimes from the Federal
Tort Claims Act enacted the year after this
statute the Equal Access to Justice Act the
federal governments piracy statute Federal
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Rule of Evidence 501 I could go on and on
with federal statutory regimes that reference
the common law in exactly the same way the
statute does here
The Civil Rights Act of 1866 if you
want one more All of those would come out the
other way from this Courts jurisprudence and
from all the understanding if the other side is
right about statutory interpretation
So I think the only thing the other
side has is they have a bunch of policy points
to make for this Court
Now we dont think they should
control but let me answer them So first as
to our treaty obligations So one about at the
moment of enactment My friend kept saying
that there were various agreements in place
that required virtually absolute immunity
None of the agreements use those
words Instead what those agreements said is
that certain organizations were entitled to
immunity to allow them to perform their
necessary functions Thats a very different
thing than absolute immunity
And its very different because none
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of the organizations involved were performing
Justice Sotomayor commercial activities that
were essential to their core functions not the
UN not any of the other organizations
So we werent in breach of any treaty
rights And if you have any doubt on that I
would urge you to look to the federal
governments position then and now Its not
just a brief filed in this Court
It is the position that four different
Presidential Administrations have taken The
Carter Administration right after the FSIA was
passed the George H W Bush Administration
the Clinton Administration and now the Trump
Administration have all consistently held that
the FSIA rules are incorporated into the FSIA
Next on the floodgates concern I
explained earlier and I hope you will think
about the fact that while the core activities
of the IFC might be commercial activity not
all of the IFCs activities are and certainly
not all the activities of international
organizations are
But let me add one more thing My
friend talked about big lawsuits of ruinous
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liability Well theres two very easy ways to
control that
One is to the extent any claims are
on contracts they can write their own
contracts and negotiate their own contracts
As the Solicitor General points out they can
even deal with third-party beneficiaries in
their contracts if they choose
Secondly as to tort claims they can
and in fact commonly do indemnify themselves
against tort lawsuits In this very case
their agreement indemnifies them against any
judgment and all legal fees
So these organizations have every
manner of method to deal with any potential
liability And in fact they are which sort
of belies the suggestion that they think
theyre absolutely immune from lawsuit
Finally let me say one thing about
the so-called foreign cubed problem or the
facts of this case Now obviously we think
that we would satisfy the gravamen test They
have never made that argument And if they
want to make it we can -- we can have that
conversation in the lower courts
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But bear in mind what youre being
asked to do in this case is to announce a
categorical rule for all cases dealing with
international organizations
So my friend in the Solicitor
Generals Office talked about just regular tort
slip and fall cases and the like in the United
States Let me give you one other thing to
think about
Some international organizations
actually do their work in the United States
The border cooperation -- the Border
Environmental Cooperation Commission does
wastewater treatment plants in Texas and
California
I cant think of any reason why they
would be immune from those infrastructure
projects in a way that no private business or
public government would be
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1206 pm the case
was submitted)
Heritage Reporting Corporation
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1 392151723 4122 4223 433
452 462 4718 4817 5220 57
allegations [1] 5624
alleging [1] 5615 B
1108 [2] 115 32 20 651824 allow [3] 2321 246 6522 back [22] 44 61420 10513 11
1206 [1] 6822 Absolutely [3] 3113 646 6718 allowed [1] 2610 17 154422 172425 1911 226
1602 [1] 1412 Access [1] 6424 allows [3] 231220 242 4425 4524 4610 4720 5247
17-1011 [1] 34 accident [1] 2615 almost [2] 719 253 22 537 5820
1866 [1] 655 accompanying [1] 4111 already [4] 311521 323 4118 backwards [4] 514 23161724
1904 [2] 614 1725 accomplish [1] 4913 alternative [1] 5820 bad [1] 1416
1934 [1] 49 according [2] 1817 5110 Altmann [1] 1318 bank [13] 719 81822 98 2716
1945 [17] 1013 142025 151213 accountability [2] 601423 amended [1] 1615 283455 3022 324 5434
15 1617 331 3522 36710 374 accumulated [1] 3514 American [3] 112 3721 5610 banks [9] 88910 271415 2911
388 3911 4216 437 5117 across [1] 1025 amicus [4] 122 27 2011 6222 3021 5725 5818
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1970 [6] 3919 4013 415101520 2324 655 24 barred [2] 2689
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2 2910 3122 4017 662192122 2122 378 3823 501625 5420 basic [1] 3413
20 [2] 28 2622
20-some [1] 2624
2018 [1] 111
21 [1] 3421
27 [1] 3717
288 [4] 2213 331 4616 4825
288a [3] 1915 2018 4823
288a(b [4] 2024 2111 2215 49
13
288a(d [1] 2110
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69 2551718 27182325 2914
17 3010 31211 322 553 614
6620
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11
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Administration [4] 66121314
5817 6125
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6
apply [7] 1010 161 1919 2215
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2125
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8 6322
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7 5111 625 1410 1914 2010
2213 2314 337 3521 3710 46
9 4822 5889 6321 6723
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6 affected [3] 572224 6221 arising [1] 5815 161924 398 4015 5012
63 [1] 214 affirm [1] 6317 Armed [1] 63 breach [1] 665
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8 afraid [2] 1625 523
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Asia [1] 3023
Asian [1] 284
Bretten [2] 4325 441
BREYER [40] 43 513162022 6
80-some [1] 2623 African [1] 285 assets [1] 585 16 717 817 912 108 1117 12
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22 133 147 157 238111923
24259151821 2712 282914 am [2] 115 32
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agreement [4] 282325 5819 67 assuming [1] 277 5524 56514 5715 able [7] 1023 2423 2513 264 32
12 assumption [2] 1223 5719 Breyers [4] 164 504 581 6210 20 458 607
agreements [5] 2821 5923 65 assurance [1] 318 brief [16] 618 115 364 377918 above-entitled [1] 113
171920 assure [3] 30619 4218 41121314 482 497 511820 abroad [1] 554
agricultural [1] 84 attenuated [1] 2523 6222 646 669 absent [1] 6213
AIDS [1] 5825 authority [7] 212425 2241114 briefs [1] 4522 absolute [33] 1922 201 22310
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Alan [1] 1624 available [3] 11810 412 broaden [1] 559 21 34117 3524 361622 383
Alien [1] 622 BUDHA [1] 13
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70Official - Subject to Review
building [1] 2613
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Case [35] 34 4189 548 6236
88161718 9162025 14116
191 2117 2511 34182122 36
2 404 4724 561821 671121
6822122
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269 3415 4424 452020 6110
6837
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14 5918 608 6621
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1125
Chase [1] 618
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6318 6820
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325 511414161719 646
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17
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Congress [36] 1023 1125 1224
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5316
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349
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671016
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fees [1] 6713
few [1] 723
fiduciary [1] 5612
fight [2] 582425
fighting [1] 5812
filed [3] 4114 473 669
Finally [1] 6719
FINANCE [2] 16 35
financial [2] 814 329
find [7] 2923 401415 4316 458
481 6019
fine [1] 632
fingerprint [1] 5012
first [10] 7123 102 1412 1610
1724 2324 351 5711 6514
FISHER [23] 118 2313 3679 5
12151721 10418 1381013 16
31321 173 4425 63202123
fisheries [1] 81
fit [2] 106 1520
five [3] 818 389 523
fixed [8] 212 2219 331216 495
6 533 6420
floating [1] 534
floodgate [1] 279
floodgates [3] 267 3116 6617
flux [6] 189 3523 361520 6415
17
focus [1] 3213
following [1] 5913
foolish [1] 1816
foreign [39] 3131819 7141518
812 97 1216 19720 219 234
9 2512 3219 3324 391622 42
2910 4320 489111425 4919
51319 52681019 6115 624
6720
foreign-cubed [1] 621
forever [1] 44
forgive [1] 1623
form [5] 1172123 1434
former [2] 6222 6411
forth [1] 4421
forward [8] 131424 142 2513
265 32314 606
foundation [1] 5116
founding [2] 620 548
Four [3] 632024 6610
Francisco [2] 5115 548
fraud [3] 342323 356
friend [6] 2016 2120 254 6516
6625 685
friends [7] 344 3920 4414 4510
468 4723 5022
front [2] 426 444
frozen [1] 2117
FSIA [10] 1411 15423 2718 297
5515 617 66121616
fulfill [3] 3320 422125
full [5] 354 4816 4918 522025
fully [1] 1023
function [1] 6225
functional [5] 519 538 541719
23
functions [3] 5123 6523 663
fund [2] 582425
funded [1] 555
funds [2] 196 5323
further [1] 332
future [1] 102
G gave [5] 517 124 349 382 4514
General [7] 120 322 113 1716
1811 6419 676
Generals [1] 686
generally [1] 5416
George [1] 6613
gets [1] 4820
getting [3] 923 148 5221
GINSBURG [5] 326 3520 4513
17 4821
Ginsburgs [1] 436
give [24] 56 61722 824 1018 11
21 1221115 131 15171920
3016 31814 3719 448 45415
4916 518 5417 688
given [10] 41 15122 175 1914
2211 3115 349 361
gives [4] 31117 812 1116
giving [1] 6410
Glad [1] 2423
global [1] 5824
gloss [1] 4413
goal [1] 1411
Gorsuch [6] 410 163142225
1813
got [9] 510 2317 289 467 4918
5513 5724 5925 6013
gotten [1] 3715
government [7] 127 318 3811
48911 6224 6819
governments [4] 92 4522 6425
668
governmental [1] 123
governments [11] 31319 812 9
1 12110 219 23410 2720 32
20
governs [1] 3511
grab [1] 6024
granddaddy [1] 4010
grant [8] 2023 2225 2313 246
4621 4816 5121 5822
granted [4] 4624 4878 516
granting [1] 4117
grants [2] 824 302
gratified [1] 556
gravamen [7] 25222425 5619
5722 6722
great [3] 188 2425 4025
gross [1] 4625
group [2] 710 5817
groups [2] 572224
guarantee [1] 5522
guess [6] 922 299 4213 4423
5517 639
H
Heritage Reporting Corporation Sheet 3 disruption - guess
72Official - Subject to Review
half [1] 2810 importing [1] 1419 11 595 56101314 591113 60122 61
hand [3] 4823 6479 impose [1] 5321 itself [7] 716 811 116 2416 372 1 6718
happen [4] 59910 631011 incentives [1] 142 4218 6325 lawsuits [5] 319 566 621 6625
hasten [1] 1424 include [1] 561 J 6711
headquarter [1] 1022 Including [1] 2711 lay [1] 1925
headquartered [4] 1022 2619 inconceivable [2] 43812 JAM [2] 13 34 lead [4] 153410 319
25 6213 incorporate [1] 3518 JEFFREY [5] 118 2313 37 63 least [4] 186 2410 497 5818
headquarters [2] 2615 292 incorporated [6] 325 72 169 33 21 leave [1] 420
Health [1] 5823 14 3423 6616 JONATHAN [3] 120 26 2010 leaves [1] 5512
hear [2] 33 557 incorporates [2] 5067 JR [2] 124 210 led [1] 449
heard [2] 4425 4822 incorporating [2] 509 648 judge [1] 1319 left [1] 2016
heart [2] 501516 incorporation [1] 4912 judgment [2] 4711 6713 legal [2] 5918 6713
heightened [1] 144 increase [1] 226 judgments [3] 531925 545 legislation [3] 813 175 6311
held [2] 309 6615 indeed [4] 427 187 203 Judiciary [2] 619 1724 legislative [1] 1119
helps [1] 5911 indemnifies [1] 6712 July [1] 388 lend [2] 423 2412
hewing [1] 3621 indemnify [1] 6710 jump [2] 5514 634 lending [8] 889101623 2719
historical [4] 393 441318 4512 India [4] 2623 575 6122 juridical [1] 5113 2910 5525
history [4] 316 1119 2119 2818 Indian [2] 47 68 jurisdiction [1] 5413 lends [1] 302
hoc [1] 4612 indicate [1] 3123 jurisprudence [2] 523 657 lens [1] 712
Hoffman [1] 1514 indicated [1] 5715 Justice [96] 121 339 4310 513 less [1] 229
hoist [1] 6011 indicators [1] 4720 162022 616 717 817 912 108 Letter [6] 361919 3921 403 437
hold [1] 3723 individualized [1] 1417 1117 121822 133591112 14 465
Honor [4] 2420 365 4024 494 individuals [3] 419 491017 67 156 1634142225 1812 20 level [3] 3719 387 5225
Honors [1] 558 infer [2] 351616 713 2121 238111923 24259 liability [2] 67116
hope [6] 5521 5889 6177 6618 infrastructure [1] 6817 151821 2617 272691111 28 liberal [1] 6117
hopefully [2] 606 634 initial [1] 4022 2914 2938 301619 3147 32 lien [2] 5920 6010
hornbook [1] 1010 injured [1] 6121 6 33410 34524 3520 3612 40 light [1] 3317
hornbooks [1] 43 injuries [1] 262 1619 42715 4356 4420 4513 limited [1] 1224
host [3] 2025 217 5316 inquiry [1] 358 1517 467 4721 4821 504 522 list [1] 3020
housed [1] 6212 insertion [1] 69 16 5425 5524 5651416 576 little [2] 102 5510
however [1] 572 instance [1] 2220 15 581 607 629 6318 6424 66 live [2] 5925 603
I instead [2] 6120 6520
institutions [2] 81823
2 6820
K loan [3] 820 2924 602
loaning [1] 5914 idea [4] 14816 1618 2618
identified [1] 581
IFC [10] 710 8111919 256 283
323 591320 6620
IFCs [2] 3120 6621
II [1] 446
illustrate [1] 5711
IMF [6] 283 302 37202525 388
immediately [2] 407 6112
immune [4] 215 252 6718 6817
immunities [19] 2025 2216 234
instructions [1] 5011
intended [2] 347 513
Inter-American [1] 284
interest [1] 1114
interests [1] 6220
interfere [1] 3110
internal [3] 60131922
INTERNATIONAL [37] 16 3511
17 422 72224 824 1025 1421
1921 2221 232 251 286 3222
3323 4010 421 4621 477 485
KAGAN [6] 2121 2938 42715
435
keeps [1] 4824
kept [1] 6516
key [2] 542020
kind [5] 825 453 5124 606 614
kinds [5] 716 2618 3820 5921
6010
knowing [1] 101
knows [2] 198 5810
loans [5] 2912131822 5913
lobby [1] 1023
locate [1] 1014
lock [1] 175
long [5] 45 1011 1322 619 63
14
look [32] 61315 724 911 108 13
18 168121416 1713 2021 21
19 2311 2817 311920 351 37
10 4111 4412 45119 4623 50
10 547 5511 6017 6221 6311 3815172121 391213 4118 131924 5018 51481221 526 L 642 667 4622 4848 49916 5214 5933 23 5822 623 6622 68410 labor [2] 591922 looked [4] 44 158 3020 4524
immunity [119] 312171820 419 Interpol [1] 83 landing [2] 5515 635 looking [2] 3523 212425 559 9152125 1024 interpret [1] 1017 language [8] 1017 1518 202 21 looks [3] 3618 3812 4313 11672123 1229911161925 interpretation [2] 3415 659 13 343 359 421215 lot [10] 2017 221 2814 319 446 13120 145141721 15219 16 interpreted [1] 343 last [1] 49 5516 5625 5812 6110 636 1 191922 20124 213925 223 interpreting [2] 619 359 late [1] 4120 lots [2] 420 6114 991922 2337131415 2436 intervention [1] 5322 later [3] 4916 3810 lower [3] 2722 309 6725 101125 259 26510 28152025
297 3025 3121 3251521 33 investigate [1] 6018
inviolable [1] 213
latter [1] 1717
Laughter [4] 172 2318 241 55 M
121522 3411117 3523 36110 involved [2] 149 661 20 made [10] 53 1223 1415 18910
15172224 37121319 3847 39 IOIA [21] 31115 11816 2023 22 law [46] 32425 61121 714 82 3924 469 4710 561 6723
215161722 411822 4223 434 17 2624 331120 3718 3869 1056 131516 1419 151212 mail [1] 3422
920 448 4525 463 47618 48 22 391 411921 4314 4410 46 15 1620 17151618 18567 21 main [1] 582
17 5017 516921 522025 53 18 498 593 14 3314 3515 3619 383 439 malaria [1] 591
14 5513 5720 582121 6214 65 ISMAIL [1] 13 20 4524 462 479 4911 508 53 managing [1] 81
182224 isnt [6] 1618 2513 31910 3711 22 571417 621014 631213 64 manner [1] 6715
important [5] 1324 502 5317 57 4419 281320 653 many [9] 413181818 725 1025
16 6416 isolation [1] 2020 laws [1] 306 2618 322 581
importantly [1] 257 issue [6] 1219 211116 5621 58 lawsuit [14] 1223 15225 4723 margin [1] 6111
Heritage Reporting Corporation Sheet 4 half - margin
73Official - Subject to Review
market [2] 820 2918
massive [2] 5324 545
match [1] 4418
materiality [2] 3423 355
materials [4] 372 426 4413 45
12
matter [7] 113 1716 466 5016
16 515 6417
matters [1] 5814
mean [14] 4111213 64 914 248
251 371 4211 451819 5212
5418 5617
meaning [7] 179 3315 351518
22 64310
means [4] 524 3517 421620
meant [3] 64 223 2910
measure [1] 126
measures [1] 6019
mechanism [2] 4617 6014
member [1] 5325
members [3] 486 5224 539
mentioned [2] 1813 417
mess [1] 453
metaphor [1] 634
metes [1] 1714
method [1] 6715
might [2] 718 6620
mind [2] 523 681
minimum [1] 1524
minute [2] 3722 5124
minutes [2] 523 6320
mission [1] 444
mistake [1] 53
Mister [1] 293
mixed [1] 923
mixing [1] 644
modern [1] 1817
moment [5] 4115 105 3921 65
16
monetary [1] 411
money [14] 41223 820 2413 30
7 541 569 59141423 602 612
15 627
months [1] 389
morning [2] 2017 3116
most [6] 232 257 3316 4722 53
16 551
move [3] 3611 515 535
moving [1] 3623
much [5] 141 2517 3112 395 40
21
multi-country [1] 5211
multilateral [1] 5725
multinational [1] 2911
must [4] 251718 351616
N Nader [2] 341921
narrow [1] 4915
narrower [1] 499
nations [4] 418 397 4011 5412
natural [1] 354
nature [2] 123 2924
necessary [4] 1720 3510 3912
6523
Neder [1] 641
need [7] 1116 306 3124 3268
3712 4318
needed [2] 291 3823
negligence [2] 56711
negotiate [4] 1214 143 2825 67
5
negotiated [3] 115 1220 3914
never [1] 6723
New [1] 2616
next [2] 34 6617
nexus [2] 2517 553
nobody [2] 59 925
Nobodys [1] 6217
non-commercial [1] 85
none [3] 4411 651925
normal [1] 3414
nothing [3] 101 2411 404
notwithstanding [1] 487
Number [6] 242424 2713 3115
4424 6421
numbers [1] 2621
O OAS [4] 113 1221 282224
OBB [3] 2520 5618 587
objective [1] 4914
obligations [5] 332022 409 41
24 6515
obvious [1] 4624
obviously [2] 4710 6721
occurred [2] 2622
occurs [1] 2519
October [1] 111
Office [1] 686
officers [2] 214 2220
official [1] 215
officials [2] 192021
often [1] 5917
Okay [5] 512 2323 24518 467
old [1] 187
once [2] 4315 4620
one [47] 41823 5118 6217 819
1317 14369 1622 173 1868
1113 191218 211116 2424 25
10 273 3013 3118 3618 3812
4014 4313 4722 4823 4925 50
67 54613 5512 6015 64717
65615 6624 67319 688
ones [1] 329
one-way [1] 225
ones [1] 582
only [8] 423 62 2116 225 2810
296 417 6510
open [1] 3117
opening [1] 267
operating [1] 6216
opinion [4] 69 1624 3424 5617
opponents [2] 321 61
opportunity [1] 143
opposed [1] 554
opposite [3] 417 1345
oral [7] 114 2259 37 2010 337
oranges [1] 644
order [6] 292 306 3823 4620 47
15
ordered [1] 5718
Ordinarily [1] 296
ordinary [2] 610 117
Organization [16] 1124 1421 19
321 372021 4020 4118 4622
477 4819 519 5223 5824 623
organizations [1] 2614
organizations [56] 31218 422 7
2225 824 101421 1111422
214 2221 232 2518 261923
281319 3120 3222 3323 3711
4010 4219 4427 4851424 49
17 5018 5141222 52611 53
121724 5712 596 609 6114
6212 6318 6521 661423 67
14 68410
original [2] 1118 203
originally [1] 1616
other [41] 421 6225 77 8621
23 95 13125 141019 1715 18
21 1924 2113 224 23312 24
16 2912 3212 3446 3622 39
20 441114 4511 469 4723 50
22 5221 6315 64918 657810
664 688
others [2] 1221 324
otherwise [2] 3517 408
ought [5] 813 161 3624 5321
6310
ourselves [1] 578
out [19] 6810 1413 2416 2813
4089 4325 449 5122 5411 55
9 581015 5977 616 656 676
over [7] 1620 3024 3525 4319
21 542324
overall [2] 4916 533
override [1] 5318
own [10] 615 12131317 1518
2815 5311 6011 6745
P pm [1] 6822
package [1] 411
PAGE [5] 22 3420 3717 4113
481
papers [1] 6414
part [5] 1219 1411 2122 4322
564
Parte [1] 1514
particular [6] 916 178 341820
362 5624
particularly [1] 2118
partly [1] 1120
parts [1] 5914
party [5] 2724 2923 3011113
passage [2] 416 4314
passed [5] 525 813 1316 452
6613
past [3] 41215 92
path [1] 5022
pathway [1] 156
pathways [3] 119 1721 181
pay [2] 5324 545
people [4] 369 5013 5718 6014
percentage [1] 2812
perfect [1] 183
perform [1] 6522
performing [1] 661
perhaps [1] 3110
permissible [2] 623 1321
person [3] 2320 4316 6120
persons [2] 5114 568
pertinent [1] 1618
Peru [1] 1514
petard [1] 6012
Petitioners [10] 141923 24814
38 201219 6322
phrase [1] 2020
pick [4] 164 2015 376 629
picks [1] 281
pile [1] 627
piracy [1] 6425
place [3] 4712 546 6517
plain [2] 314 1913
plaintiff [1] 311
plaintiffs [1] 6115
plant [1] 6121
plants [1] 6814
please [3] 310 2014 3310
point [17] 1718 281222 297 34
19 35111 377 4023 501924
524 53814 551 641216
points [8] 166 3115 3945 504
6324 6511 676
policies [1] 142
policy [9] 1079151516 1418
621923 6511
political [1] 1418
politically [1] 1423
position [5] 1525 1822 4610 66
810
possibly [2] 38510
potential [1] 6715
power [2] 249 6121
powerful [1] 613
practical [2] 101920
practice [1] 296
precisely [1] 3718
prescribe [2] 495 533
prescribed [1] 4716
prescribes [1] 3311
present [1] 324
presented [1] 2515
President [9] 55 1225 136 225
24 2313 243 3410 4619
Presidents [3] 1212 2214 475
presidential [4] 2123 22411 66
11
pressure [1] 446
presumptively [1] 252
presupposes [1] 4714
pretty [1] 3022
principal [1] 1113
principle [1] 614
principles [1] 5513
Heritage Reporting Corporation Sheet 5 market - principles
74Official - Subject to Review
prior [1] 65 10 394 441225 4722 512 61 397 4510 5111 57212123 seen [1] 1520
private [12] 81421 2724 2912 23 respectfully [3] 366 373 4510 self-policing [1] 614
182223 3011113 5915 6818 reams [1] 61 Respondent [4] 1725 211 338 Senate [6] 123 41111516 4224
privileges [4] 233 4622 4848 reason [17] 109 1891012 1910 Respondents [1] 269 5117
probably [3] 815 93 5813 23 2212 3222 3319 4615 511 Respondents [2] 2112 236 sense [5] 183 221 247 3317 38
problem [8] 911 137 1420 3711 8910 541521 6816 response [3] 918 4024 5410 6
564 601720 6720 reasons [7] 1621 173 517 5417 responses [1] 2419 sensitivity [1] 4025
problems [2] 149 5516 181923 responsive [1] 1115 separate [2] 818 5113
process [4] 46511 479 6023 rebuild [1] 444 rest [1] 206 serious [3] 2511 263 6111
procure [1] 144 REBUTTAL [3] 212 206 6321 Restatement [1] 5119 set [3] 218 441 499
profit [1] 820 receive [3] 2222 2310 5224 restrictions [1] 304 sets [1] 212
programs [1] 825 received [1] 234 restrictive [8] 117 265 297 36 setting [1] 176
project [1] 5924 receiving [1] 4818 1124 3713 3922 5513 settled [2] 3315 3515
projects [4] 821 555 6016 6818 reciprocal [1] 4818 result [1] 636 settles [1] 2021
promised [1] 448 reciprocity [3] 4811 521021 retroactive [2] 131821 several [1] 211
property [1] 3821 reconsider [1] 3625 retroactivity [1] 1319 shall [4] 4619 486 492225
proposition [2] 4318 6419 Red [1] 5823 retrofit [1] 4418 shouldnt [4] 91620 511 5421
protection [1] 2624 redirect [1] 5323 reverse [1] 333 show [1] 4723
protections [2] 591920 redress [1] 3218 Rights [2] 655 666 shows [1] 231
prove [1] 3825 reduce [2] 3410 476 risk [1] 5710 side [20] 62625 8619 95 131
provide [9] 232 2923 3321 37 refer [3] 415 1619 2114 ROBERTS [9] 33 207 334 522 25 1419 1924 3215 344 3920
19 387 39111 4222 433 reference [10] 159 165 1719 18 5425 5616 576 6318 6820 4414 4511 469 5022 6418 65
provided [2] 2216 3817 11 1911 219 5055 6420 652 robust [2] 5919 6013 811
provides [2] 2024 3822 referenced [2] 611 185 roll [1] 226 sides [3] 1410 1821 4724
providing [3] 3416 38316 referential [1] 2113 roll-back [1] 2124 signed [1] 3910
provision [16] 3141723 116 17 referred [1] 2120 ruinous [1] 6625 significant [3] 4924 5815 626
6 2123 222614 2311219 28 refers [3] 323 167 2312 rule [13] 322 1425 1511 1757 similar [1] 487
16 4225 483 501 regard [2] 2567 20 1925 212 2610 351213 65 similarly [1] 474
provisions [8] 1320 212814 34 regardless [1] 2514 1 683 simply [4] 528 554 5625 6325
7 49521 5010 regiment [1] 1222 rules [4] 1919 2219 3414 6616 single [1] 4316
public [2] 825 6819 regimes [2] 6422 652 Russians [1] 4421 sitting [1] 1813
punitive [1] 6118 regular [1] 686 S situation [10] 611 1323 161 18
purpose [9] 46 101112161619 regulating [1] 813 4 457 479 4815 521822 625
111820 3318 regulation [1] 725 safer [1] 102 situations [1] 498
put [10] 712 122 292 4415 4711 regulations [1] 305 Samantar [1] 4525 slip [2] 2613 687
531123 5424 5921 Rehnquist [1] 3425 same [22] 3121618 721 1299 so-called [1] 6720
putting [1] 4422 reintroduce [1] 1420 11 1559 1919 3324 3916 422 soft [2] 5515 635
Q rejected [1] 624
related [1] 377
10 433 451317 49182225 54
16 653 solely [1] 354
Solicitor [4] 120 113 676 685 quasi-sovereign [1] 3018 Relations [1] 5120 San [2] 5115 548 sometimes [6] 1113 166 1816 question [13] 71112 107 1122 relief [2] 41112 satisfy [1] 6722 194 4545 1425 164 1822 2421 2514 34 remain [1] 1311 save [1] 205 somewhat [1] 6415 13 4517 4721 559 remains [1] 137 saying [11] 98 292024 3811 40 somewhere [1] 2622
questions [6] 78 109 1317 18 remedial [1] 6019 15 4317 5217 5511 5610 5923 sorry [2] 1921 2319 17 333 436 remedy [2] 62223 6516 sort [10] 1323 26811 27222325
quintessential [1] 2611 Remember [7] 1112 128 1411 says [17] 621 95 176 191820 2925 30811 6716 quite [9] 45 111519 299 4120 4324 521 538 5716 357 3717 4116 421224 4618 sorts [2] 2717 6125 4714 4915 503 5114 remotely [1] 4317 48319 492125 541112 SOTOMAYOR [16] 1218 1359
quo [2] 4513 removing [1] 3025 scholars [1] 4114 1112 146 2617 2726911 345 quotes [1] 4115 renovated [1] 2613 scientific [1] 83 401619 4721 662
R repeat [1] 633 scope [3] 3814 4916 5214 south [1] 3211
raised [1] 1219
range [2] 2622 4816
ratchet [1] 225
rates [1] 820
rather [4] 92121 205 267
ratification [2] 4013 4112
ratified [1] 407
ratify [2] 3918 416
read [3] 372 52716
reading [2] 2019 354
real [1] 5710
really [12] 54 9202224 2020 37
reply [2] 618 646
report [10] 123 41111516 4224
511517 54710 6022
request [1] 3613
require [3] 2819 4610 5625
required [2] 1819 6518
requirement [2] 303 553
research [2] 844
reserving [1] 1912
residents [1] 3216
resolution [1] 82
resources [3] 53101320
respect [10] 215 372424 3813
second [8] 52 72 103 168 18
12 2325 3510 4920
Secondly [1] 679
Secretaries [1] 6222
section [17] 141212 1612 1915
16 201824 21101011 221315
2410 331 343 4616 4725
sector [2] 81421
see [10] 9142223 2118 3221 39
6 451 546 5911 6124
seeking [1] 3217
seem [1] 5624
seems [2] 102 2416
Sovereign [11] 320 9152125 19
6 2719 3041525 4320 5219
sovereigns [8] 197 302 4825
511113 527924
special [6] 88 1024 115 1219
371415
specialized [1] 3819
specific [6] 1619 176 1811 56
20 571 6410
specifically [1] 5411
spending [1] 91
spent [1] 569
stages [1] 4022
Heritage Reporting Corporation Sheet 6 prior - stages
75Official - Subject to Review
stand [1] 6414
standard [20] 33111625 3411
24 361113162123 4318 4612
471617 4912 5344 5422 62
15
standards [7] 4956 59222225
60310
Stanford [1] 118
start [5] 521 15711 3412 6324
started [1] 1522
Starting [2] 321 78
State [23] 55 7141518 9716 18
25 198 2114 2823 3525 3610
14 3922 402 4422 4545 4611
471 54913 6223
statement [1] 378
STATES [39] 111522 27 418
11312 2011 25219 2620 271
3111 3324 3652021 378917
21 3816 391618 42210 4815
16 4919 514 5218 5318 5547
11 562 6220 68811
States [1] 6225
status [5] 3523 4513 5110 54
18
statute [32] 47 525 74 101212
129 167791111 35616 3715
382823 46152124 4819 49
21 5067 533 5512 62218 63
25 642425 654
statutes [2] 3716 509
statutory [13] 323 51922 176
3317 3415 359 4720 501 58
22 6422 6529
Steamboat [2] 61724
step [1] 3510
steps [2] 723 5620
still [2] 137 5224
stilted [1] 1815
stood [2] 367 374
streets [1] 2616
stronger [1] 2517
structural [1] 4719
structure [4] 315 2022 2122 47
12
stuck [1] 910
stuff [1] 75
subbed [2] 6245
subcategory [1] 4920
subject [5] 12111314 3223 54
13
submit [3] 1410 155 615
submitted [2] 682123
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substantiate [1] 3810
substantive [4] 3325 471617 53
4
suddenly [1] 3025
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sued [4] 232022 3220 604
suggest [3] 344 366 639
suggested [1] 6217
suggesting [1] 5023
suggestion [2] 364 6717
suggestions [1] 1417
suing [2] 611920
suit [18] 312 41 524 6412 72
1314 15311 215 233 251322
25 312124 3223 606
suits [6] 312224 321131619
support [1] 4114
supporting [3] 122 28 2012
supports [1] 536
SUPREME [2] 1114
surrounding [1] 4314
Sutherland [2] 613 1725
sweep [2] 724 258
sweeping [1] 6419
Switzerland [1] 98
system [2] 4325 4712
systems [1] 5918
T talked [2] 6625 686
talks [3] 811 6418
tandem [2] 515 535
target [1] 6114
Tate [6] 361819 3921 403 437
464
tax [1] 3821
tells [1] 531
tense [1] 324
Tenth [1] 1814
term [3] 410 64310
terms [1] 643
terms [5] 3314 351419 47419
test [2] 1521 6722
Texas [1] 6814
text [16] 31421 51922 191315
15 2018 3313 352235 4720
4812 6325
textual [1] 75
themselves [2] 616 6710
theory [2] 1224 3919
theres [23] 920 181 1910 2016
2111 2622 3118 359 363 403
12 446 4715 4923 5522 5718
581417 601719 6479 671
therefore [3] 342 3624 6316
theyve [2] 3715 4417
thinking [3] 425 4323 5421
third [3] 913 231725
third-party [1] 677
thirdly [1] 1215
three [2] 218 3720
tie [1] 1715
tied [1] 1016
today [5] 1917 2115 236 3710
4019
together [1] 539
took [1] 1718
tort [8] 5325 545 611 622 6423
67911 686
tortious [1] 261
towards [1] 3623
Trade [1] 3720
traditionally [1] 3111
transaction [3] 2925 3011 3210
transactions [1] 814
Treasury [1] 6223
treat [4] 1216 3323 432
treated [4] 3324 398 42210
treatise [2] 613 1725
treatment [7] 4219 48131418
491822 6814
treaty [17] 121417 332022 381
2121324 4124 422122 4311
597 6515 665
tried [1] 497
true [9] 45 721 2119 369 3725
3813 401 496 5416
Truman [1] 1825
Trump [1] 6614
try [4] 1816 406 444 5819
trying [7] 3023 3225 4324 4414
17 4915 532
tuberculosis [1] 5825
tune [1] 4825
turn [2] 104 1117
turning [1] 1416
two [15] 416 518 77 1317 1621
17321 181 2025 2113 49323
535 6413 671
type [2] 15325
types [1] 5723
U UN [16] 1013 1220 381819 39
10131424 40717 4121717 51
16 549 664
US [5] 321618 3420 382 5322
ultimately [1] 616
un-developed [1] 5917
unanimous [1] 3425
uncertainty [1] 5816
under [22] 319 118 1224 1424
22514 26524 322 3515 382
18 398 4119 4620 501 569 57
13 617 6221418
understand [2] 1821 261
understanding [1] 658
understates [1] 579
Understood [4] 2417 299 3713
4121
undertaken [1] 386
UNITED [33] 111522 27 1112
2011 2519 262025 3111 365
2021 378917 381516 39718
4011 4816 5218 5318 5412 55
4711 562 622025 68711
unless [2] 3516 5916
unlike [1] 5818
unlikely [1] 5518
until [3] 389 3919 4012
up [18] 44 923 164 2015 2225
281 322 37771023 383 441
717 5925 603 629
urge [2] 1914 667
urging [1] 416
uses [2] 178 3514
usual [1] 295
V various [1] 6517
vast [1] 258
Verlinden [1] 4525
VERRILLI [25] 124 210 33679
3412 363 401823 42813 43
11 4591618 468 492 5215 55
621 56313 5747 641
version [1] 6125
versus [2] 34 618
view [1] 2913
violation [1] 3924
virtual [1] 3312
virtually [22] 331521 34117 36
1622 3817 391151623 4122
4223 433 462 4717 4817 52
20 5720 621113 6518
vitally [1] 502
W waive [7] 917 2313 24310 3121
2124
waived [1] 324
wanted [4] 1711 19125 231
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War [1] 446
Washington [4] 1102124 583
wastewater [1] 6814
way [29] 6920 1216 1322 1421
157 1615 172325 2416 2516
21 3446 3822 3967 423515
4913 5216 5620 5713 5912 62
21 6537 6818
ways [3] 211 2211 671
wealth [1] 196
website [1] 811
Wednesday [1] 111
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Whereupon [1] 6822
whether [7] 1321 156 2914 34
22 361 3825 6412
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5224 551515 578 635 6618
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Woods [2] 4325 441
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1589 1789 4014
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6520
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616 63715 6811
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Heritage Reporting Corporation Sheet 7 stand - World
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2224 324 3720 44555 5823
5915
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WTO [1] 3812
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for example managing fisheries They do
things like dispute resolution law
enforcement Interpol They do scientific
research and agricultural research All of
those things are non-commercial activities on
the other side
Then you have the category the
special category of lending banks but even
within lending banks not all the things that
lending banks do are commercial activity The
IFC itself on its website talks about how it
gives advice to foreign governments about
legislation that ought to be passed regulating
financial transactions with the private sector
That is not probably commercial activity
And then even within lending
activities Justice Breyer just take the World
Bank it has five separate institutions Now
the IFC is on one side What the IFC does is
-- is loan money at market rates for profit for
private sector projects There are other
components of the World Bank and there are
other lending institutions that are
international organizations that give grants
for public works programs or that do the kind
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of spending that governments do And the
governments argued in past cases and we think
theyre probably right that that is not
commercial activity either
So when the other side says well
everything is commercial activity its no
different than the foreign state coming to this
and saying well if the Bank of Switzerland
does commercial activity then were -- were
stuck Well no no no its just how closely
you look at the problem
JUSTICE BREYER What about -- the
third was if we -- if we decide with you -- if
we decide against you see that would mean
there is sovereign immunity But there
shouldnt be in a particular case the State
Department can waive it and they have to be -shy
response
But if we decide for you and then
theres a case where there really shouldnt be
sovereign immunity or rather -- rather there
really should be I guess -- see thats what
Im getting mixed up You see if we decide
against you and they really should have
sovereign immunity in this case nobody can do
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anything So knowing nothing about the
future it seems a little safer the first
than the second
MR FISHER Well Im going to turn
back in a moment to the law and why that just
cant fit within the law but as to just the
policy question youre asking me even there -shy
JUSTICE BREYER Well you can look -shy
the reason I ask policy questions is because
the hornbook said yes apply it as of now as
long as its consistent with the purpose of the
statute And the purpose of the statute going
back to 1945 and the UN and everything was
to get these organizations to locate here
So its not just policy for policy
Its policy for purpose And purpose is tied
into how you interpret the language
MR FISHER So let me give you the
practical answer and then the purpose answer
On the practical answer
organizations especially if they want a
headquarter here or are headquartered here are
fully able to -- to lobby Congress or the
executive branch for special immunity And
there are many examples across international
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organizations
Take the Organization of American
States OAS And the solicitor general
discusses this in -- the organization in its
brief In 1994 it negotiated a special
immunity provision for itself to get more than
the ordinary restrictive form of immunity that
was available under the IOIA
So there are -- there are pathways
available and they have been used even more
so
Remember the United States as you
say has a -- has a sometimes principal
interest in these organizations So it is
quite responsive to them when they come and
say We need more than the IOIA gives us
But Justice Breyer let me turn back
to the -- the original purpose which was the
legislative history is quite clear on what the
purpose was As you say this was partly to
create a form of immunity to give some comfort
to these organizations But the question is
what form of immunity did they ask for and what
did they get
What they did is they came to Congress
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and said treat us like foreign governments
Give us immunity as Congress put it in a
Senate report of a governmental nature And
so what did Congress do It gave them exactly
what they asked for It said were going to
treat you as a default measure like a foreign
government
And remember the words of the
statute are same immunity Same immunity
as is enjoyed by federal governments So were
going to give you the same immunity subject to
the Presidents ability to just -- adjust it
and subject to your own ability and your own
treaty to negotiate for more and subject
thirdly to Congresss ability to give you some
immunity that you dont have even by way of
your own treaty
JUSTICE SOTOMAYOR Can we go to that
issue raised in part The special immunity I
know was even negotiated by the UN I think
in the 1990s and OAS and others but assume
that were in your regiment and Justice Breyer
made the assumption that if a lawsuit came to
us now under your theory and it was limited
immunity that the President or Congress could
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give immunity to the other side
I dont think so
JUSTICE BREYER No its the
opposite
JUSTICE SOTOMAYOR The opposite The
President cant decrease it correct So that
problem still remains with your -shy
MR FISHER Well -shy
JUSTICE SOTOMAYOR Yeah
MR FISHER -- I think it -- it may
or may not remain Justice Sotomayor
JUSTICE SOTOMAYOR Thats my -shy
MR FISHER Certainly we could -- we
would say we can go forward on this suit
because -- because there is no such law
If that law were passed youd have
two questions One is did Congress make it
retroactive And you look to Altmann to think
about how to judge the retroactivity of
immunity provisions And then if it were
retroactive whether that were permissible
But you know were a long way from
-- from that sort of a situation I think the
important thing going forward and this is I
think what the concern is on the other side
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is not so much about this case but about
incentives and policies going forward they
have every opportunity to negotiate in one form
or another or to procure a heightened form of
immunity
And Justice Sotomayor let me say one
more thing to you and Justice Breyer about you
know the idea of the executive branch getting
involved This is one of the problems I
submit with the other sides argument
Remember part of the goal of the FSIA
in the first section of the Act in Section 1602
is to get -- is to get the executive branch out
of the immunity business
Congress made the determination that
it was a bad idea to have every case turning on
individualized suggestions of immunity and
executive branch political policy And so the
other side by importing the common law of
1945 would reintroduce that problem into
international organization immunity in a way
that we dont think would be very good
politically or very workable in the courts
And Id hasten to add that even under
the rule of 1945 if the question were what
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does the executive branch think about any given
lawsuit or any given immunity for any given
type of suit that would just lead you right
back to the FSIA and it would lead you back to
the same conclusion that we submit to you here
So either pathway whether Justice
Breyer you start with the way youve always
looked at cases with the word is and the
word same and the reference canon that Ive
described and say all of those things lead you
to a time of suit rule or if you start with
the law of 1945 and say what was the law in
1945
Well Hoffman and -- in Ex Parte Peru
were clear that the law of 1945 was the
executive branch decides and its not for the
Court -- this is -- Im going to give you the
Courts own language -- its not for the Court
to give immunity where the executive branch has
not seen fit to give it
And if that were the test youd come
right back to where you -- where I started
here which is that the FSIA would control or
at the bare minimum the executive branch
position in this lawsuit on the type of
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immunity that ought to apply in this situation
would control So -shy
JUSTICE GORSUCH Mr Fisher if I can
pick up on Justice Breyers question The
reference canon I take all -- all of your
points but sometimes lets say we have a
statute that -- that refers to another statute
Usually we would look at the second
statute thats being incorporated as of the
time of -- of the adoption of the first
statute Right So if -- if this statute were
to say go look at Section 5 -shy
MR FISHER Right
JUSTICE GORSUCH -- we wouldnt look
at it the way its been subsequently amended
Wed look at it as it was originally enacted in
1945
Why isnt that -- that idea pertinent
here you know when we refer to a specific
law we dont take it to evolve over time
MR FISHER So for two reasons
Justice Gorsuch and one of them if youll
forgive me is going to be something you said
in the Alan Contoe opinion
JUSTICE GORSUCH I was afraid of
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that
(Laughter)
MR FISHER But for two reasons One
is Congress has a choice to make when it writes
legislation It can lock in a given rule by
setting a specific statutory provision and says
thats the rule we want just like if Congress
uses a particular word at the time of the
enactment the meaning of that word at the time
of enactment would be what Congress -- wed
assume Congress wanted
Or Congress could do something
different which is to say look were not
sure exactly of the metes and bounds of the
law Were just going to tie it to this other
area of law as a general matter And thats
what Congress did here It did the latter
So it took an area of law as a point
of reference and said Just use that as the
default rule and then adjust as necessary And
those are just two different pathways Congress
can go down
And they date as I said all the way
back to the First Judiciary Act there in the
Sutherland treatise all the way back to 1904
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and so theres just two different pathways
Congress can go down
And it makes perfect sense I think
in a situation like this especially where you
have a common law doctrine being referenced at
least a common law at the time and one that
was indeed not just any old common law
doctrine but one that was in a great deal of
flux at the time So it made every reason -shy
it made every good reason for Congress to have
a general reference not a specific one
And then the second reason Justice
Gorsuch is the one you mentioned sitting on
the Tenth Circuit which is that as time goes
by it becomes all the more stilted or
antiquated or even foolish sometimes to try to
answer questions in the modern day according to
what some bygone era doctrine would have
required and especially a bygone era doctrine
like this
If I understand the other sides
position correctly basically the question
theyre having -- they would want every federal
court to ask in these cases is what would the
Truman Administrations State Department have
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wanted to do in this case
And when you have things like this
which didnt even -- an organization that
didnt even exist at the time sometimes doing
activities that werent even contemplated at
the time things like sovereign wealth funds
which foreign sovereigns now engage in for
example who knows what the State Department
would have thought then
I think theres every reason then to
fall back on the reference canon And if I can
say one more thing before reserving my time if
you have any doubt about just the plain text
argument Ive given you I would urge you to
compare the text in Section 288a to the text -shy
Section 288d which has the exact dichotomy
that -- that Ive been discussing today
One subsection subsection (a) says
that the same immunity rules apply and
subsection (b) says that foreign officials -shy
Im sorry international organization officials
are entitled to absolute immunity
So this is yet another reason why if
the other side were correct and if Congress had
wanted to lay down the rule they did why would
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they not have just used the absolute immunity
language in subsection (b) of subsection (d)
and that indeed was the original draft of
this act that was discarded
So I could go on but Id rather save
the rest of my time for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Ellis
ORAL ARGUMENT OF JONATHAN ELLIS FOR
THE UNITED STATES AS AMICUS
CURIAE SUPPORTING THE PETITIONERS
MR ELLIS Mr Chief Justice and may
it please the Court
If I could Id just like to pick up
right where my friend left off Theres been a
lot of discussion so far this morning on the
text of Section 288a We agree that the
Petitioners have the far better reading of that
phrase in isolation but I think it really
settles the deal when you look at the entire
structure of the Act
The -- the IOIA doesnt just grant
immunity in Section 288a(b) but it provides a
whole host of immunities and it does it in two
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different ways In several different
provisions the Act sets a fixed rule of
immunity So archives are inviolable and
officers and employees of the organizations are
immune from suit with respect to their official
acts
And then there are a -- a host a
collection of three provisions that set the
immunity by reference to foreign governments
Theyre Section 288a(d) Section 288d(a) and
theres Section 288a(b) the one at issue here
Respondents concede that the
referential language in those other two
provisions do refer to the state of the law as
it is today
Its only the one thats at issue in
this case that they say was frozen We dont
see how that can be and thats particularly
true when you look at the drafting history that
my friend referred to
JUSTICE KAGAN Mr Ellis before you
get to that another part of the structure is
this provision that deals with presidential
authority and thats essentially a roll-back
authority of immunity
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Doesnt that make a lot more sense
that provision if you assume that Congress
meant for there to be absolute immunity In
other words the presidential authority is a
one-way ratchet The President can only under
this provision roll it back It cant increase
it
So to me if I -- if -- if -- if -shy
if the immunity -- if the immunity is less than
absolute you would think that they would have
given the presidential authority both ways
MR ELLIS Sure The reason that
argument doesnt work is because Section 288
the Presidents authority under that provision
doesnt just apply to Section 288a(b) It
applies to all of the immunities provided by
the IOIA
And as I was just describing some of
those are fixed immunity rules that are not
absolute And so for instance the officers
and employees of international organizations do
not receive diplomatic immunity That was a
big deal at the time
And -- and yet the President cant -shy
couldnt grant that up I think what that
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provision shows is that Congress wanted to
provide international organizations at most the
immunity from suit and other privileges of
immunities that foreign governments received
and not more so
And yet Respondents are here today
asking you for exactly that more immunity -shy
JUSTICE BREYER But on that -shy
MR ELLIS -- than foreign
governments receive
JUSTICE BREYER But look whatever
other things it refers to the provision allows
the President to waive immunity not to grant
immunity And your argument is they have
immunity Right
Do I have -- I get this backwards
This is the third time Ive got it backwards
(Laughter)
JUSTICE BREYER Sorry The provision
allows the person to be sued Is that right
MR ELLIS It does allow them to be
sued
JUSTICE BREYER Okay So I was
right I had it backwards the first time but
not the second not the third all right
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(Laughter)
JUSTICE BREYER It allows the
President to waive the immunity
MR ELLIS Thats right
JUSTICE BREYER Okay It doesnt
allow him to grant the immunity
MR ELLIS It does in a sense I
mean -shy
JUSTICE BREYER But the power to
waive the immunity at least in this section
amounts to nothing if they have no immunity
because for example all they do is lend
money
MR ELLIS So -- so a couple -shy
JUSTICE BREYER Thats -- thats -shy
and the other way it seems to work itself out
MR ELLIS Understood
JUSTICE BREYER Okay
MR ELLIS A couple responses to
that Your Honor
JUSTICE BREYER Thats the question
I think
MR ELLIS Glad to be able to address
that Number -- number one just to be clear
we -- they do have a great deal of immunity I
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mean foreign -- international organizations
and foreign states are presumptively immune
And I would agree with almost everything
that -- maybe everything that -- that my friend
said about why the commercial activity
exception even with regard to IFC and -- and
most -- more importantly with regard to the
vast sweep of these organizations is not going
to eliminate immunity
I would add one more is that even a
case like this we have serious doubts I
think -- we think in fact from what we know
this suit isnt going to be able to go forward
regardless of the answer to the question
presented because in addition to having -- to
being connected in some way to commercial
activity there must be a much stronger nexus
It must be based on commercial activity that
occurs in the United States
We think the Courts decision in OBB
makes clear that the way you apply that is to
ask Whats the gravamen of this suit Its
not enough to have some attenuated connection
but whats the gravamen
And the gravamen of this suit as we
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understand it is -- is tortious conduct that
occurred in India injuries that occurred in
India And we dont think -- we have serious
doubts that this is going to be able to go
forward even under restrictive immunity
And so we do not think that what were
doing is opening the floodgates here rather
that the sort of concerns that would be barred
-- cases that would be barred by Respondents
absolute rule of immunity and would be allowed
by ours are -- are sort of quintessential
domestic disputes contract disputes with your
contractor who renovated the building the slip
and fall at the -- at the organizations
headquarters or the driving accident on the
streets of New York and DC
JUSTICE SOTOMAYOR Do you have -- do
you have any idea about how many of these kinds
of organizations are headquartered in the
United States
MR ELLIS I think the numbers are in
the 20 to 30 range Theres about -- somewhere
80-some organizations that have been designated
for protection under IOIA and 20-some that have
-- I think are headquartered in the United
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States
JUSTICE SOTOMAYOR That are
commercial like this one
MR ELLIS No no no No I did
not -- no
JUSTICE SOTOMAYOR Were -shy
everybodys assuming -shy
MR ELLIS Right
JUSTICE SOTOMAYOR -- a floodgate
MR ELLIS Sure no There are -shy
JUSTICE SOTOMAYOR Including Justice
Breyer
MR ELLIS -- there are a number of
development banks but even then even -- even
the development banks even if you talk about
the World Bank its not clear that those
commercial activities are the sorts that the -shy
the FSIA captures with the commercial activity
exception Lending there is to sovereign
governments
And -- and as the Court has been -- as
lower courts have explained that sort of
commercial activity is not the sort that a
private party could engage in So its not the
sort that the commercial activity exception
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picks up
JUSTICE BREYER Well I -- I have the
IFC the IMF the World Bank the
Inter-American Development Bank the Asian
Development Bank the African Development Bank
the International Development Association So
I -shy
MR ELLIS Sure I -shy
JUSTICE BREYER -- Ive got -- thats
only half of them
MR ELLIS Thats -- that -- Im not
sure what percentage that is I want to point
out that some of those organizations -shy
JUSTICE BREYER There are a lot
MR ELLIS -- have their own immunity
provision in the -- in their charter And so
thats what we think -- if you look at the
history thats what -- thats how it has been
dealt with for organizations that require
absolute immunity Weve entered into
agreements
I would point again to the OAS
agreement where the State Department is just
crystal-clear that what OAS did in that
agreement was to negotiate absolute immunity
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because they thought thats what they needed in
order to put their headquarters here
JUSTICE KAGAN But Mister -shy
MR ELLIS We agreed to that and we
said But hey this is not our usual
practice Ordinarily we -- we afford only
restrictive immunity We point to the FSIA
JUSTICE KAGAN Mr Ellis I -- I
guess Im not sure I -- I quite understood what
you meant As to the core lending activities
of these multinational development banks in
other words making loans where private actors
would not make loans do you have a view as to
whether that counts as a commercial activity or
not
Did you say that that would not count
as a commercial activity because theyre making
loans that the -- that the private market would
not make
MR ELLIS No Im -- Im not saying
that its -- that its enough that theyre
making loans that a -- that a private -- they
couldnt find a private party to provide Im
saying if the nature of the loan is such that
its -- its not the sort of transaction that a
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private party would enter into so think about
the IMF that grants -- that lends to sovereigns
and they do so on the requirement that the
sovereign enact certain restrictions -shy
regulations and change their -- their -- their
laws in order to assure that they dont need
the money again
That is the sort of thing thats been
held by lower courts and weve advocated is
not a commercial activity Thats just not the
sort of transaction that a private party can
enter -- enter into Its not just that a
private party didnt Its that -- that no one
-- thats not something that you can do
Thats a sovereign act
JUSTICE BREYER But can you give
me -shy
MR ELLIS Or a quasi-sovereign act
JUSTICE BREYER -- anything to assure
me because when I looked through this list I
thought that there were development banks like
the World Bank which is a pretty big deal as
well as in Asia in Africa were trying to
encourage development all over the world and
suddenly by removing the sovereign immunity
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because the plaintiff will claim this is a
commercial activity
MR ELLIS So -- so -shy
JUSTICE BREYER And youre not
denying it
MR ELLIS And so -shy
JUSTICE BREYER So what is the
assurance that the government can give us that
this isnt going to lead to a lot of lawsuits
and this isnt going to interfere with perhaps
activity that the United States traditionally
has been very much in favor of
MR ELLIS Absolutely Let me -- let
me give you a couple things I think weve
given you a number of -- of points already this
morning as to why we dont think the floodgates
are going to open
If -- if theres one more Ill say
just look at the -- the charter of these
organizations Look at the IFCs charter
They already waive suit waive immunity for
suits going directly to their core activities
They -- they in fact indicate that they -shy
they need to waive suit in these suits
And so I -- I think when youre
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talking about what are the suits that are going
to come up under commercial activity many of
them are already going forward because the IFC
and the World Bank and others have waived their
immunity
JUSTICE GINSBURG And they need to
because
MR ELLIS They need to because no
ones going to enter into a financial
transaction with them if they -- they know they
cant sue if it -- if it goes south
The other thing -- I want to also
focus the Court on the -- on the suits that we
know are not going to go forward on the
absolute immunity side Were talking about
suits by -- by US citizens and residents
about domestic conduct and theyre seeking
redress in US courts
These are the suits that foreign
governments are -- are able to be sued on and
dont have immunity And we dont see any
reason why international organizations should
not also be subject to suit in those
circumstances and we think thats exactly what
the Congress was trying to do when it enacted
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Section 288 in 1945
If there are no -- no further
questions we ask the Court to reverse
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Verrilli
ORAL ARGUMENT OF DONALD B VERRILLI
ON BEHALF OF THE RESPONDENT
MR VERRILLI Thank you Mr Chief
Justice and may it please the Court
The IOIA prescribes a standard of
virtual absolute immunity that is fixed and not
evolving We know that because the text
incorporated common law terms that had a
settled meaning of virtually absolute immunity
and because a fixed standard makes the most
sense in light of the statutory context and
purpose
Now the reason that Congress enacted
the IOIA was to fulfill treaty obligations that
committed us to provide virtually absolute
immunity Those treaty obligations did not
commit us to treat international organizations
the same as foreign states were treated They
committed us to the substantive standard of
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virtually absolute immunity
And therefore if -- if -- if the
language in section 288b is interpreted in the
way my friends on the other side suggest -shy
JUSTICE SOTOMAYOR So why didnt
Congress say that the way it did in the other
provisions of this Act And if it intended
that in no change it could have said it and
given the very exception it gave which is that
the President or the executive could reduce
immunity which was the standard at the time
MR VERRILLI So let me start with
the basic question We think if the Court
applies the normal rules of construction that
it applies in statutory interpretation cases
that Congress did say that it was providing
virtually absolute immunity
And I think a case in particular that
I would point the Court to is the Nader
decision 527 US and in particular to page
21 of the Nader decision Thats a case -shy
that case of course was about whether mail
fraud and wire fraud incorporated a materiality
standard This is an opinion by Chief Justice
Rehnquist unanimous for the Court on this
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point The Court said first we look to the
text of course and when looking to the text
if we -- if -- and in looking to the text
based solely on a natural reading of the full
text materiality wouldnt be an element of the
fraud statute
And then the Court says But that
does not end the inquiry because in
interpreting statutory language theres a
necessary second step And this is -- Im
coming to the point that I think governs here
which is that it is a well-established rule of
construction a rule of construction that
where Congress uses terms that have accumulated
settled meaning under the common law a court
must infer must infer unless the statute
dictates otherwise that Congress means to
incorporate the established meaning of those
terms Now the -shy
JUSTICE GINSBURG What about the
argument that there wasnt an established
meaning in -- what was it -- 1945 that it -shy
the -- the status of the immunity was in flux
It had been absolute but then we were going
over -- the State Department was advising the
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court whether immunity should be given in a
particular case
MR VERRILLI Theres a bit of a
suggestion to that effect in the brief of the
United States Your Honor but I would
respectfully suggest that is not a fair
characterization of where things stood in 1945
at all
It is true that some people within the
State Department in 1945 thought that immunity
should move to a more restrictive standard but
the Justice Department would not even advance
that standard in this Court at the request of
the State Department and this Court did not
describe the immunity as being in flux This
Court said the standard was virtually absolute
immunity
If one looks even in 1952 at the Tate
Letter the Tate Letter didnt say the law was
in flux in the United States It said the
United States was hewing to the standard of
virtually absolute immunity but other
countries were moving towards a standard of
restrictive immunity and therefore we ought
to reconsider what were doing
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So I just -- I mean the Court can
read these materials for -- for itself but I
just respectfully do not think its a fair
consideration of where things stood in 1945 at
all
And then if I could Id like to pick
up on a related point that came up in the brief
of the United States Its another statement
in the brief of the United States and it came
up in argument today that look this really
isnt a problem because for those organizations
that need immunity that goes beyond the -- the
restrictive immunity weve always understood
that they get -- they can go get a special
statute and theyve gone and gotten special
statutes
The United States says on page 27 of
its brief precisely because the IOIA didnt
provide that level of immunity they give these
three examples IMF World Trade Organization
and Organization of American States
Id like to take a minute and go
through each of them because it doesnt hold up
with respect to each of them With respect to
the IMF for example it is true the IMF you
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know it has a -- has a treaty There was a
statute that gave that treaty effect under US
law which ended up providing for absolute
immunity
But it cant possibly be that that was
undertaken based on any sense that the IOIA
didnt provide that level of immunity because
the IMF statute was enacted in July of 1945
and the IOIA wasnt enacted until five months
later So it cant possibly substantiate what
the government was saying
If one looks at the WTO treaty it is
true with respect to that treaty that it
committed us to a very wide scope of
immunities It said that the United -- that
the United States will commit to providing all
or virtually all of the immunities provided
under a whole different UN convention the
UN convention on specialized agencies
Now that convention has all kinds of
tax immunities and property immunities that go
way beyond what the IOIA provides So of
course they needed another statute in order to
make those treaty commitments That doesnt
prove anything about whether anybody thought
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that the IOIA failed to provide virtually
absolute immunity
In fact the historical evidence I
think really to the extent it points in any
direction it points very much more in our
direction And the best way to see that is
with respect to the way the United Nations was
treated under -- by the executive branch in
this country
Now we signed the UN charter in
1945 committed us to provide what the charter
describes as the necessary immunities Then
the UN Convention on Immunities was
negotiated in 1946 which said that the UN
should get virtually absolute immunity Not
the same immunity as foreign states virtually
absolute immunity
Now the United States did not ratify
that convention until 1970 So on the theory
that my friends on the other side have from
the moment of the Tate Letter in 1952 when
foreign state immunity became restrictive and
not virtually absolute anymore we were in
violation of the commitment we made in the UN
charter
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Now if that was true you would
certainly expect the State Department A to
address it in the Tate Letter but theres
nothing in there Its a classic case of the
dog that didnt bark And B you would expect
them to try to do something about it like get
the UN Convention ratified immediately
because otherwise we were going to be out of -shy
out of compliance with our obligations to the
granddaddy of all international organizations
the United Nations
But theres not a -- from 1952 until
the ratification of the Convention in 1970 you
cant find one word by anybody in the executive
branch ever saying that What you do find -shy
JUSTICE SOTOMAYOR What commercial
activities was the UN doing at that time
MR VERRILLI Well -shy
JUSTICE SOTOMAYOR I know today its
a very different organization but its not
clear to me that there was much going on that
was commercial at its initial stages
MR VERRILLI I take that point Your
Honor but what I would say in response is that
there was a very great deal of sensitivity
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about the whole package of -- of immunities
that were available to the UN and its
diplomats and its -- and its workers
And there was concern all along from
1952 to 1970 that -- that -- where the
executive was urging Congress to ratify the
convention but the only things ever mentioned
were the diplomats -- immunities for diplomatic
individuals
And then when you get to 1970 and you
actually look at the Senate report accompanying
the ratification this was not in our brief
but its at page 31 of the brief of the -- of
the scholars who filed the brief in support of
us It quotes the Senate report from 1970 and
what the Senate report says is were not
granting the UN any -- the UN as an
organization any immunity it didnt already
have under the IOIA
So as late as 1970 it was just quite
clear that everybody understood the IOIA
conferred virtually absolute immunity And of
course thats because it was -- it was enacted
to comply with our treaty obligations
It wasnt enacted to make sure that
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come what may that international organizations
would get treated the same as foreign states
That is -- you know thats the best way to
think about it is its just a completely
anachronistic way of thinking about the body of
materials in front of you
JUSTICE KAGAN But even what you just
said Mr Verrilli it wasnt enacted to make
sure that foreign organizations would get
treated the same as foreign states
I mean thats exactly what the
language of the thing says
MR VERRILLI Well so I guess a
couple of things about that I think the right
way to think about the language Justice Kagan
is that it was a means to an end in 1945 when
it was enacted
It was not the end in itself to assure
equivalence of treatment come what may It was
the means by which Congress ensured that it
would fulfill its treaty commitments which were
-- and those treaty commitments were to provide
virtually absolute immunity
And we know the Senate report says
were enacting this provision to fulfill our
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treaty commitments And our treaty
commitments again were not to treat them the
same They were to provide virtually absolute
immunity So -shy
JUSTICE KAGAN Do you think it was -shy
you answered Justice Ginsburgs questions about
how far we were from the Tate Letter in 1945
but do you think it was inconceivable to
Congress that the common law of immunity would
change
MR VERRILLI Well I -- I -- I cant
say that it would be inconceivable to anybody
but what I can say is if one looks at the
debates surrounding the passage of the IOIA
is once again its a dog that didnt bark
You cant find a single person
anywhere saying anything remotely like the
proposition that we need to adopt a standard
that will evolve over time because we have a
concern that foreign sovereign immunity law
will evolve over time
That just was not any part of
anybodys thinking at that time They were
trying -- you have to remember this is coming
out of the Bretten Woods system We have
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Bretten Woods We set up all these
organizations
They have a -- they have a desperate
mission in front of them to try to rebuild the
world -- the world after the carnage of World
War II Theres a lot of pressure on Congress
to get these organizations up and going and
give them the immunity we promised them so they
can go out and do their work Thats what led
to the enactment of the IOIA
It was none of these other things as
I said I really think if you look at the
historical materials its the -- the gloss
that my friends on the other side are trying to
put on it is completely anachronistic
Theyre taking a different concept
that theyve come up with now and trying to
retrofit the historical facts to match it and
it just isnt right
JUSTICE BREYER Is that -- is that -shy
the Russians at that time 45 and so forth
were putting all these businesses into state
entities So my guess is there were -- there
were a number of cases and what I thought I
heard Mr Fisher say is if we really go back
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and look at this well see that the status quo
before this passed was not absolute immunity
but the status quo was a kind of mess where
sometimes the State Department would say give
them immunity and sometimes the State
Department would say not
Now what is the actual situation as
far as youve been able to find it
MR VERRILLI Well I dont -shy
respectfully with respect to my friends on the
other side I dont think thats a fair
characterization of the historical materials
JUSTICE GINSBURG Thats the same -shy
the answer you gave to me is the answer you
would give to Justice Breyer
MR VERRILLI Yes
JUSTICE GINSBURG Same question
MR VERRILLI Yes I mean its just
not there I mean look at what this Courts
cases said This Courts cases didnt say
anything like that
The -- the -- the governments briefs
to this Court didnt say anything like that
When this Court has looked back on the law in
Verlinden and in Samantar it hadnt said
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anything like that It said the standard was a
common law standard of virtually absolute
immunity
And thats in fact how the Tate
Letter describes it too And then as a process
matter -shy
JUSTICE BREYER Okay I got it
MR VERRILLI -- my friends on the
other side have made this argument that well
our position would also require you to go back
to the process of the State Department making
an ad hoc case-by-case determination but
thats wrong too
And thats clear on the face of the
statute that its wrong And the reason -- and
-- and thats right in Section 288 This
creates an entirely different mechanism
What the -- what the IOIA says is that
-- that the President shall have the authority
under executive order once Congress has
enacted a statute to grant an international
organization the privileges and immunities
And if you look at the face of the
statute its obvious that they are granted on
a categorical basis in gross by an executive
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order not on a case-by-case basis by the State
Department when -- when a lawsuit is -- or when
a -- when a lawsuit is filed
And then similarly in terms of the
Presidents authority as to an executive order
to reduce or eliminate the -- the immunity of
an international organization that -- its -shy
again its completely different than the
situation that -- than the common law process
at work So obviously Congress made a
judgment that it was going to put a different
structure and system in place
And the fact that Congress did that I
do say -- I do think quite clearly presupposes
that theres a -- the existence of a
substantive standard being prescribed And the
substantive standard as I said is virtually
absolute immunity
And then in terms of the structural
indicators in the statutory text going back to
a question you asked Justice Sotomayor I
really think the most telling one to -- to
show you I think why my friends on the other
sides case is completely anachronistic and
were correct -- is Section 288f which you can
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find at page 6a of the appendix to the blue
brief
That provision says that the
privileges exemptions and immunities of
international organizations and then of -- of
members and employees et cetera shall be
granted notwithstanding the fact that similar
privileges exemptions and immunities granted
to a foreign government et cetera et cetera
may be conditioned upon the existence of
reciprocity by that foreign government
So right there in the text it
decouples the treatment of international
organizations from the treatment of foreign
states Even in a situation in which the
United States would not grant the full range of
virtually absolute immunity because it wasnt
being -- receiving reciprocal treatment this
statute says the international organization
gets it So -shy
JUSTICE GINSBURG How do you deal
with the argument that we just heard that we
can compare 288a on the one hand which -shy
which keeps the international organizations in
tune with foreign sovereigns and 288 -- was it
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b and d
MR VERRILLI Yes I do think that
the -- the differences break down into two
categories Your Honor There -- some of the
provisions do prescribe fixed standards
Thats true But those fixed standards as we
explained in our brief or at least tried to
are always situations in which the IOIA is
conferring a narrower set of immunities on -shy
on diplomats and individuals than the common
law would have at the time
So incorporation of the standard in
the way this 288a(b) did wouldnt accomplish
the objective there because there was -- they
were quite consciously trying to narrow the
overall scope of immunities and not give the
individuals who worked at these organizations
the same full treatment that diplomats got who
-- from foreign states
Now the second subcategory are the
provisions where the -- the statute says that
their -- the treatment shall be the same But
theres two things about that that are
significant
One is it says they shall be the same
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as under another statutory provision And as
we said we think thats vitally important
here We think its quite clear that in
addition to Justice Breyers points about the
reference canon that the reference canon
applies when one statute incorporates another
It doesnt apply when one statute incorporates
the common law And here they were
incorporating statutes
And if you look at those provisions
anyway theyre basically just instructions to
the executive branch when do you fingerprint
the people when theyre coming in What do you
do about that -- this detail or that detail
They dont go to the heart of the
matter at all And the heart of the matter
here is the immunity being conferred on these
international organizations
I just want to make a point about that
and then if I could talk about the
consequences that will ensue I think if we go
down the path that my friends on the other side
are suggesting
I think this is a critical point I
just want to make sure its clear Another
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reason why you shouldnt draw this equivalence
-- and it cant be that Congress really
intended to draw an equivalence between foreign
states and international organizations such
that they would just move in tandem no matter
what -- is that immunity is granted for
different reasons
The reason you give an international
organization immunity is a functional reason
not a status reason Its not about according
the appropriate respect to the sovereigns
because international organizations arent
sovereigns Theyre separate juridical
persons And whats quite clear -- its clear
from the U -- the San Francisco report on the
foundation of the UN its clear from the
Senate report in 1945 its clear from all the
commentators that we discussed in our brief
its clear from the Restatement of Foreign
Relations which weve cited in our brief that
you grant immunity to international
organizations so that they can carry out their
functions effectively And -- and just take -shy
let me take a minute and kind of elaborate on
that because I think its critical
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Remember these are -shy
CHIEF JUSTICE ROBERTS If you dont
mind Im afraid Im about five minutes behind
you here but going -- going back to your point
on 288f you said its there theyre decoupling
the international organizations and the foreign
sovereigns But as I go back and read it
its simply because the -- the foreign
sovereigns have the capability to use
reciprocity and the foreign -- and the
multi-country organizations do not
I dont -- I mean thats the
difference theyre drawing there not something
between the scope of the actual immunities
MR VERRILLI Well I -- well the
way I read it Mr Chief Justice is what -shy
what theyre doing there is saying even in a
situation in which the United States concludes
that it wont afford a foreign sovereign the
full virtually absolute immunity because of
reciprocity in other words were not getting
it back from them even in that situation an
international organization of -- where those
sovereigns are members will still receive the
full level of immunity
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And so I think what that tells us is
that what Congress was trying to do in this
statute overall was prescribe a fixed
substantive standard not a floating standard
where the two things move in tandem So -- and
I -- I do think it supports that
And if I could just go back to the
functional point remember these are
collective bodies and members come together
they make -- they -- they take resources from
each of their own countries They put them
into these organizations They make collective
decisions about how to deploy those resources
And the point of the immunity here is
so that the courts of any country but
especially the host country which for the most
important organizations are going to be here in
the United States cant override the
collective judgments that they make about how
their resources would be deployed and what
conditions they ought to impose et cetera by
the intervention of domestic law in US courts
and cant redirect the funds that are put into
these organizations to pay massive class action
tort judgments because of course the member
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countries are contributing this money because
they believe its going to be put to the use
that the -- for example the development bank
the development bank decides it should be put
to not to pay massive tort judgments
And I think one place you see this
very clearly if you look at the report of the
San Francisco conference about the founding of
the UN the State Departments -shy
Departments response coming -- report coming
out of that conference specifically says this
It says of course the United Nations cant be
subject to the jurisdiction of any one state or
its courts
And its for exactly this reason And
the same thing is true generally Thats why
you give it not for functional reasons -- I
mean excuse me not for reasons of status but
for functional reasons
And I think a key -- another key
reason why you shouldnt be thinking about this
as a standard that evolves evolves now and
over time is that those functional reasons
dont evolve now and over time
CHIEF JUSTICE ROBERTS Well what
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about the point that most of the concerns you
have are going to be dealt with by the
requirement of a nexus to activity in the
United States as opposed to simply abroad
where the projects are funded
MR VERRILLI Yes I was gratified
to hear the United States say that but -- and
-- but I could just -- Ill answer Your Honors
question directly but I want to broaden it out
a little bit because I think what essentially
the United States is saying here is look the
statute leaves one with no choice but to apply
restrictive principles of immunity Youve got
to jump off that cliff but dont worry it
will be a soft landing because the FSIA will
take care of a lot of these problems
And I guess what I would say about
that is in the unlikely event you dont agree
with me I -shy
(Laughter)
MR VERRILLI -- I hope theyre
right But theres no guarantee that theyre
right
JUSTICE BREYER Are the -- are the
lending decisions which may be fairly detailed
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and may include dozens of conditions made
within the United States
MR VERRILLI Well yes I think
thats a big part of the problem and -shy
JUSTICE BREYER Is there -- are there
lawsuits that could say that there was
negligence in determining in a different
country who the persons were or the conditions
under which the money would be spent Is that
an American lawsuit saying what youve done
here is commit the act of negligence or failure
to be a fiduciary here
MR VERRILLI Thats this lawsuit
Thats this lawsuit Justice Breyer Thats
exactly what theyre alleging
CHIEF JUSTICE ROBERTS Well but I
mean is that consistent with our opinion in
the OBB case which I think -- if the complaint
is based the gravamen of the complaint not
specific steps along the way and that was the
issue we dealt with in that case
And I appreciate the fact that its
you know to some extent dependent on the facts
and particular allegations but it would seem
to me to require a lot more than simply the
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specific decisions I think where -- wheres
the gravamen or gravamen however you say it
with whats going on here
MR VERRILLI Well we would
certainly say its India of course
CHIEF JUSTICE ROBERTS Yeah
MR VERRILLI And if -- if we have to
defend ourselves on that basis we will But I
-- but I -- I think it -- it understates the
real concrete risk here And what Id like to
do to illustrate that if I could is first
talk about the organizations that are going to
be exposed in a way that they wouldnt be under
the law
And as Justice Breyer indicated
earlier its important to remember this has
been the law in the DC Circuit for decades
and theres -- and people have ordered their
affairs based on the assumption that there was
virtually absolute immunity
But with respect -- but with respect
to the consequences and the groups affected and
then the types of effects With respect to the
groups affected youve got entities like us
the multilateral development banks And
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Justice Breyers identified many of them
Now the -- the main ones are here
here in Washington DC and theyre making
their decisions here and I think critically
too there are billions of dollars of assets
here
Now were going to make the OBB
argument for sure and I hope we win if we have
to make the argument I hope we win But who
knows how courts are going to come out on that
issue
Were going to have a lot of fighting
about that There are probably going to be
matters of degree Theres certainly going to
be significant disincentives arising out of
that uncertainty
Theres a whole another group of
entities that unlike the banks at least have
articles of agreement where we can try and fall
back on those for alternative arguments of
immunity where their immunity depends entirely
on the statutory grant the International
Committee of the Red Cross the World Health
Organization the fund to fight -- the global
fund to fight AIDS and tuberculosis and
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malaria
They are all entirely dependent on the
IOIA for their immunities and those immunities
are drastically different after this And then
we do have the issue I think with some
organizations that we may even actually now be
out of our -- out of compliance with our treaty
commitments
Now whats going to happen Heres
what I think is going to happen and I think
this lawsuit helps you see it
Now the way -- the basis of this
lawsuit is the following IFC when it loans
money here its loaning money in -- in parts
of the world where private capital wont go
unless we go in there
And very often they have un-developed
legal systems and they certainly dont have
robust environmental protections or labor
protections So what the IFC has done is lien
into those put those kinds of environmental
standards and labor standards into its
agreements saying you want this money to do
this development project these are the
standards that youve got to live up to
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And -- and this lawsuit is that -shy
that the entity that we loan this money to
didnt live up to the standards and its our
fault And so were being sued here
Well its going to create -- if that
kind of a suit can go forward and hopefully it
wont be able to Mr Chief Justice but if it
can its certainly going to create an
extraordinary disincentive for organizations
like ours to lien into those kinds of standards
because were going to be hoist by our own
petard
Now weve also got a robust internal
accountability mechanism where if people think
something has gone wrong on one of our
projects they can come to us and they can say
-- they can say look theres a problem here
And they -- and we investigate We take
internal remedial measures if we find theres a
problem
Well you know the factual basis for
the lawsuit is the report of our internal
accountability process
So if they can just grab that and take
it into court and make it the basis for a class
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action tort lawsuit in which they can make a
claim for all this money its going to create
a powerful disincentive for us not to engage in
that kind of self-policing activity
And I would submit that you know
even if things ultimately work themselves out
under the FSIA and I hope they -- I hope we
dont have to deal with that but even if we
do its going to take a very long time There
are going to be a lot of difficult cases at the
margin There are going to be very serious
disincentives immediately
And conversely you know were a big
fat target here These organizations have lots
of money And of course foreign plaintiffs
want to sue here They can bring a class
action They get liberal discovery They can
get punitive damages They get all of these
advantages by suing here
So instead of suing the person that
actually injured them the power plant in
India they come here and sue us
And I really think what you are going
to see here is that this is just going to
become another version of the sorts of
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foreign-cubed lawsuits that the Court has been
concerned about under the Alien Tort Statute
where the international organization is just
going to be subbed in for the foreign defendant
and its going to be subbed in in a situation
where were going to have a very significant
pile of money
And if I could just close with this
thought -- Im just going to pick up on Justice
Breyers thought -- the law in the District of
Columbia where virtually all these
organizations have been housed are
headquartered has been virtually absent
immunity under DC circuit law for decades
Thats the standard everybody has been
operating on
Nobodys suggested that anything has
gone wrong under this statute that there are
any deleterious policy consequences that the
interests of the United States are adversely
affected in any way In fact if you look at
the amicus brief from the former Secretaries of
Treasury and State they think that the policy
of the government arguing now is going to
disrupt the United States ability to function
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effectively with these organizations
It has all been fine And -- but
theyre asking you essentially to repeat a
metaphor to jump off a cliff And hopefully
it will be a soft landing But we dont know
that And it could easily result in a lot of
disruption to the good work that these
organizations do
And I guess what I would suggest is
that if thats going to happen it ought to
happen through legislation Congress can look
at this Congress can change the law if it
wants to But this has been the law for a very
long time There is no evidence that it has
done anything other than work well
And therefore I think the Court
should affirm the DC Circuit Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Four minutes Mr Fisher
REBUTTAL ARGUMENT OF JEFFREY L FISHER
ON BEHALF OF THE PETITIONERS
MR FISHER Thank you Id like to
make four points and Id like to start with the
text of the statute itself and simply say when
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Mr Verrilli talks about the Neder Doctrine and
the Common Law Doctrine that you look at the
term a terms meaning at the time of
enactment Hes mixing apples and oranges
And I think all the citations in our
reply brief should make it absolutely clear
that theres a doctrine on the one hand that
talks about incorporating a body of law and
theres a doctrine on the other hand about
giving meaning to a specific term Were in
the former camp here
And as to the point about whether the
common law was evolving at the time two
things Well stand on the papers as to the
fact that it was somewhat in flux
But the more important point is even
if it werent in flux it wouldnt matter one
wit because the other side is making a
sweeping proposition which is any general
reference to common law is fixed in time
That would disrupt any number of
federal statutory regimes from the Federal
Tort Claims Act enacted the year after this
statute the Equal Access to Justice Act the
federal governments piracy statute Federal
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Rule of Evidence 501 I could go on and on
with federal statutory regimes that reference
the common law in exactly the same way the
statute does here
The Civil Rights Act of 1866 if you
want one more All of those would come out the
other way from this Courts jurisprudence and
from all the understanding if the other side is
right about statutory interpretation
So I think the only thing the other
side has is they have a bunch of policy points
to make for this Court
Now we dont think they should
control but let me answer them So first as
to our treaty obligations So one about at the
moment of enactment My friend kept saying
that there were various agreements in place
that required virtually absolute immunity
None of the agreements use those
words Instead what those agreements said is
that certain organizations were entitled to
immunity to allow them to perform their
necessary functions Thats a very different
thing than absolute immunity
And its very different because none
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of the organizations involved were performing
Justice Sotomayor commercial activities that
were essential to their core functions not the
UN not any of the other organizations
So we werent in breach of any treaty
rights And if you have any doubt on that I
would urge you to look to the federal
governments position then and now Its not
just a brief filed in this Court
It is the position that four different
Presidential Administrations have taken The
Carter Administration right after the FSIA was
passed the George H W Bush Administration
the Clinton Administration and now the Trump
Administration have all consistently held that
the FSIA rules are incorporated into the FSIA
Next on the floodgates concern I
explained earlier and I hope you will think
about the fact that while the core activities
of the IFC might be commercial activity not
all of the IFCs activities are and certainly
not all the activities of international
organizations are
But let me add one more thing My
friend talked about big lawsuits of ruinous
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liability Well theres two very easy ways to
control that
One is to the extent any claims are
on contracts they can write their own
contracts and negotiate their own contracts
As the Solicitor General points out they can
even deal with third-party beneficiaries in
their contracts if they choose
Secondly as to tort claims they can
and in fact commonly do indemnify themselves
against tort lawsuits In this very case
their agreement indemnifies them against any
judgment and all legal fees
So these organizations have every
manner of method to deal with any potential
liability And in fact they are which sort
of belies the suggestion that they think
theyre absolutely immune from lawsuit
Finally let me say one thing about
the so-called foreign cubed problem or the
facts of this case Now obviously we think
that we would satisfy the gravamen test They
have never made that argument And if they
want to make it we can -- we can have that
conversation in the lower courts
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But bear in mind what youre being
asked to do in this case is to announce a
categorical rule for all cases dealing with
international organizations
So my friend in the Solicitor
Generals Office talked about just regular tort
slip and fall cases and the like in the United
States Let me give you one other thing to
think about
Some international organizations
actually do their work in the United States
The border cooperation -- the Border
Environmental Cooperation Commission does
wastewater treatment plants in Texas and
California
I cant think of any reason why they
would be immune from those infrastructure
projects in a way that no private business or
public government would be
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1206 pm the case
was submitted)
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1 392151723 4122 4223 433
452 462 4718 4817 5220 57
allegations [1] 5624
alleging [1] 5615 B
1108 [2] 115 32 20 651824 allow [3] 2321 246 6522 back [22] 44 61420 10513 11
1206 [1] 6822 Absolutely [3] 3113 646 6718 allowed [1] 2610 17 154422 172425 1911 226
1602 [1] 1412 Access [1] 6424 allows [3] 231220 242 4425 4524 4610 4720 5247
17-1011 [1] 34 accident [1] 2615 almost [2] 719 253 22 537 5820
1866 [1] 655 accompanying [1] 4111 already [4] 311521 323 4118 backwards [4] 514 23161724
1904 [2] 614 1725 accomplish [1] 4913 alternative [1] 5820 bad [1] 1416
1934 [1] 49 according [2] 1817 5110 Altmann [1] 1318 bank [13] 719 81822 98 2716
1945 [17] 1013 142025 151213 accountability [2] 601423 amended [1] 1615 283455 3022 324 5434
15 1617 331 3522 36710 374 accumulated [1] 3514 American [3] 112 3721 5610 banks [9] 88910 271415 2911
388 3911 4216 437 5117 across [1] 1025 amicus [4] 122 27 2011 6222 3021 5725 5818
1946 [1] 3914 Act [15] 320 6319 1412 1724 20 amounts [1] 2411 bare [1] 1524
1952 [4] 3618 3921 4012 415 422 212 301518 347 5611 64 anachronistic [3] 425 4415 47 bark [2] 405 4315
1970 [6] 3919 4013 415101520 2324 655 24 barred [2] 2689
1990s [1] 1221 action [3] 5324 61117 announce [1] 682 based [5] 2518 354 386 5619
1994 [1] 115 activities [11] 8517 195 2717 another [13] 323 144 167 1923 5719
2 2910 3122 4017 662192122 2122 378 3823 501625 5420 basic [1] 3413
20 [2] 28 2622
20-some [1] 2624
2018 [1] 111
21 [1] 3421
27 [1] 3717
288 [4] 2213 331 4616 4825
288a [3] 1915 2018 4823
288a(b [4] 2024 2111 2215 49
13
288a(d [1] 2110
288b [1] 343
288d [1] 1916
288d(a [1] 2110
288f [2] 4725 525
activity [23] 791820 81015 94
69 2551718 27182325 2914
17 3010 31211 322 553 614
6620
actors [1] 2912
acts [1] 216
actual [2] 457 5214
actually [4] 4111 596 6121 68
11
ad [1] 4612
add [3] 1424 2510 6624
addition [2] 2515 504
address [4] 417 78 2423 403
adjust [2] 1212 1720
Administration [4] 66121314
5817 6125
answer [11] 71122 10191920
1817 2514 451414 558 6514
answered [1] 436
antiquated [1] 1816
anybody [3] 3825 4014 4312
anybodys [1] 4323
anyway [1] 5011
APPEARANCES [1] 117
appendix [1] 481
apples [1] 644
applied [1] 710
applies [5] 612 2216 341415 50
6
apply [7] 1010 161 1919 2215
basically [2] 1822 5011
basis [6] 4625 471 578 5912 60
2125
bear [1] 681
became [1] 3922
become [1] 6125
becomes [1] 1815
behalf [8] 11925 241114 38 33
8 6322
behind [1] 523
belies [1] 6717
believe [1] 542
beneficiaries [1] 677
best [2] 396 423
better [1] 2019
3 15 2521 507 5512 between [2] 513 5214
3 [1] 24 Administrations [1] 1825 appreciate [1] 5622 beyond [2] 3712 3822
30 [1] 2622 Administrations [1] 6611 appropriate [1] 5111 big [5] 2223 3022 564 6113 66
31 [2] 111 4113 adopt [1] 4318 archives [1] 213 25
33 [1] 211 adopting [1] 47 area [2] 171618 billions [1] 585
4 adoption [1] 1610
advance [1] 3612
arent [1] 5112
argued [1] 92
bit [2] 363 5510
blue [1] 481
45 [1] 4421 advantages [1] 6119 arguing [1] 6224 bodies [1] 539
5 5 [1] 1612
501 [1] 651
527 [1] 3420
adversely [1] 6220
advice [1] 812
advising [1] 3525
advocated [1] 309
affairs [1] 5719
argument [24] 114 225912 34
7 5111 625 1410 1914 2010
2213 2314 337 3521 3710 46
9 4822 5889 6321 6723
arguments [2] 416 5820
body [4] 32325 425 648
border [2] 681212
both [1] 2211
bounds [1] 1714
branch [11] 1024 1481318 151
6 affected [3] 572224 6221 arising [1] 5815 161924 398 4015 5012
63 [1] 214 affirm [1] 6317 Armed [1] 63 breach [1] 665
6a [1] 481 afford [2] 296 5219 articles [1] 5819 break [1] 493
8 afraid [2] 1625 523
Africa [1] 3023
Asia [1] 3023
Asian [1] 284
Bretten [2] 4325 441
BREYER [40] 43 513162022 6
80-some [1] 2623 African [1] 285 assets [1] 585 16 717 817 912 108 1117 12
A agencies [1] 3819
agree [3] 2018 253 5518
Assistant [1] 120
Association [1] 286
22 133 147 157 238111923
24259151821 2712 282914 am [2] 115 32
agreed [1] 294 assume [3] 1221 1711 222 301619 3147 4420 4515 467 ability [4] 12121315 6225
agreement [4] 282325 5819 67 assuming [1] 277 5524 56514 5715 able [7] 1023 2423 2513 264 32
12 assumption [2] 1223 5719 Breyers [4] 164 504 581 6210 20 458 607
agreements [5] 2821 5923 65 assurance [1] 318 brief [16] 618 115 364 377918 above-entitled [1] 113
171920 assure [3] 30619 4218 41121314 482 497 511820 abroad [1] 554
agricultural [1] 84 attenuated [1] 2523 6222 646 669 absent [1] 6213
AIDS [1] 5825 authority [7] 212425 2241114 briefs [1] 4522 absolute [33] 1922 201 22310
AL [1] 13 4619 475 bring [1] 6116 20 2610 282025 3215 331215
Alan [1] 1624 available [3] 11810 412 broaden [1] 559 21 34117 3524 361622 383
Alien [1] 622 BUDHA [1] 13
Heritage Reporting Corporation Sheet 1 1108 - BUDHA
70Official - Subject to Review
building [1] 2613
bunch [1] 6511
Bush [1] 6613
business [2] 1414 6818
businesses [1] 4422
bygone [2] 181819
C California [2] 118 6815
call [1] 412
came [5] 113 1125 1223 3779
camp [1] 6411
canon [5] 159 165 1911 5055
capability [1] 529
capital [1] 5915
captures [1] 2718
Carcieri [1] 67
care [1] 5516
Career [1] 63
carnage [1] 445
carry [1] 5122
Carter [1] 6612
Case [35] 34 4189 548 6236
88161718 9162025 14116
191 2117 2511 34182122 36
2 404 4724 561821 671121
6822122
case-by-case [2] 4612 471
cases [13] 413 61 92 158 1824
269 3415 4424 452020 6110
6837
categorical [2] 4625 683
categories [1] 494
category [2] 878
certain [2] 304 6521
Certainly [7] 1313 402 575 58
14 5918 608 6621
cetera [4] 48699 5321
change [4] 305 348 4310 6312
changes [1] 46
characterization [2] 367 4512
charter [6] 2816 311920 3910
1125
Chase [1] 618
CHIEF [15] 339 20713 3349 34
24 52216 5425 5616 576 607
6318 6820
choice [2] 174 5512
choose [1] 678
Circuit [4] 1814 5717 6214 63
17
circumstances [1] 3224
citations [1] 645
cite [2] 6218
cited [2] 525 5120
citizens [1] 3216
Civil [1] 655
claim [2] 311 612
Claims [3] 6423 6739
class [3] 5324 6025 6116
classic [1] 404
clear [17] 316 1119 1515 2424
2521 2716 4021 4121 4614 50
325 511414161719 646
clearly [2] 4714 547
cliff [2] 5514 634
Clinton [1] 6614
close [3] 425 712 628
closely [1] 910
collection [1] 218
collective [3] 5391219
Columbia [1] 6211
come [11] 1115 1521 322 421
19 4417 539 5810 6016 6122
656
comes [2] 548
comfort [1] 1121
coming [6] 97 3511 4324 5013
541010
commentators [1] 5118
commercial [26] 420 791720 8
1015 9469 2551618 27317
182325 291417 3010 312 32
2 401622 66220
Commission [1] 6813
commit [3] 3323 3816 5611
commitment [1] 3924
commitments [6] 3824 422122
4312 598
committed [4] 332125 3814 39
11
Committee [1] 5823
common [17] 621 74 1419 185
67 3314 3515 439 462 479 49
10 508 6421320 653
commonly [1] 6710
comparator [1] 715
compare [2] 1915 4823
competent [1] 622
complaint [2] 561819
completely [4] 424 4415 47824
compliance [2] 409 597
comply [1] 4124
components [1] 822
concede [1] 2112
concept [1] 4416
concern [4] 1325 414 4320 66
17
concerned [1] 622
concerns [2] 268 551
concludes [1] 5218
conclusion [1] 155
concrete [1] 5710
conditioned [1] 4810
conditions [3] 5321 5618
conduct [2] 261 3217
conference [2] 54811
conferred [2] 4122 5017
conferring [1] 499
Congress [36] 1023 1125 1224
25 1317 1415 174710111217
21 18210 1924 222 231 3225
3319 34616 351417 416 42
20 439 446 4620 471013 512
532 631112
Congresss [1] 1215
connected [1] 2516
connection [1] 2523
consciously [1] 4915
consequences [3] 5021 5722
6219
consideration [1] 374
consistent [3] 46 1011 5617
consistently [1] 6615
construction [3] 3414 351313
contemplated [1] 195
context [1] 3317
Contoe [1] 1624
contract [1] 2612
contractor [1] 2613
contracts [4] 674558
contributing [1] 541
control [4] 1523 162 6514 672
convention [8] 38181920 3913
19 40713 417
conversation [1] 6725
conversely [1] 6113
conviction [1] 65
cooperation [2] 681213
core [4] 2910 3122 66319
CORPORATION [2] 16 35
correct [3] 136 1924 4725
correctly [2] 510 1822
couldnt [2] 2225 2923
counsel [4] 208 335 6319 6821
count [1] 2916
countries [3] 3623 5311 541
country [4] 399 531516 568
counts [1] 2914
couple [4] 241419 3114 4214
coupled [1] 315
course [9] 621 3422 352 3823
4123 5325 5412 575 6115
COURT [31] 1114 310 6824 15
1718 1824 2014 2721 3213 33
310 34131925 351715 361
131416 371 452324 6025 62
1 6316 6512 669
Courts [6] 523 1518 2520 4519
20 657
courts [9] 1423 2722 309 3218
531522 5414 5810 6725
create [4] 1121 6058 612
creates [1] 4617
Criminal [1] 63
critical [2] 5024 5125
critically [1] 584
Cross [1] 5823
crystal-clear [1] 2824
cubed [1] 6720
curiae [3] 122 28 2012
D DC [7] 1102124 2616 5717 58
3 6317
damages [1] 6118
date [1] 1723
dates [1] 613
day [1] 1817
DC [1] 6214
deal [10] 188 2021 2223 2425
3022 4025 4821 618 67715
dealing [1] 683
deals [1] 2123
dealt [3] 2819 552 5621
debates [1] 4314
decades [2] 5717 6214
decide [6] 527 913141923
decides [2] 1516 544
decision [3] 2520 342021
decisions [4] 5313 5525 571 58
4
decouples [1] 4813
decoupling [1] 525
decrease [1] 136
default [2] 126 1720
defend [1] 578
defendant [1] 624
degree [1] 5814
deleterious [1] 6219
denying [1] 315
Department [15] 121 56 917 18
25 198 2823 3525 36101214
402 4546 4611 472
Departments [2] 54910
dependent [2] 5623 592
depends [1] 5821
deploy [1] 5313
deployed [1] 5320
describe [1] 3615
described [1] 1510
describes [2] 3912 465
describing [1] 2218
designated [1] 2623
desperate [1] 443
detail [2] 501414
detailed [1] 5525
determination [2] 1415 4612
determining [1] 567
development [13] 271415 2845
56 2911 302124 5434 5725
5924
dichotomy [1] 1916
dictates [1] 3517
difference [1] 5213
differences [1] 493
different [20] 7323 97 171321
181 2111 3818 4020 4416 46
17 47811 517 567 594 6523
25 6610
difficult [1] 6110
diplomatic [2] 2222 418
diplomats [4] 4138 491018
direction [2] 3956
directly [2] 3122 559
discarded [1] 204
discovery [1] 6117
discussed [1] 5118
discusses [1] 114
discussing [1] 1917
discussion [1] 2017
disincentive [2] 609 613
disincentives [2] 5815 6112
dispute [3] 322 42 82
disputes [2] 261212
disrupt [2] 6225 6421
Heritage Reporting Corporation Sheet 2 building - disrupt
71Official - Subject to Review
disruption [1] 637
District [1] 6210
doctrine [8] 18581819 64127
9
dog [2] 405 4315
doing [5] 194 267 3625 4017 52
17
dollars [1] 585
domestic [3] 2612 3217 5322
DONALD [3] 124 210 337
done [3] 5610 5920 6315
doubt [2] 1913 666
doubts [2] 2511 264
down [5] 1722 182 1925 493 50
22
dozens [1] 561
draft [1] 203
drafting [2] 316 2119
drastically [1] 594
draw [2] 5113
drawing [1] 5213
driving [1] 2615
E each [3] 372324 5311
earlier [2] 5716 6618
easily [1] 636
easy [1] 671
effect [3] 61 364 382
effectively [2] 5123 631
effects [1] 5723
either [2] 94 156
elaborate [1] 5124
element [1] 355
eliminate [2] 259 476
ELLIS [31] 120 26 2091013 21
21 2212 23921 2447141719
23 2621 27481013 2881115
294820 3018 313613 328
employees [3] 214 2221 486
enact [1] 304
enacted [11] 1616 3225 3319 38
89 412325 42817 4621 6423
enacting [1] 4225
enactment [6] 75 17910 4410
644 6516
encourage [1] 3024
end [4] 425 358 421618
ended [1] 383
enforcement [1] 83
engage [3] 197 2724 613
enjoy [1] 58
enjoyed [2] 313 1210
enough [2] 2523 2921
ensue [1] 5021
ensured [1] 4220
enter [4] 3011212 329
entered [1] 2820
entire [1] 2021
entirely [3] 4617 5821 592
entities [3] 4423 5724 5818
entitled [3] 319 1922 6521
entity [1] 602
environmental [3] 591921 6813
Equal [1] 6424
equivalence [3] 4219 5113
equivalent [1] 424
era [2] 181819
especially [5] 324 1021 18419
5316
ESQ [6] 11824 2361013
essential [1] 663
essentially [3] 2124 5510 633
established [2] 351821
ET [5] 13 48699 5321
Even [30] 63 8816 107 1110 12
1620 1424 1816 19345 256
10 265 2714141415 361218
427 4815 521722 596 6168
6416 677
event [1] 5518
everybody [2] 4121 6215
everybodys [1] 277
everything [4] 96 1013 2534
evidence [3] 393 6314 651
evolve [4] 1620 431921 5424
evolves [2] 542222
evolving [2] 3313 6413
Ex [1] 1514
exact [2] 625 1916
exactly [8] 124 1714 237 3224
4211 5415 5615 653
example [6] 719 81 198 2412
3725 543
examples [2] 1025 3720
exception [5] 79 256 271925
349
excuse [1] 5418
executive [16] 1024 1481318
151161924 3410 398 4014
416 462025 475 5012
exemptions [2] 4848
exist [1] 194
existence [2] 4715 4810
expect [2] 4025
explained [3] 2722 497 6618
exposed [1] 5713
extent [3] 394 5623 673
extraordinary [1] 609
F face [2] 461423
fact [12] 2512 3123 393 464 47
13 487 5622 6221 6415 6619
671016
facts [3] 4418 5623 6721
factual [1] 6021
failed [1] 391
failure [1] 5611
fair [3] 366 373 4511
fairly [1] 5525
fall [4] 1911 2614 5819 687
far [4] 201719 437 458
fat [1] 6114
fault [1] 604
favor [2] 76 3112
federal [8] 1210 1823 642222
2525 652 667
fees [1] 6713
few [1] 723
fiduciary [1] 5612
fight [2] 582425
fighting [1] 5812
filed [3] 4114 473 669
Finally [1] 6719
FINANCE [2] 16 35
financial [2] 814 329
find [7] 2923 401415 4316 458
481 6019
fine [1] 632
fingerprint [1] 5012
first [10] 7123 102 1412 1610
1724 2324 351 5711 6514
FISHER [23] 118 2313 3679 5
12151721 10418 1381013 16
31321 173 4425 63202123
fisheries [1] 81
fit [2] 106 1520
five [3] 818 389 523
fixed [8] 212 2219 331216 495
6 533 6420
floating [1] 534
floodgate [1] 279
floodgates [3] 267 3116 6617
flux [6] 189 3523 361520 6415
17
focus [1] 3213
following [1] 5913
foolish [1] 1816
foreign [39] 3131819 7141518
812 97 1216 19720 219 234
9 2512 3219 3324 391622 42
2910 4320 489111425 4919
51319 52681019 6115 624
6720
foreign-cubed [1] 621
forever [1] 44
forgive [1] 1623
form [5] 1172123 1434
former [2] 6222 6411
forth [1] 4421
forward [8] 131424 142 2513
265 32314 606
foundation [1] 5116
founding [2] 620 548
Four [3] 632024 6610
Francisco [2] 5115 548
fraud [3] 342323 356
friend [6] 2016 2120 254 6516
6625 685
friends [7] 344 3920 4414 4510
468 4723 5022
front [2] 426 444
frozen [1] 2117
FSIA [10] 1411 15423 2718 297
5515 617 66121616
fulfill [3] 3320 422125
full [5] 354 4816 4918 522025
fully [1] 1023
function [1] 6225
functional [5] 519 538 541719
23
functions [3] 5123 6523 663
fund [2] 582425
funded [1] 555
funds [2] 196 5323
further [1] 332
future [1] 102
G gave [5] 517 124 349 382 4514
General [7] 120 322 113 1716
1811 6419 676
Generals [1] 686
generally [1] 5416
George [1] 6613
gets [1] 4820
getting [3] 923 148 5221
GINSBURG [5] 326 3520 4513
17 4821
Ginsburgs [1] 436
give [24] 56 61722 824 1018 11
21 1221115 131 15171920
3016 31814 3719 448 45415
4916 518 5417 688
given [10] 41 15122 175 1914
2211 3115 349 361
gives [4] 31117 812 1116
giving [1] 6410
Glad [1] 2423
global [1] 5824
gloss [1] 4413
goal [1] 1411
Gorsuch [6] 410 163142225
1813
got [9] 510 2317 289 467 4918
5513 5724 5925 6013
gotten [1] 3715
government [7] 127 318 3811
48911 6224 6819
governments [4] 92 4522 6425
668
governmental [1] 123
governments [11] 31319 812 9
1 12110 219 23410 2720 32
20
governs [1] 3511
grab [1] 6024
granddaddy [1] 4010
grant [8] 2023 2225 2313 246
4621 4816 5121 5822
granted [4] 4624 4878 516
granting [1] 4117
grants [2] 824 302
gratified [1] 556
gravamen [7] 25222425 5619
5722 6722
great [3] 188 2425 4025
gross [1] 4625
group [2] 710 5817
groups [2] 572224
guarantee [1] 5522
guess [6] 922 299 4213 4423
5517 639
H
Heritage Reporting Corporation Sheet 3 disruption - guess
72Official - Subject to Review
half [1] 2810 importing [1] 1419 11 595 56101314 591113 60122 61
hand [3] 4823 6479 impose [1] 5321 itself [7] 716 811 116 2416 372 1 6718
happen [4] 59910 631011 incentives [1] 142 4218 6325 lawsuits [5] 319 566 621 6625
hasten [1] 1424 include [1] 561 J 6711
headquarter [1] 1022 Including [1] 2711 lay [1] 1925
headquartered [4] 1022 2619 inconceivable [2] 43812 JAM [2] 13 34 lead [4] 153410 319
25 6213 incorporate [1] 3518 JEFFREY [5] 118 2313 37 63 least [4] 186 2410 497 5818
headquarters [2] 2615 292 incorporated [6] 325 72 169 33 21 leave [1] 420
Health [1] 5823 14 3423 6616 JONATHAN [3] 120 26 2010 leaves [1] 5512
hear [2] 33 557 incorporates [2] 5067 JR [2] 124 210 led [1] 449
heard [2] 4425 4822 incorporating [2] 509 648 judge [1] 1319 left [1] 2016
heart [2] 501516 incorporation [1] 4912 judgment [2] 4711 6713 legal [2] 5918 6713
heightened [1] 144 increase [1] 226 judgments [3] 531925 545 legislation [3] 813 175 6311
held [2] 309 6615 indeed [4] 427 187 203 Judiciary [2] 619 1724 legislative [1] 1119
helps [1] 5911 indemnifies [1] 6712 July [1] 388 lend [2] 423 2412
hewing [1] 3621 indemnify [1] 6710 jump [2] 5514 634 lending [8] 889101623 2719
historical [4] 393 441318 4512 India [4] 2623 575 6122 juridical [1] 5113 2910 5525
history [4] 316 1119 2119 2818 Indian [2] 47 68 jurisdiction [1] 5413 lends [1] 302
hoc [1] 4612 indicate [1] 3123 jurisprudence [2] 523 657 lens [1] 712
Hoffman [1] 1514 indicated [1] 5715 Justice [96] 121 339 4310 513 less [1] 229
hoist [1] 6011 indicators [1] 4720 162022 616 717 817 912 108 Letter [6] 361919 3921 403 437
hold [1] 3723 individualized [1] 1417 1117 121822 133591112 14 465
Honor [4] 2420 365 4024 494 individuals [3] 419 491017 67 156 1634142225 1812 20 level [3] 3719 387 5225
Honors [1] 558 infer [2] 351616 713 2121 238111923 24259 liability [2] 67116
hope [6] 5521 5889 6177 6618 infrastructure [1] 6817 151821 2617 272691111 28 liberal [1] 6117
hopefully [2] 606 634 initial [1] 4022 2914 2938 301619 3147 32 lien [2] 5920 6010
hornbook [1] 1010 injured [1] 6121 6 33410 34524 3520 3612 40 light [1] 3317
hornbooks [1] 43 injuries [1] 262 1619 42715 4356 4420 4513 limited [1] 1224
host [3] 2025 217 5316 inquiry [1] 358 1517 467 4721 4821 504 522 list [1] 3020
housed [1] 6212 insertion [1] 69 16 5425 5524 5651416 576 little [2] 102 5510
however [1] 572 instance [1] 2220 15 581 607 629 6318 6424 66 live [2] 5925 603
I instead [2] 6120 6520
institutions [2] 81823
2 6820
K loan [3] 820 2924 602
loaning [1] 5914 idea [4] 14816 1618 2618
identified [1] 581
IFC [10] 710 8111919 256 283
323 591320 6620
IFCs [2] 3120 6621
II [1] 446
illustrate [1] 5711
IMF [6] 283 302 37202525 388
immediately [2] 407 6112
immune [4] 215 252 6718 6817
immunities [19] 2025 2216 234
instructions [1] 5011
intended [2] 347 513
Inter-American [1] 284
interest [1] 1114
interests [1] 6220
interfere [1] 3110
internal [3] 60131922
INTERNATIONAL [37] 16 3511
17 422 72224 824 1025 1421
1921 2221 232 251 286 3222
3323 4010 421 4621 477 485
KAGAN [6] 2121 2938 42715
435
keeps [1] 4824
kept [1] 6516
key [2] 542020
kind [5] 825 453 5124 606 614
kinds [5] 716 2618 3820 5921
6010
knowing [1] 101
knows [2] 198 5810
loans [5] 2912131822 5913
lobby [1] 1023
locate [1] 1014
lock [1] 175
long [5] 45 1011 1322 619 63
14
look [32] 61315 724 911 108 13
18 168121416 1713 2021 21
19 2311 2817 311920 351 37
10 4111 4412 45119 4623 50
10 547 5511 6017 6221 6311 3815172121 391213 4118 131924 5018 51481221 526 L 642 667 4622 4848 49916 5214 5933 23 5822 623 6622 68410 labor [2] 591922 looked [4] 44 158 3020 4524
immunity [119] 312171820 419 Interpol [1] 83 landing [2] 5515 635 looking [2] 3523 212425 559 9152125 1024 interpret [1] 1017 language [8] 1017 1518 202 21 looks [3] 3618 3812 4313 11672123 1229911161925 interpretation [2] 3415 659 13 343 359 421215 lot [10] 2017 221 2814 319 446 13120 145141721 15219 16 interpreted [1] 343 last [1] 49 5516 5625 5812 6110 636 1 191922 20124 213925 223 interpreting [2] 619 359 late [1] 4120 lots [2] 420 6114 991922 2337131415 2436 intervention [1] 5322 later [3] 4916 3810 lower [3] 2722 309 6725 101125 259 26510 28152025
297 3025 3121 3251521 33 investigate [1] 6018
inviolable [1] 213
latter [1] 1717
Laughter [4] 172 2318 241 55 M
121522 3411117 3523 36110 involved [2] 149 661 20 made [10] 53 1223 1415 18910
15172224 37121319 3847 39 IOIA [21] 31115 11816 2023 22 law [46] 32425 61121 714 82 3924 469 4710 561 6723
215161722 411822 4223 434 17 2624 331120 3718 3869 1056 131516 1419 151212 mail [1] 3422
920 448 4525 463 47618 48 22 391 411921 4314 4410 46 15 1620 17151618 18567 21 main [1] 582
17 5017 516921 522025 53 18 498 593 14 3314 3515 3619 383 439 malaria [1] 591
14 5513 5720 582121 6214 65 ISMAIL [1] 13 20 4524 462 479 4911 508 53 managing [1] 81
182224 isnt [6] 1618 2513 31910 3711 22 571417 621014 631213 64 manner [1] 6715
important [5] 1324 502 5317 57 4419 281320 653 many [9] 413181818 725 1025
16 6416 isolation [1] 2020 laws [1] 306 2618 322 581
importantly [1] 257 issue [6] 1219 211116 5621 58 lawsuit [14] 1223 15225 4723 margin [1] 6111
Heritage Reporting Corporation Sheet 4 half - margin
73Official - Subject to Review
market [2] 820 2918
massive [2] 5324 545
match [1] 4418
materiality [2] 3423 355
materials [4] 372 426 4413 45
12
matter [7] 113 1716 466 5016
16 515 6417
matters [1] 5814
mean [14] 4111213 64 914 248
251 371 4211 451819 5212
5418 5617
meaning [7] 179 3315 351518
22 64310
means [4] 524 3517 421620
meant [3] 64 223 2910
measure [1] 126
measures [1] 6019
mechanism [2] 4617 6014
member [1] 5325
members [3] 486 5224 539
mentioned [2] 1813 417
mess [1] 453
metaphor [1] 634
metes [1] 1714
method [1] 6715
might [2] 718 6620
mind [2] 523 681
minimum [1] 1524
minute [2] 3722 5124
minutes [2] 523 6320
mission [1] 444
mistake [1] 53
Mister [1] 293
mixed [1] 923
mixing [1] 644
modern [1] 1817
moment [5] 4115 105 3921 65
16
monetary [1] 411
money [14] 41223 820 2413 30
7 541 569 59141423 602 612
15 627
months [1] 389
morning [2] 2017 3116
most [6] 232 257 3316 4722 53
16 551
move [3] 3611 515 535
moving [1] 3623
much [5] 141 2517 3112 395 40
21
multi-country [1] 5211
multilateral [1] 5725
multinational [1] 2911
must [4] 251718 351616
N Nader [2] 341921
narrow [1] 4915
narrower [1] 499
nations [4] 418 397 4011 5412
natural [1] 354
nature [2] 123 2924
necessary [4] 1720 3510 3912
6523
Neder [1] 641
need [7] 1116 306 3124 3268
3712 4318
needed [2] 291 3823
negligence [2] 56711
negotiate [4] 1214 143 2825 67
5
negotiated [3] 115 1220 3914
never [1] 6723
New [1] 2616
next [2] 34 6617
nexus [2] 2517 553
nobody [2] 59 925
Nobodys [1] 6217
non-commercial [1] 85
none [3] 4411 651925
normal [1] 3414
nothing [3] 101 2411 404
notwithstanding [1] 487
Number [6] 242424 2713 3115
4424 6421
numbers [1] 2621
O OAS [4] 113 1221 282224
OBB [3] 2520 5618 587
objective [1] 4914
obligations [5] 332022 409 41
24 6515
obvious [1] 4624
obviously [2] 4710 6721
occurred [2] 2622
occurs [1] 2519
October [1] 111
Office [1] 686
officers [2] 214 2220
official [1] 215
officials [2] 192021
often [1] 5917
Okay [5] 512 2323 24518 467
old [1] 187
once [2] 4315 4620
one [47] 41823 5118 6217 819
1317 14369 1622 173 1868
1113 191218 211116 2424 25
10 273 3013 3118 3618 3812
4014 4313 4722 4823 4925 50
67 54613 5512 6015 64717
65615 6624 67319 688
ones [1] 329
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15
ordered [1] 5718
Ordinarily [1] 296
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Organization [16] 1124 1421 19
321 372021 4020 4118 4622
477 4819 519 5223 5824 623
organizations [1] 2614
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214 2221 232 2518 261923
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17 5018 5141222 52611 53
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14 68410
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23 95 13125 141019 1715 18
21 1924 2113 224 23312 24
16 2912 3212 3446 3622 39
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22 5221 6315 64918 657810
664 688
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6310
ourselves [1] 578
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9 581015 5977 616 656 676
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21 542324
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P pm [1] 6822
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PAGE [5] 22 3420 3717 4113
481
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Parte [1] 1514
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6613
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Peru [1] 1514
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President [9] 55 1225 136 225
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Presidents [3] 1212 2214 475
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Q rejected [1] 624
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10 433 451317 49182225 54
16 653 solely [1] 354
Solicitor [4] 120 113 676 685 quasi-sovereign [1] 3018 Relations [1] 5120 San [2] 5115 548 sometimes [6] 1113 166 1816 question [13] 71112 107 1122 relief [2] 41112 satisfy [1] 6722 194 4545 1425 164 1822 2421 2514 34 remain [1] 1311 save [1] 205 somewhat [1] 6415 13 4517 4721 559 remains [1] 137 saying [11] 98 292024 3811 40 somewhere [1] 2622
questions [6] 78 109 1317 18 remedial [1] 6019 15 4317 5217 5511 5610 5923 sorry [2] 1921 2319 17 333 436 remedy [2] 62223 6516 sort [10] 1323 26811 27222325
quintessential [1] 2611 Remember [7] 1112 128 1411 says [17] 621 95 176 191820 2925 30811 6716 quite [9] 45 111519 299 4120 4324 521 538 5716 357 3717 4116 421224 4618 sorts [2] 2717 6125 4714 4915 503 5114 remotely [1] 4317 48319 492125 541112 SOTOMAYOR [16] 1218 1359
quo [2] 4513 removing [1] 3025 scholars [1] 4114 1112 146 2617 2726911 345 quotes [1] 4115 renovated [1] 2613 scientific [1] 83 401619 4721 662
R repeat [1] 633 scope [3] 3814 4916 5214 south [1] 3211
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511517 54710 6022
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resources [3] 53101320
respect [10] 215 372424 3813
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12 2325 3510 4920
Secondly [1] 679
Secretaries [1] 6222
section [17] 141212 1612 1915
16 201824 21101011 221315
2410 331 343 4616 4725
sector [2] 81421
see [10] 9142223 2118 3221 39
6 451 546 5911 6124
seeking [1] 3217
seem [1] 5624
seems [2] 102 2416
Sovereign [11] 320 9152125 19
6 2719 3041525 4320 5219
sovereigns [8] 197 302 4825
511113 527924
special [6] 88 1024 115 1219
371415
specialized [1] 3819
specific [6] 1619 176 1811 56
20 571 6410
specifically [1] 5411
spending [1] 91
spent [1] 569
stages [1] 4022
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standard [20] 33111625 3411
24 361113162123 4318 4612
471617 4912 5344 5422 62
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standards [7] 4956 59222225
60310
Stanford [1] 118
start [5] 521 15711 3412 6324
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State [23] 55 7141518 9716 18
25 198 2114 2823 3525 3610
14 3922 402 4422 4545 4611
471 54913 6223
statement [1] 378
STATES [39] 111522 27 418
11312 2011 25219 2620 271
3111 3324 3652021 378917
21 3816 391618 42210 4815
16 4919 514 5218 5318 5547
11 562 6220 68811
States [1] 6225
status [5] 3523 4513 5110 54
18
statute [32] 47 525 74 101212
129 167791111 35616 3715
382823 46152124 4819 49
21 5067 533 5512 62218 63
25 642425 654
statutes [2] 3716 509
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3317 3415 359 4720 501 58
22 6422 6529
Steamboat [2] 61724
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stilted [1] 1815
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structure [4] 315 2022 2122 47
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stuck [1] 910
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suddenly [1] 3025
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suit [18] 312 41 524 6412 72
1314 15311 215 233 251322
25 312124 3223 606
suits [6] 312224 321131619
support [1] 4114
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Sutherland [2] 613 1725
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Switzerland [1] 98
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T talked [2] 6625 686
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Tate [6] 361819 3921 403 437
464
tax [1] 3821
tells [1] 531
tense [1] 324
Tenth [1] 1814
term [3] 410 64310
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Texas [1] 6814
text [16] 31421 51922 191315
15 2018 3313 352235 4720
4812 6325
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2111 2622 3118 359 363 403
12 446 4715 4923 5522 5718
581417 601719 6479 671
therefore [3] 342 3624 6316
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4019
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67911 686
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Trade [1] 3720
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Treasury [1] 6223
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491822 6814
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597 6515 665
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Truman [1] 1825
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17 4915 532
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17321 181 2025 2113 49323
535 6413 671
type [2] 15325
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U UN [16] 1013 1220 381819 39
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16 549 664
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22514 26524 322 3515 382
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13 617 6221418
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Understood [4] 2417 299 3713
4121
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UNITED [33] 111522 27 1112
2011 2519 262025 3111 365
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4011 4816 5218 5318 5412 55
4711 562 622025 68711
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20 5720 621113 6518
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2124
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War [1] 446
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22 361 3825 6412
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5224 551515 578 635 6618
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Woods [2] 4325 441
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1589 1789 4014
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6520
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2224 324 3720 44555 5823
5915
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WTO [1] 3812
Yyear [1] 6423
York [1] 2616
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of spending that governments do And the
governments argued in past cases and we think
theyre probably right that that is not
commercial activity either
So when the other side says well
everything is commercial activity its no
different than the foreign state coming to this
and saying well if the Bank of Switzerland
does commercial activity then were -- were
stuck Well no no no its just how closely
you look at the problem
JUSTICE BREYER What about -- the
third was if we -- if we decide with you -- if
we decide against you see that would mean
there is sovereign immunity But there
shouldnt be in a particular case the State
Department can waive it and they have to be -shy
response
But if we decide for you and then
theres a case where there really shouldnt be
sovereign immunity or rather -- rather there
really should be I guess -- see thats what
Im getting mixed up You see if we decide
against you and they really should have
sovereign immunity in this case nobody can do
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anything So knowing nothing about the
future it seems a little safer the first
than the second
MR FISHER Well Im going to turn
back in a moment to the law and why that just
cant fit within the law but as to just the
policy question youre asking me even there -shy
JUSTICE BREYER Well you can look -shy
the reason I ask policy questions is because
the hornbook said yes apply it as of now as
long as its consistent with the purpose of the
statute And the purpose of the statute going
back to 1945 and the UN and everything was
to get these organizations to locate here
So its not just policy for policy
Its policy for purpose And purpose is tied
into how you interpret the language
MR FISHER So let me give you the
practical answer and then the purpose answer
On the practical answer
organizations especially if they want a
headquarter here or are headquartered here are
fully able to -- to lobby Congress or the
executive branch for special immunity And
there are many examples across international
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organizations
Take the Organization of American
States OAS And the solicitor general
discusses this in -- the organization in its
brief In 1994 it negotiated a special
immunity provision for itself to get more than
the ordinary restrictive form of immunity that
was available under the IOIA
So there are -- there are pathways
available and they have been used even more
so
Remember the United States as you
say has a -- has a sometimes principal
interest in these organizations So it is
quite responsive to them when they come and
say We need more than the IOIA gives us
But Justice Breyer let me turn back
to the -- the original purpose which was the
legislative history is quite clear on what the
purpose was As you say this was partly to
create a form of immunity to give some comfort
to these organizations But the question is
what form of immunity did they ask for and what
did they get
What they did is they came to Congress
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and said treat us like foreign governments
Give us immunity as Congress put it in a
Senate report of a governmental nature And
so what did Congress do It gave them exactly
what they asked for It said were going to
treat you as a default measure like a foreign
government
And remember the words of the
statute are same immunity Same immunity
as is enjoyed by federal governments So were
going to give you the same immunity subject to
the Presidents ability to just -- adjust it
and subject to your own ability and your own
treaty to negotiate for more and subject
thirdly to Congresss ability to give you some
immunity that you dont have even by way of
your own treaty
JUSTICE SOTOMAYOR Can we go to that
issue raised in part The special immunity I
know was even negotiated by the UN I think
in the 1990s and OAS and others but assume
that were in your regiment and Justice Breyer
made the assumption that if a lawsuit came to
us now under your theory and it was limited
immunity that the President or Congress could
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give immunity to the other side
I dont think so
JUSTICE BREYER No its the
opposite
JUSTICE SOTOMAYOR The opposite The
President cant decrease it correct So that
problem still remains with your -shy
MR FISHER Well -shy
JUSTICE SOTOMAYOR Yeah
MR FISHER -- I think it -- it may
or may not remain Justice Sotomayor
JUSTICE SOTOMAYOR Thats my -shy
MR FISHER Certainly we could -- we
would say we can go forward on this suit
because -- because there is no such law
If that law were passed youd have
two questions One is did Congress make it
retroactive And you look to Altmann to think
about how to judge the retroactivity of
immunity provisions And then if it were
retroactive whether that were permissible
But you know were a long way from
-- from that sort of a situation I think the
important thing going forward and this is I
think what the concern is on the other side
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is not so much about this case but about
incentives and policies going forward they
have every opportunity to negotiate in one form
or another or to procure a heightened form of
immunity
And Justice Sotomayor let me say one
more thing to you and Justice Breyer about you
know the idea of the executive branch getting
involved This is one of the problems I
submit with the other sides argument
Remember part of the goal of the FSIA
in the first section of the Act in Section 1602
is to get -- is to get the executive branch out
of the immunity business
Congress made the determination that
it was a bad idea to have every case turning on
individualized suggestions of immunity and
executive branch political policy And so the
other side by importing the common law of
1945 would reintroduce that problem into
international organization immunity in a way
that we dont think would be very good
politically or very workable in the courts
And Id hasten to add that even under
the rule of 1945 if the question were what
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does the executive branch think about any given
lawsuit or any given immunity for any given
type of suit that would just lead you right
back to the FSIA and it would lead you back to
the same conclusion that we submit to you here
So either pathway whether Justice
Breyer you start with the way youve always
looked at cases with the word is and the
word same and the reference canon that Ive
described and say all of those things lead you
to a time of suit rule or if you start with
the law of 1945 and say what was the law in
1945
Well Hoffman and -- in Ex Parte Peru
were clear that the law of 1945 was the
executive branch decides and its not for the
Court -- this is -- Im going to give you the
Courts own language -- its not for the Court
to give immunity where the executive branch has
not seen fit to give it
And if that were the test youd come
right back to where you -- where I started
here which is that the FSIA would control or
at the bare minimum the executive branch
position in this lawsuit on the type of
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immunity that ought to apply in this situation
would control So -shy
JUSTICE GORSUCH Mr Fisher if I can
pick up on Justice Breyers question The
reference canon I take all -- all of your
points but sometimes lets say we have a
statute that -- that refers to another statute
Usually we would look at the second
statute thats being incorporated as of the
time of -- of the adoption of the first
statute Right So if -- if this statute were
to say go look at Section 5 -shy
MR FISHER Right
JUSTICE GORSUCH -- we wouldnt look
at it the way its been subsequently amended
Wed look at it as it was originally enacted in
1945
Why isnt that -- that idea pertinent
here you know when we refer to a specific
law we dont take it to evolve over time
MR FISHER So for two reasons
Justice Gorsuch and one of them if youll
forgive me is going to be something you said
in the Alan Contoe opinion
JUSTICE GORSUCH I was afraid of
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that
(Laughter)
MR FISHER But for two reasons One
is Congress has a choice to make when it writes
legislation It can lock in a given rule by
setting a specific statutory provision and says
thats the rule we want just like if Congress
uses a particular word at the time of the
enactment the meaning of that word at the time
of enactment would be what Congress -- wed
assume Congress wanted
Or Congress could do something
different which is to say look were not
sure exactly of the metes and bounds of the
law Were just going to tie it to this other
area of law as a general matter And thats
what Congress did here It did the latter
So it took an area of law as a point
of reference and said Just use that as the
default rule and then adjust as necessary And
those are just two different pathways Congress
can go down
And they date as I said all the way
back to the First Judiciary Act there in the
Sutherland treatise all the way back to 1904
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and so theres just two different pathways
Congress can go down
And it makes perfect sense I think
in a situation like this especially where you
have a common law doctrine being referenced at
least a common law at the time and one that
was indeed not just any old common law
doctrine but one that was in a great deal of
flux at the time So it made every reason -shy
it made every good reason for Congress to have
a general reference not a specific one
And then the second reason Justice
Gorsuch is the one you mentioned sitting on
the Tenth Circuit which is that as time goes
by it becomes all the more stilted or
antiquated or even foolish sometimes to try to
answer questions in the modern day according to
what some bygone era doctrine would have
required and especially a bygone era doctrine
like this
If I understand the other sides
position correctly basically the question
theyre having -- they would want every federal
court to ask in these cases is what would the
Truman Administrations State Department have
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wanted to do in this case
And when you have things like this
which didnt even -- an organization that
didnt even exist at the time sometimes doing
activities that werent even contemplated at
the time things like sovereign wealth funds
which foreign sovereigns now engage in for
example who knows what the State Department
would have thought then
I think theres every reason then to
fall back on the reference canon And if I can
say one more thing before reserving my time if
you have any doubt about just the plain text
argument Ive given you I would urge you to
compare the text in Section 288a to the text -shy
Section 288d which has the exact dichotomy
that -- that Ive been discussing today
One subsection subsection (a) says
that the same immunity rules apply and
subsection (b) says that foreign officials -shy
Im sorry international organization officials
are entitled to absolute immunity
So this is yet another reason why if
the other side were correct and if Congress had
wanted to lay down the rule they did why would
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they not have just used the absolute immunity
language in subsection (b) of subsection (d)
and that indeed was the original draft of
this act that was discarded
So I could go on but Id rather save
the rest of my time for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Ellis
ORAL ARGUMENT OF JONATHAN ELLIS FOR
THE UNITED STATES AS AMICUS
CURIAE SUPPORTING THE PETITIONERS
MR ELLIS Mr Chief Justice and may
it please the Court
If I could Id just like to pick up
right where my friend left off Theres been a
lot of discussion so far this morning on the
text of Section 288a We agree that the
Petitioners have the far better reading of that
phrase in isolation but I think it really
settles the deal when you look at the entire
structure of the Act
The -- the IOIA doesnt just grant
immunity in Section 288a(b) but it provides a
whole host of immunities and it does it in two
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different ways In several different
provisions the Act sets a fixed rule of
immunity So archives are inviolable and
officers and employees of the organizations are
immune from suit with respect to their official
acts
And then there are a -- a host a
collection of three provisions that set the
immunity by reference to foreign governments
Theyre Section 288a(d) Section 288d(a) and
theres Section 288a(b) the one at issue here
Respondents concede that the
referential language in those other two
provisions do refer to the state of the law as
it is today
Its only the one thats at issue in
this case that they say was frozen We dont
see how that can be and thats particularly
true when you look at the drafting history that
my friend referred to
JUSTICE KAGAN Mr Ellis before you
get to that another part of the structure is
this provision that deals with presidential
authority and thats essentially a roll-back
authority of immunity
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Doesnt that make a lot more sense
that provision if you assume that Congress
meant for there to be absolute immunity In
other words the presidential authority is a
one-way ratchet The President can only under
this provision roll it back It cant increase
it
So to me if I -- if -- if -- if -shy
if the immunity -- if the immunity is less than
absolute you would think that they would have
given the presidential authority both ways
MR ELLIS Sure The reason that
argument doesnt work is because Section 288
the Presidents authority under that provision
doesnt just apply to Section 288a(b) It
applies to all of the immunities provided by
the IOIA
And as I was just describing some of
those are fixed immunity rules that are not
absolute And so for instance the officers
and employees of international organizations do
not receive diplomatic immunity That was a
big deal at the time
And -- and yet the President cant -shy
couldnt grant that up I think what that
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provision shows is that Congress wanted to
provide international organizations at most the
immunity from suit and other privileges of
immunities that foreign governments received
and not more so
And yet Respondents are here today
asking you for exactly that more immunity -shy
JUSTICE BREYER But on that -shy
MR ELLIS -- than foreign
governments receive
JUSTICE BREYER But look whatever
other things it refers to the provision allows
the President to waive immunity not to grant
immunity And your argument is they have
immunity Right
Do I have -- I get this backwards
This is the third time Ive got it backwards
(Laughter)
JUSTICE BREYER Sorry The provision
allows the person to be sued Is that right
MR ELLIS It does allow them to be
sued
JUSTICE BREYER Okay So I was
right I had it backwards the first time but
not the second not the third all right
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(Laughter)
JUSTICE BREYER It allows the
President to waive the immunity
MR ELLIS Thats right
JUSTICE BREYER Okay It doesnt
allow him to grant the immunity
MR ELLIS It does in a sense I
mean -shy
JUSTICE BREYER But the power to
waive the immunity at least in this section
amounts to nothing if they have no immunity
because for example all they do is lend
money
MR ELLIS So -- so a couple -shy
JUSTICE BREYER Thats -- thats -shy
and the other way it seems to work itself out
MR ELLIS Understood
JUSTICE BREYER Okay
MR ELLIS A couple responses to
that Your Honor
JUSTICE BREYER Thats the question
I think
MR ELLIS Glad to be able to address
that Number -- number one just to be clear
we -- they do have a great deal of immunity I
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mean foreign -- international organizations
and foreign states are presumptively immune
And I would agree with almost everything
that -- maybe everything that -- that my friend
said about why the commercial activity
exception even with regard to IFC and -- and
most -- more importantly with regard to the
vast sweep of these organizations is not going
to eliminate immunity
I would add one more is that even a
case like this we have serious doubts I
think -- we think in fact from what we know
this suit isnt going to be able to go forward
regardless of the answer to the question
presented because in addition to having -- to
being connected in some way to commercial
activity there must be a much stronger nexus
It must be based on commercial activity that
occurs in the United States
We think the Courts decision in OBB
makes clear that the way you apply that is to
ask Whats the gravamen of this suit Its
not enough to have some attenuated connection
but whats the gravamen
And the gravamen of this suit as we
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understand it is -- is tortious conduct that
occurred in India injuries that occurred in
India And we dont think -- we have serious
doubts that this is going to be able to go
forward even under restrictive immunity
And so we do not think that what were
doing is opening the floodgates here rather
that the sort of concerns that would be barred
-- cases that would be barred by Respondents
absolute rule of immunity and would be allowed
by ours are -- are sort of quintessential
domestic disputes contract disputes with your
contractor who renovated the building the slip
and fall at the -- at the organizations
headquarters or the driving accident on the
streets of New York and DC
JUSTICE SOTOMAYOR Do you have -- do
you have any idea about how many of these kinds
of organizations are headquartered in the
United States
MR ELLIS I think the numbers are in
the 20 to 30 range Theres about -- somewhere
80-some organizations that have been designated
for protection under IOIA and 20-some that have
-- I think are headquartered in the United
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States
JUSTICE SOTOMAYOR That are
commercial like this one
MR ELLIS No no no No I did
not -- no
JUSTICE SOTOMAYOR Were -shy
everybodys assuming -shy
MR ELLIS Right
JUSTICE SOTOMAYOR -- a floodgate
MR ELLIS Sure no There are -shy
JUSTICE SOTOMAYOR Including Justice
Breyer
MR ELLIS -- there are a number of
development banks but even then even -- even
the development banks even if you talk about
the World Bank its not clear that those
commercial activities are the sorts that the -shy
the FSIA captures with the commercial activity
exception Lending there is to sovereign
governments
And -- and as the Court has been -- as
lower courts have explained that sort of
commercial activity is not the sort that a
private party could engage in So its not the
sort that the commercial activity exception
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picks up
JUSTICE BREYER Well I -- I have the
IFC the IMF the World Bank the
Inter-American Development Bank the Asian
Development Bank the African Development Bank
the International Development Association So
I -shy
MR ELLIS Sure I -shy
JUSTICE BREYER -- Ive got -- thats
only half of them
MR ELLIS Thats -- that -- Im not
sure what percentage that is I want to point
out that some of those organizations -shy
JUSTICE BREYER There are a lot
MR ELLIS -- have their own immunity
provision in the -- in their charter And so
thats what we think -- if you look at the
history thats what -- thats how it has been
dealt with for organizations that require
absolute immunity Weve entered into
agreements
I would point again to the OAS
agreement where the State Department is just
crystal-clear that what OAS did in that
agreement was to negotiate absolute immunity
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because they thought thats what they needed in
order to put their headquarters here
JUSTICE KAGAN But Mister -shy
MR ELLIS We agreed to that and we
said But hey this is not our usual
practice Ordinarily we -- we afford only
restrictive immunity We point to the FSIA
JUSTICE KAGAN Mr Ellis I -- I
guess Im not sure I -- I quite understood what
you meant As to the core lending activities
of these multinational development banks in
other words making loans where private actors
would not make loans do you have a view as to
whether that counts as a commercial activity or
not
Did you say that that would not count
as a commercial activity because theyre making
loans that the -- that the private market would
not make
MR ELLIS No Im -- Im not saying
that its -- that its enough that theyre
making loans that a -- that a private -- they
couldnt find a private party to provide Im
saying if the nature of the loan is such that
its -- its not the sort of transaction that a
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private party would enter into so think about
the IMF that grants -- that lends to sovereigns
and they do so on the requirement that the
sovereign enact certain restrictions -shy
regulations and change their -- their -- their
laws in order to assure that they dont need
the money again
That is the sort of thing thats been
held by lower courts and weve advocated is
not a commercial activity Thats just not the
sort of transaction that a private party can
enter -- enter into Its not just that a
private party didnt Its that -- that no one
-- thats not something that you can do
Thats a sovereign act
JUSTICE BREYER But can you give
me -shy
MR ELLIS Or a quasi-sovereign act
JUSTICE BREYER -- anything to assure
me because when I looked through this list I
thought that there were development banks like
the World Bank which is a pretty big deal as
well as in Asia in Africa were trying to
encourage development all over the world and
suddenly by removing the sovereign immunity
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because the plaintiff will claim this is a
commercial activity
MR ELLIS So -- so -shy
JUSTICE BREYER And youre not
denying it
MR ELLIS And so -shy
JUSTICE BREYER So what is the
assurance that the government can give us that
this isnt going to lead to a lot of lawsuits
and this isnt going to interfere with perhaps
activity that the United States traditionally
has been very much in favor of
MR ELLIS Absolutely Let me -- let
me give you a couple things I think weve
given you a number of -- of points already this
morning as to why we dont think the floodgates
are going to open
If -- if theres one more Ill say
just look at the -- the charter of these
organizations Look at the IFCs charter
They already waive suit waive immunity for
suits going directly to their core activities
They -- they in fact indicate that they -shy
they need to waive suit in these suits
And so I -- I think when youre
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talking about what are the suits that are going
to come up under commercial activity many of
them are already going forward because the IFC
and the World Bank and others have waived their
immunity
JUSTICE GINSBURG And they need to
because
MR ELLIS They need to because no
ones going to enter into a financial
transaction with them if they -- they know they
cant sue if it -- if it goes south
The other thing -- I want to also
focus the Court on the -- on the suits that we
know are not going to go forward on the
absolute immunity side Were talking about
suits by -- by US citizens and residents
about domestic conduct and theyre seeking
redress in US courts
These are the suits that foreign
governments are -- are able to be sued on and
dont have immunity And we dont see any
reason why international organizations should
not also be subject to suit in those
circumstances and we think thats exactly what
the Congress was trying to do when it enacted
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Section 288 in 1945
If there are no -- no further
questions we ask the Court to reverse
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Verrilli
ORAL ARGUMENT OF DONALD B VERRILLI
ON BEHALF OF THE RESPONDENT
MR VERRILLI Thank you Mr Chief
Justice and may it please the Court
The IOIA prescribes a standard of
virtual absolute immunity that is fixed and not
evolving We know that because the text
incorporated common law terms that had a
settled meaning of virtually absolute immunity
and because a fixed standard makes the most
sense in light of the statutory context and
purpose
Now the reason that Congress enacted
the IOIA was to fulfill treaty obligations that
committed us to provide virtually absolute
immunity Those treaty obligations did not
commit us to treat international organizations
the same as foreign states were treated They
committed us to the substantive standard of
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virtually absolute immunity
And therefore if -- if -- if the
language in section 288b is interpreted in the
way my friends on the other side suggest -shy
JUSTICE SOTOMAYOR So why didnt
Congress say that the way it did in the other
provisions of this Act And if it intended
that in no change it could have said it and
given the very exception it gave which is that
the President or the executive could reduce
immunity which was the standard at the time
MR VERRILLI So let me start with
the basic question We think if the Court
applies the normal rules of construction that
it applies in statutory interpretation cases
that Congress did say that it was providing
virtually absolute immunity
And I think a case in particular that
I would point the Court to is the Nader
decision 527 US and in particular to page
21 of the Nader decision Thats a case -shy
that case of course was about whether mail
fraud and wire fraud incorporated a materiality
standard This is an opinion by Chief Justice
Rehnquist unanimous for the Court on this
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point The Court said first we look to the
text of course and when looking to the text
if we -- if -- and in looking to the text
based solely on a natural reading of the full
text materiality wouldnt be an element of the
fraud statute
And then the Court says But that
does not end the inquiry because in
interpreting statutory language theres a
necessary second step And this is -- Im
coming to the point that I think governs here
which is that it is a well-established rule of
construction a rule of construction that
where Congress uses terms that have accumulated
settled meaning under the common law a court
must infer must infer unless the statute
dictates otherwise that Congress means to
incorporate the established meaning of those
terms Now the -shy
JUSTICE GINSBURG What about the
argument that there wasnt an established
meaning in -- what was it -- 1945 that it -shy
the -- the status of the immunity was in flux
It had been absolute but then we were going
over -- the State Department was advising the
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court whether immunity should be given in a
particular case
MR VERRILLI Theres a bit of a
suggestion to that effect in the brief of the
United States Your Honor but I would
respectfully suggest that is not a fair
characterization of where things stood in 1945
at all
It is true that some people within the
State Department in 1945 thought that immunity
should move to a more restrictive standard but
the Justice Department would not even advance
that standard in this Court at the request of
the State Department and this Court did not
describe the immunity as being in flux This
Court said the standard was virtually absolute
immunity
If one looks even in 1952 at the Tate
Letter the Tate Letter didnt say the law was
in flux in the United States It said the
United States was hewing to the standard of
virtually absolute immunity but other
countries were moving towards a standard of
restrictive immunity and therefore we ought
to reconsider what were doing
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So I just -- I mean the Court can
read these materials for -- for itself but I
just respectfully do not think its a fair
consideration of where things stood in 1945 at
all
And then if I could Id like to pick
up on a related point that came up in the brief
of the United States Its another statement
in the brief of the United States and it came
up in argument today that look this really
isnt a problem because for those organizations
that need immunity that goes beyond the -- the
restrictive immunity weve always understood
that they get -- they can go get a special
statute and theyve gone and gotten special
statutes
The United States says on page 27 of
its brief precisely because the IOIA didnt
provide that level of immunity they give these
three examples IMF World Trade Organization
and Organization of American States
Id like to take a minute and go
through each of them because it doesnt hold up
with respect to each of them With respect to
the IMF for example it is true the IMF you
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know it has a -- has a treaty There was a
statute that gave that treaty effect under US
law which ended up providing for absolute
immunity
But it cant possibly be that that was
undertaken based on any sense that the IOIA
didnt provide that level of immunity because
the IMF statute was enacted in July of 1945
and the IOIA wasnt enacted until five months
later So it cant possibly substantiate what
the government was saying
If one looks at the WTO treaty it is
true with respect to that treaty that it
committed us to a very wide scope of
immunities It said that the United -- that
the United States will commit to providing all
or virtually all of the immunities provided
under a whole different UN convention the
UN convention on specialized agencies
Now that convention has all kinds of
tax immunities and property immunities that go
way beyond what the IOIA provides So of
course they needed another statute in order to
make those treaty commitments That doesnt
prove anything about whether anybody thought
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that the IOIA failed to provide virtually
absolute immunity
In fact the historical evidence I
think really to the extent it points in any
direction it points very much more in our
direction And the best way to see that is
with respect to the way the United Nations was
treated under -- by the executive branch in
this country
Now we signed the UN charter in
1945 committed us to provide what the charter
describes as the necessary immunities Then
the UN Convention on Immunities was
negotiated in 1946 which said that the UN
should get virtually absolute immunity Not
the same immunity as foreign states virtually
absolute immunity
Now the United States did not ratify
that convention until 1970 So on the theory
that my friends on the other side have from
the moment of the Tate Letter in 1952 when
foreign state immunity became restrictive and
not virtually absolute anymore we were in
violation of the commitment we made in the UN
charter
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Now if that was true you would
certainly expect the State Department A to
address it in the Tate Letter but theres
nothing in there Its a classic case of the
dog that didnt bark And B you would expect
them to try to do something about it like get
the UN Convention ratified immediately
because otherwise we were going to be out of -shy
out of compliance with our obligations to the
granddaddy of all international organizations
the United Nations
But theres not a -- from 1952 until
the ratification of the Convention in 1970 you
cant find one word by anybody in the executive
branch ever saying that What you do find -shy
JUSTICE SOTOMAYOR What commercial
activities was the UN doing at that time
MR VERRILLI Well -shy
JUSTICE SOTOMAYOR I know today its
a very different organization but its not
clear to me that there was much going on that
was commercial at its initial stages
MR VERRILLI I take that point Your
Honor but what I would say in response is that
there was a very great deal of sensitivity
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about the whole package of -- of immunities
that were available to the UN and its
diplomats and its -- and its workers
And there was concern all along from
1952 to 1970 that -- that -- where the
executive was urging Congress to ratify the
convention but the only things ever mentioned
were the diplomats -- immunities for diplomatic
individuals
And then when you get to 1970 and you
actually look at the Senate report accompanying
the ratification this was not in our brief
but its at page 31 of the brief of the -- of
the scholars who filed the brief in support of
us It quotes the Senate report from 1970 and
what the Senate report says is were not
granting the UN any -- the UN as an
organization any immunity it didnt already
have under the IOIA
So as late as 1970 it was just quite
clear that everybody understood the IOIA
conferred virtually absolute immunity And of
course thats because it was -- it was enacted
to comply with our treaty obligations
It wasnt enacted to make sure that
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come what may that international organizations
would get treated the same as foreign states
That is -- you know thats the best way to
think about it is its just a completely
anachronistic way of thinking about the body of
materials in front of you
JUSTICE KAGAN But even what you just
said Mr Verrilli it wasnt enacted to make
sure that foreign organizations would get
treated the same as foreign states
I mean thats exactly what the
language of the thing says
MR VERRILLI Well so I guess a
couple of things about that I think the right
way to think about the language Justice Kagan
is that it was a means to an end in 1945 when
it was enacted
It was not the end in itself to assure
equivalence of treatment come what may It was
the means by which Congress ensured that it
would fulfill its treaty commitments which were
-- and those treaty commitments were to provide
virtually absolute immunity
And we know the Senate report says
were enacting this provision to fulfill our
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treaty commitments And our treaty
commitments again were not to treat them the
same They were to provide virtually absolute
immunity So -shy
JUSTICE KAGAN Do you think it was -shy
you answered Justice Ginsburgs questions about
how far we were from the Tate Letter in 1945
but do you think it was inconceivable to
Congress that the common law of immunity would
change
MR VERRILLI Well I -- I -- I cant
say that it would be inconceivable to anybody
but what I can say is if one looks at the
debates surrounding the passage of the IOIA
is once again its a dog that didnt bark
You cant find a single person
anywhere saying anything remotely like the
proposition that we need to adopt a standard
that will evolve over time because we have a
concern that foreign sovereign immunity law
will evolve over time
That just was not any part of
anybodys thinking at that time They were
trying -- you have to remember this is coming
out of the Bretten Woods system We have
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Bretten Woods We set up all these
organizations
They have a -- they have a desperate
mission in front of them to try to rebuild the
world -- the world after the carnage of World
War II Theres a lot of pressure on Congress
to get these organizations up and going and
give them the immunity we promised them so they
can go out and do their work Thats what led
to the enactment of the IOIA
It was none of these other things as
I said I really think if you look at the
historical materials its the -- the gloss
that my friends on the other side are trying to
put on it is completely anachronistic
Theyre taking a different concept
that theyve come up with now and trying to
retrofit the historical facts to match it and
it just isnt right
JUSTICE BREYER Is that -- is that -shy
the Russians at that time 45 and so forth
were putting all these businesses into state
entities So my guess is there were -- there
were a number of cases and what I thought I
heard Mr Fisher say is if we really go back
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and look at this well see that the status quo
before this passed was not absolute immunity
but the status quo was a kind of mess where
sometimes the State Department would say give
them immunity and sometimes the State
Department would say not
Now what is the actual situation as
far as youve been able to find it
MR VERRILLI Well I dont -shy
respectfully with respect to my friends on the
other side I dont think thats a fair
characterization of the historical materials
JUSTICE GINSBURG Thats the same -shy
the answer you gave to me is the answer you
would give to Justice Breyer
MR VERRILLI Yes
JUSTICE GINSBURG Same question
MR VERRILLI Yes I mean its just
not there I mean look at what this Courts
cases said This Courts cases didnt say
anything like that
The -- the -- the governments briefs
to this Court didnt say anything like that
When this Court has looked back on the law in
Verlinden and in Samantar it hadnt said
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anything like that It said the standard was a
common law standard of virtually absolute
immunity
And thats in fact how the Tate
Letter describes it too And then as a process
matter -shy
JUSTICE BREYER Okay I got it
MR VERRILLI -- my friends on the
other side have made this argument that well
our position would also require you to go back
to the process of the State Department making
an ad hoc case-by-case determination but
thats wrong too
And thats clear on the face of the
statute that its wrong And the reason -- and
-- and thats right in Section 288 This
creates an entirely different mechanism
What the -- what the IOIA says is that
-- that the President shall have the authority
under executive order once Congress has
enacted a statute to grant an international
organization the privileges and immunities
And if you look at the face of the
statute its obvious that they are granted on
a categorical basis in gross by an executive
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order not on a case-by-case basis by the State
Department when -- when a lawsuit is -- or when
a -- when a lawsuit is filed
And then similarly in terms of the
Presidents authority as to an executive order
to reduce or eliminate the -- the immunity of
an international organization that -- its -shy
again its completely different than the
situation that -- than the common law process
at work So obviously Congress made a
judgment that it was going to put a different
structure and system in place
And the fact that Congress did that I
do say -- I do think quite clearly presupposes
that theres a -- the existence of a
substantive standard being prescribed And the
substantive standard as I said is virtually
absolute immunity
And then in terms of the structural
indicators in the statutory text going back to
a question you asked Justice Sotomayor I
really think the most telling one to -- to
show you I think why my friends on the other
sides case is completely anachronistic and
were correct -- is Section 288f which you can
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find at page 6a of the appendix to the blue
brief
That provision says that the
privileges exemptions and immunities of
international organizations and then of -- of
members and employees et cetera shall be
granted notwithstanding the fact that similar
privileges exemptions and immunities granted
to a foreign government et cetera et cetera
may be conditioned upon the existence of
reciprocity by that foreign government
So right there in the text it
decouples the treatment of international
organizations from the treatment of foreign
states Even in a situation in which the
United States would not grant the full range of
virtually absolute immunity because it wasnt
being -- receiving reciprocal treatment this
statute says the international organization
gets it So -shy
JUSTICE GINSBURG How do you deal
with the argument that we just heard that we
can compare 288a on the one hand which -shy
which keeps the international organizations in
tune with foreign sovereigns and 288 -- was it
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b and d
MR VERRILLI Yes I do think that
the -- the differences break down into two
categories Your Honor There -- some of the
provisions do prescribe fixed standards
Thats true But those fixed standards as we
explained in our brief or at least tried to
are always situations in which the IOIA is
conferring a narrower set of immunities on -shy
on diplomats and individuals than the common
law would have at the time
So incorporation of the standard in
the way this 288a(b) did wouldnt accomplish
the objective there because there was -- they
were quite consciously trying to narrow the
overall scope of immunities and not give the
individuals who worked at these organizations
the same full treatment that diplomats got who
-- from foreign states
Now the second subcategory are the
provisions where the -- the statute says that
their -- the treatment shall be the same But
theres two things about that that are
significant
One is it says they shall be the same
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as under another statutory provision And as
we said we think thats vitally important
here We think its quite clear that in
addition to Justice Breyers points about the
reference canon that the reference canon
applies when one statute incorporates another
It doesnt apply when one statute incorporates
the common law And here they were
incorporating statutes
And if you look at those provisions
anyway theyre basically just instructions to
the executive branch when do you fingerprint
the people when theyre coming in What do you
do about that -- this detail or that detail
They dont go to the heart of the
matter at all And the heart of the matter
here is the immunity being conferred on these
international organizations
I just want to make a point about that
and then if I could talk about the
consequences that will ensue I think if we go
down the path that my friends on the other side
are suggesting
I think this is a critical point I
just want to make sure its clear Another
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reason why you shouldnt draw this equivalence
-- and it cant be that Congress really
intended to draw an equivalence between foreign
states and international organizations such
that they would just move in tandem no matter
what -- is that immunity is granted for
different reasons
The reason you give an international
organization immunity is a functional reason
not a status reason Its not about according
the appropriate respect to the sovereigns
because international organizations arent
sovereigns Theyre separate juridical
persons And whats quite clear -- its clear
from the U -- the San Francisco report on the
foundation of the UN its clear from the
Senate report in 1945 its clear from all the
commentators that we discussed in our brief
its clear from the Restatement of Foreign
Relations which weve cited in our brief that
you grant immunity to international
organizations so that they can carry out their
functions effectively And -- and just take -shy
let me take a minute and kind of elaborate on
that because I think its critical
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Remember these are -shy
CHIEF JUSTICE ROBERTS If you dont
mind Im afraid Im about five minutes behind
you here but going -- going back to your point
on 288f you said its there theyre decoupling
the international organizations and the foreign
sovereigns But as I go back and read it
its simply because the -- the foreign
sovereigns have the capability to use
reciprocity and the foreign -- and the
multi-country organizations do not
I dont -- I mean thats the
difference theyre drawing there not something
between the scope of the actual immunities
MR VERRILLI Well I -- well the
way I read it Mr Chief Justice is what -shy
what theyre doing there is saying even in a
situation in which the United States concludes
that it wont afford a foreign sovereign the
full virtually absolute immunity because of
reciprocity in other words were not getting
it back from them even in that situation an
international organization of -- where those
sovereigns are members will still receive the
full level of immunity
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And so I think what that tells us is
that what Congress was trying to do in this
statute overall was prescribe a fixed
substantive standard not a floating standard
where the two things move in tandem So -- and
I -- I do think it supports that
And if I could just go back to the
functional point remember these are
collective bodies and members come together
they make -- they -- they take resources from
each of their own countries They put them
into these organizations They make collective
decisions about how to deploy those resources
And the point of the immunity here is
so that the courts of any country but
especially the host country which for the most
important organizations are going to be here in
the United States cant override the
collective judgments that they make about how
their resources would be deployed and what
conditions they ought to impose et cetera by
the intervention of domestic law in US courts
and cant redirect the funds that are put into
these organizations to pay massive class action
tort judgments because of course the member
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countries are contributing this money because
they believe its going to be put to the use
that the -- for example the development bank
the development bank decides it should be put
to not to pay massive tort judgments
And I think one place you see this
very clearly if you look at the report of the
San Francisco conference about the founding of
the UN the State Departments -shy
Departments response coming -- report coming
out of that conference specifically says this
It says of course the United Nations cant be
subject to the jurisdiction of any one state or
its courts
And its for exactly this reason And
the same thing is true generally Thats why
you give it not for functional reasons -- I
mean excuse me not for reasons of status but
for functional reasons
And I think a key -- another key
reason why you shouldnt be thinking about this
as a standard that evolves evolves now and
over time is that those functional reasons
dont evolve now and over time
CHIEF JUSTICE ROBERTS Well what
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about the point that most of the concerns you
have are going to be dealt with by the
requirement of a nexus to activity in the
United States as opposed to simply abroad
where the projects are funded
MR VERRILLI Yes I was gratified
to hear the United States say that but -- and
-- but I could just -- Ill answer Your Honors
question directly but I want to broaden it out
a little bit because I think what essentially
the United States is saying here is look the
statute leaves one with no choice but to apply
restrictive principles of immunity Youve got
to jump off that cliff but dont worry it
will be a soft landing because the FSIA will
take care of a lot of these problems
And I guess what I would say about
that is in the unlikely event you dont agree
with me I -shy
(Laughter)
MR VERRILLI -- I hope theyre
right But theres no guarantee that theyre
right
JUSTICE BREYER Are the -- are the
lending decisions which may be fairly detailed
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and may include dozens of conditions made
within the United States
MR VERRILLI Well yes I think
thats a big part of the problem and -shy
JUSTICE BREYER Is there -- are there
lawsuits that could say that there was
negligence in determining in a different
country who the persons were or the conditions
under which the money would be spent Is that
an American lawsuit saying what youve done
here is commit the act of negligence or failure
to be a fiduciary here
MR VERRILLI Thats this lawsuit
Thats this lawsuit Justice Breyer Thats
exactly what theyre alleging
CHIEF JUSTICE ROBERTS Well but I
mean is that consistent with our opinion in
the OBB case which I think -- if the complaint
is based the gravamen of the complaint not
specific steps along the way and that was the
issue we dealt with in that case
And I appreciate the fact that its
you know to some extent dependent on the facts
and particular allegations but it would seem
to me to require a lot more than simply the
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specific decisions I think where -- wheres
the gravamen or gravamen however you say it
with whats going on here
MR VERRILLI Well we would
certainly say its India of course
CHIEF JUSTICE ROBERTS Yeah
MR VERRILLI And if -- if we have to
defend ourselves on that basis we will But I
-- but I -- I think it -- it understates the
real concrete risk here And what Id like to
do to illustrate that if I could is first
talk about the organizations that are going to
be exposed in a way that they wouldnt be under
the law
And as Justice Breyer indicated
earlier its important to remember this has
been the law in the DC Circuit for decades
and theres -- and people have ordered their
affairs based on the assumption that there was
virtually absolute immunity
But with respect -- but with respect
to the consequences and the groups affected and
then the types of effects With respect to the
groups affected youve got entities like us
the multilateral development banks And
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Justice Breyers identified many of them
Now the -- the main ones are here
here in Washington DC and theyre making
their decisions here and I think critically
too there are billions of dollars of assets
here
Now were going to make the OBB
argument for sure and I hope we win if we have
to make the argument I hope we win But who
knows how courts are going to come out on that
issue
Were going to have a lot of fighting
about that There are probably going to be
matters of degree Theres certainly going to
be significant disincentives arising out of
that uncertainty
Theres a whole another group of
entities that unlike the banks at least have
articles of agreement where we can try and fall
back on those for alternative arguments of
immunity where their immunity depends entirely
on the statutory grant the International
Committee of the Red Cross the World Health
Organization the fund to fight -- the global
fund to fight AIDS and tuberculosis and
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malaria
They are all entirely dependent on the
IOIA for their immunities and those immunities
are drastically different after this And then
we do have the issue I think with some
organizations that we may even actually now be
out of our -- out of compliance with our treaty
commitments
Now whats going to happen Heres
what I think is going to happen and I think
this lawsuit helps you see it
Now the way -- the basis of this
lawsuit is the following IFC when it loans
money here its loaning money in -- in parts
of the world where private capital wont go
unless we go in there
And very often they have un-developed
legal systems and they certainly dont have
robust environmental protections or labor
protections So what the IFC has done is lien
into those put those kinds of environmental
standards and labor standards into its
agreements saying you want this money to do
this development project these are the
standards that youve got to live up to
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And -- and this lawsuit is that -shy
that the entity that we loan this money to
didnt live up to the standards and its our
fault And so were being sued here
Well its going to create -- if that
kind of a suit can go forward and hopefully it
wont be able to Mr Chief Justice but if it
can its certainly going to create an
extraordinary disincentive for organizations
like ours to lien into those kinds of standards
because were going to be hoist by our own
petard
Now weve also got a robust internal
accountability mechanism where if people think
something has gone wrong on one of our
projects they can come to us and they can say
-- they can say look theres a problem here
And they -- and we investigate We take
internal remedial measures if we find theres a
problem
Well you know the factual basis for
the lawsuit is the report of our internal
accountability process
So if they can just grab that and take
it into court and make it the basis for a class
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action tort lawsuit in which they can make a
claim for all this money its going to create
a powerful disincentive for us not to engage in
that kind of self-policing activity
And I would submit that you know
even if things ultimately work themselves out
under the FSIA and I hope they -- I hope we
dont have to deal with that but even if we
do its going to take a very long time There
are going to be a lot of difficult cases at the
margin There are going to be very serious
disincentives immediately
And conversely you know were a big
fat target here These organizations have lots
of money And of course foreign plaintiffs
want to sue here They can bring a class
action They get liberal discovery They can
get punitive damages They get all of these
advantages by suing here
So instead of suing the person that
actually injured them the power plant in
India they come here and sue us
And I really think what you are going
to see here is that this is just going to
become another version of the sorts of
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foreign-cubed lawsuits that the Court has been
concerned about under the Alien Tort Statute
where the international organization is just
going to be subbed in for the foreign defendant
and its going to be subbed in in a situation
where were going to have a very significant
pile of money
And if I could just close with this
thought -- Im just going to pick up on Justice
Breyers thought -- the law in the District of
Columbia where virtually all these
organizations have been housed are
headquartered has been virtually absent
immunity under DC circuit law for decades
Thats the standard everybody has been
operating on
Nobodys suggested that anything has
gone wrong under this statute that there are
any deleterious policy consequences that the
interests of the United States are adversely
affected in any way In fact if you look at
the amicus brief from the former Secretaries of
Treasury and State they think that the policy
of the government arguing now is going to
disrupt the United States ability to function
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effectively with these organizations
It has all been fine And -- but
theyre asking you essentially to repeat a
metaphor to jump off a cliff And hopefully
it will be a soft landing But we dont know
that And it could easily result in a lot of
disruption to the good work that these
organizations do
And I guess what I would suggest is
that if thats going to happen it ought to
happen through legislation Congress can look
at this Congress can change the law if it
wants to But this has been the law for a very
long time There is no evidence that it has
done anything other than work well
And therefore I think the Court
should affirm the DC Circuit Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Four minutes Mr Fisher
REBUTTAL ARGUMENT OF JEFFREY L FISHER
ON BEHALF OF THE PETITIONERS
MR FISHER Thank you Id like to
make four points and Id like to start with the
text of the statute itself and simply say when
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Mr Verrilli talks about the Neder Doctrine and
the Common Law Doctrine that you look at the
term a terms meaning at the time of
enactment Hes mixing apples and oranges
And I think all the citations in our
reply brief should make it absolutely clear
that theres a doctrine on the one hand that
talks about incorporating a body of law and
theres a doctrine on the other hand about
giving meaning to a specific term Were in
the former camp here
And as to the point about whether the
common law was evolving at the time two
things Well stand on the papers as to the
fact that it was somewhat in flux
But the more important point is even
if it werent in flux it wouldnt matter one
wit because the other side is making a
sweeping proposition which is any general
reference to common law is fixed in time
That would disrupt any number of
federal statutory regimes from the Federal
Tort Claims Act enacted the year after this
statute the Equal Access to Justice Act the
federal governments piracy statute Federal
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Rule of Evidence 501 I could go on and on
with federal statutory regimes that reference
the common law in exactly the same way the
statute does here
The Civil Rights Act of 1866 if you
want one more All of those would come out the
other way from this Courts jurisprudence and
from all the understanding if the other side is
right about statutory interpretation
So I think the only thing the other
side has is they have a bunch of policy points
to make for this Court
Now we dont think they should
control but let me answer them So first as
to our treaty obligations So one about at the
moment of enactment My friend kept saying
that there were various agreements in place
that required virtually absolute immunity
None of the agreements use those
words Instead what those agreements said is
that certain organizations were entitled to
immunity to allow them to perform their
necessary functions Thats a very different
thing than absolute immunity
And its very different because none
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of the organizations involved were performing
Justice Sotomayor commercial activities that
were essential to their core functions not the
UN not any of the other organizations
So we werent in breach of any treaty
rights And if you have any doubt on that I
would urge you to look to the federal
governments position then and now Its not
just a brief filed in this Court
It is the position that four different
Presidential Administrations have taken The
Carter Administration right after the FSIA was
passed the George H W Bush Administration
the Clinton Administration and now the Trump
Administration have all consistently held that
the FSIA rules are incorporated into the FSIA
Next on the floodgates concern I
explained earlier and I hope you will think
about the fact that while the core activities
of the IFC might be commercial activity not
all of the IFCs activities are and certainly
not all the activities of international
organizations are
But let me add one more thing My
friend talked about big lawsuits of ruinous
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liability Well theres two very easy ways to
control that
One is to the extent any claims are
on contracts they can write their own
contracts and negotiate their own contracts
As the Solicitor General points out they can
even deal with third-party beneficiaries in
their contracts if they choose
Secondly as to tort claims they can
and in fact commonly do indemnify themselves
against tort lawsuits In this very case
their agreement indemnifies them against any
judgment and all legal fees
So these organizations have every
manner of method to deal with any potential
liability And in fact they are which sort
of belies the suggestion that they think
theyre absolutely immune from lawsuit
Finally let me say one thing about
the so-called foreign cubed problem or the
facts of this case Now obviously we think
that we would satisfy the gravamen test They
have never made that argument And if they
want to make it we can -- we can have that
conversation in the lower courts
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But bear in mind what youre being
asked to do in this case is to announce a
categorical rule for all cases dealing with
international organizations
So my friend in the Solicitor
Generals Office talked about just regular tort
slip and fall cases and the like in the United
States Let me give you one other thing to
think about
Some international organizations
actually do their work in the United States
The border cooperation -- the Border
Environmental Cooperation Commission does
wastewater treatment plants in Texas and
California
I cant think of any reason why they
would be immune from those infrastructure
projects in a way that no private business or
public government would be
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1206 pm the case
was submitted)
Heritage Reporting Corporation
69Official - Subject to Review
1 392151723 4122 4223 433
452 462 4718 4817 5220 57
allegations [1] 5624
alleging [1] 5615 B
1108 [2] 115 32 20 651824 allow [3] 2321 246 6522 back [22] 44 61420 10513 11
1206 [1] 6822 Absolutely [3] 3113 646 6718 allowed [1] 2610 17 154422 172425 1911 226
1602 [1] 1412 Access [1] 6424 allows [3] 231220 242 4425 4524 4610 4720 5247
17-1011 [1] 34 accident [1] 2615 almost [2] 719 253 22 537 5820
1866 [1] 655 accompanying [1] 4111 already [4] 311521 323 4118 backwards [4] 514 23161724
1904 [2] 614 1725 accomplish [1] 4913 alternative [1] 5820 bad [1] 1416
1934 [1] 49 according [2] 1817 5110 Altmann [1] 1318 bank [13] 719 81822 98 2716
1945 [17] 1013 142025 151213 accountability [2] 601423 amended [1] 1615 283455 3022 324 5434
15 1617 331 3522 36710 374 accumulated [1] 3514 American [3] 112 3721 5610 banks [9] 88910 271415 2911
388 3911 4216 437 5117 across [1] 1025 amicus [4] 122 27 2011 6222 3021 5725 5818
1946 [1] 3914 Act [15] 320 6319 1412 1724 20 amounts [1] 2411 bare [1] 1524
1952 [4] 3618 3921 4012 415 422 212 301518 347 5611 64 anachronistic [3] 425 4415 47 bark [2] 405 4315
1970 [6] 3919 4013 415101520 2324 655 24 barred [2] 2689
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1994 [1] 115 activities [11] 8517 195 2717 another [13] 323 144 167 1923 5719
2 2910 3122 4017 662192122 2122 378 3823 501625 5420 basic [1] 3413
20 [2] 28 2622
20-some [1] 2624
2018 [1] 111
21 [1] 3421
27 [1] 3717
288 [4] 2213 331 4616 4825
288a [3] 1915 2018 4823
288a(b [4] 2024 2111 2215 49
13
288a(d [1] 2110
288b [1] 343
288d [1] 1916
288d(a [1] 2110
288f [2] 4725 525
activity [23] 791820 81015 94
69 2551718 27182325 2914
17 3010 31211 322 553 614
6620
actors [1] 2912
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11
ad [1] 4612
add [3] 1424 2510 6624
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adjust [2] 1212 1720
Administration [4] 66121314
5817 6125
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1817 2514 451414 558 6514
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APPEARANCES [1] 117
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6
apply [7] 1010 161 1919 2215
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2125
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8 6322
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3 15 2521 507 5512 between [2] 513 5214
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30 [1] 2622 Administrations [1] 6611 appropriate [1] 5111 big [5] 2223 3022 564 6113 66
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33 [1] 211 adopting [1] 47 area [2] 171618 billions [1] 585
4 adoption [1] 1610
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arent [1] 5112
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bit [2] 363 5510
blue [1] 481
45 [1] 4421 advantages [1] 6119 arguing [1] 6224 bodies [1] 539
5 5 [1] 1612
501 [1] 651
527 [1] 3420
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7 5111 625 1410 1914 2010
2213 2314 337 3521 3710 46
9 4822 5889 6321 6723
arguments [2] 416 5820
body [4] 32325 425 648
border [2] 681212
both [1] 2211
bounds [1] 1714
branch [11] 1024 1481318 151
6 affected [3] 572224 6221 arising [1] 5815 161924 398 4015 5012
63 [1] 214 affirm [1] 6317 Armed [1] 63 breach [1] 665
6a [1] 481 afford [2] 296 5219 articles [1] 5819 break [1] 493
8 afraid [2] 1625 523
Africa [1] 3023
Asia [1] 3023
Asian [1] 284
Bretten [2] 4325 441
BREYER [40] 43 513162022 6
80-some [1] 2623 African [1] 285 assets [1] 585 16 717 817 912 108 1117 12
A agencies [1] 3819
agree [3] 2018 253 5518
Assistant [1] 120
Association [1] 286
22 133 147 157 238111923
24259151821 2712 282914 am [2] 115 32
agreed [1] 294 assume [3] 1221 1711 222 301619 3147 4420 4515 467 ability [4] 12121315 6225
agreement [4] 282325 5819 67 assuming [1] 277 5524 56514 5715 able [7] 1023 2423 2513 264 32
12 assumption [2] 1223 5719 Breyers [4] 164 504 581 6210 20 458 607
agreements [5] 2821 5923 65 assurance [1] 318 brief [16] 618 115 364 377918 above-entitled [1] 113
171920 assure [3] 30619 4218 41121314 482 497 511820 abroad [1] 554
agricultural [1] 84 attenuated [1] 2523 6222 646 669 absent [1] 6213
AIDS [1] 5825 authority [7] 212425 2241114 briefs [1] 4522 absolute [33] 1922 201 22310
AL [1] 13 4619 475 bring [1] 6116 20 2610 282025 3215 331215
Alan [1] 1624 available [3] 11810 412 broaden [1] 559 21 34117 3524 361622 383
Alien [1] 622 BUDHA [1] 13
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70Official - Subject to Review
building [1] 2613
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Bush [1] 6613
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C California [2] 118 6815
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Carcieri [1] 67
care [1] 5516
Career [1] 63
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Carter [1] 6612
Case [35] 34 4189 548 6236
88161718 9162025 14116
191 2117 2511 34182122 36
2 404 4724 561821 671121
6822122
case-by-case [2] 4612 471
cases [13] 413 61 92 158 1824
269 3415 4424 452020 6110
6837
categorical [2] 4625 683
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Certainly [7] 1313 402 575 58
14 5918 608 6621
cetera [4] 48699 5321
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changes [1] 46
characterization [2] 367 4512
charter [6] 2816 311920 3910
1125
Chase [1] 618
CHIEF [15] 339 20713 3349 34
24 52216 5425 5616 576 607
6318 6820
choice [2] 174 5512
choose [1] 678
Circuit [4] 1814 5717 6214 63
17
circumstances [1] 3224
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Civil [1] 655
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Claims [3] 6423 6739
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2521 2716 4021 4121 4614 50
325 511414161719 646
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Clinton [1] 6614
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Columbia [1] 6211
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19 4417 539 5810 6016 6122
656
comes [2] 548
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541010
commentators [1] 5118
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1015 9469 2551618 27317
182325 291417 3010 312 32
2 401622 66220
Commission [1] 6813
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4312 598
committed [4] 332125 3814 39
11
Committee [1] 5823
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67 3314 3515 439 462 479 49
10 508 6421320 653
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17
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Congress [36] 1023 1125 1224
25 1317 1415 174710111217
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20 439 446 4620 471013 512
532 631112
Congresss [1] 1215
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6219
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Contoe [1] 1624
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19 40713 417
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310 34131925 351715 361
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1 6316 6512 669
Courts [6] 523 1518 2520 4519
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Cross [1] 5823
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3 6317
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DC [1] 6214
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3022 4025 4821 618 67715
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4
decouples [1] 4813
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degree [1] 5814
deleterious [1] 6219
denying [1] 315
Department [15] 121 56 917 18
25 198 2823 3525 36101214
402 4546 4611 472
Departments [2] 54910
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development [13] 271415 2845
56 2911 302124 5434 5725
5924
dichotomy [1] 1916
dictates [1] 3517
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181 2111 3818 4020 4416 46
17 47811 517 567 594 6523
25 6610
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disruption [1] 637
District [1] 6210
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9
dog [2] 405 4315
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17
dollars [1] 585
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down [5] 1722 182 1925 493 50
22
dozens [1] 561
draft [1] 203
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E each [3] 372324 5311
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effectively [2] 5123 631
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ELLIS [31] 120 26 2091013 21
21 2212 23921 2447141719
23 2621 27481013 2881115
294820 3018 313613 328
employees [3] 214 2221 486
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89 412325 42817 4621 6423
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644 6516
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Equal [1] 6424
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5316
ESQ [6] 11824 2361013
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ET [5] 13 48699 5321
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10 265 2714141415 361218
427 4815 521722 596 6168
6416 677
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Ex [1] 1514
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4211 5415 5615 653
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3725 543
examples [2] 1025 3720
exception [5] 79 256 271925
349
excuse [1] 5418
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151161924 3410 398 4014
416 462025 475 5012
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F face [2] 461423
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13 487 5622 6221 6415 6619
671016
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2525 652 667
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Finally [1] 6719
FINANCE [2] 16 35
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481 6019
fine [1] 632
fingerprint [1] 5012
first [10] 7123 102 1412 1610
1724 2324 351 5711 6514
FISHER [23] 118 2313 3679 5
12151721 10418 1381013 16
31321 173 4425 63202123
fisheries [1] 81
fit [2] 106 1520
five [3] 818 389 523
fixed [8] 212 2219 331216 495
6 533 6420
floating [1] 534
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flux [6] 189 3523 361520 6415
17
focus [1] 3213
following [1] 5913
foolish [1] 1816
foreign [39] 3131819 7141518
812 97 1216 19720 219 234
9 2512 3219 3324 391622 42
2910 4320 489111425 4919
51319 52681019 6115 624
6720
foreign-cubed [1] 621
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265 32314 606
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Four [3] 632024 6610
Francisco [2] 5115 548
fraud [3] 342323 356
friend [6] 2016 2120 254 6516
6625 685
friends [7] 344 3920 4414 4510
468 4723 5022
front [2] 426 444
frozen [1] 2117
FSIA [10] 1411 15423 2718 297
5515 617 66121616
fulfill [3] 3320 422125
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23
functions [3] 5123 6523 663
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further [1] 332
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G gave [5] 517 124 349 382 4514
General [7] 120 322 113 1716
1811 6419 676
Generals [1] 686
generally [1] 5416
George [1] 6613
gets [1] 4820
getting [3] 923 148 5221
GINSBURG [5] 326 3520 4513
17 4821
Ginsburgs [1] 436
give [24] 56 61722 824 1018 11
21 1221115 131 15171920
3016 31814 3719 448 45415
4916 518 5417 688
given [10] 41 15122 175 1914
2211 3115 349 361
gives [4] 31117 812 1116
giving [1] 6410
Glad [1] 2423
global [1] 5824
gloss [1] 4413
goal [1] 1411
Gorsuch [6] 410 163142225
1813
got [9] 510 2317 289 467 4918
5513 5724 5925 6013
gotten [1] 3715
government [7] 127 318 3811
48911 6224 6819
governments [4] 92 4522 6425
668
governmental [1] 123
governments [11] 31319 812 9
1 12110 219 23410 2720 32
20
governs [1] 3511
grab [1] 6024
granddaddy [1] 4010
grant [8] 2023 2225 2313 246
4621 4816 5121 5822
granted [4] 4624 4878 516
granting [1] 4117
grants [2] 824 302
gratified [1] 556
gravamen [7] 25222425 5619
5722 6722
great [3] 188 2425 4025
gross [1] 4625
group [2] 710 5817
groups [2] 572224
guarantee [1] 5522
guess [6] 922 299 4213 4423
5517 639
H
Heritage Reporting Corporation Sheet 3 disruption - guess
72Official - Subject to Review
half [1] 2810 importing [1] 1419 11 595 56101314 591113 60122 61
hand [3] 4823 6479 impose [1] 5321 itself [7] 716 811 116 2416 372 1 6718
happen [4] 59910 631011 incentives [1] 142 4218 6325 lawsuits [5] 319 566 621 6625
hasten [1] 1424 include [1] 561 J 6711
headquarter [1] 1022 Including [1] 2711 lay [1] 1925
headquartered [4] 1022 2619 inconceivable [2] 43812 JAM [2] 13 34 lead [4] 153410 319
25 6213 incorporate [1] 3518 JEFFREY [5] 118 2313 37 63 least [4] 186 2410 497 5818
headquarters [2] 2615 292 incorporated [6] 325 72 169 33 21 leave [1] 420
Health [1] 5823 14 3423 6616 JONATHAN [3] 120 26 2010 leaves [1] 5512
hear [2] 33 557 incorporates [2] 5067 JR [2] 124 210 led [1] 449
heard [2] 4425 4822 incorporating [2] 509 648 judge [1] 1319 left [1] 2016
heart [2] 501516 incorporation [1] 4912 judgment [2] 4711 6713 legal [2] 5918 6713
heightened [1] 144 increase [1] 226 judgments [3] 531925 545 legislation [3] 813 175 6311
held [2] 309 6615 indeed [4] 427 187 203 Judiciary [2] 619 1724 legislative [1] 1119
helps [1] 5911 indemnifies [1] 6712 July [1] 388 lend [2] 423 2412
hewing [1] 3621 indemnify [1] 6710 jump [2] 5514 634 lending [8] 889101623 2719
historical [4] 393 441318 4512 India [4] 2623 575 6122 juridical [1] 5113 2910 5525
history [4] 316 1119 2119 2818 Indian [2] 47 68 jurisdiction [1] 5413 lends [1] 302
hoc [1] 4612 indicate [1] 3123 jurisprudence [2] 523 657 lens [1] 712
Hoffman [1] 1514 indicated [1] 5715 Justice [96] 121 339 4310 513 less [1] 229
hoist [1] 6011 indicators [1] 4720 162022 616 717 817 912 108 Letter [6] 361919 3921 403 437
hold [1] 3723 individualized [1] 1417 1117 121822 133591112 14 465
Honor [4] 2420 365 4024 494 individuals [3] 419 491017 67 156 1634142225 1812 20 level [3] 3719 387 5225
Honors [1] 558 infer [2] 351616 713 2121 238111923 24259 liability [2] 67116
hope [6] 5521 5889 6177 6618 infrastructure [1] 6817 151821 2617 272691111 28 liberal [1] 6117
hopefully [2] 606 634 initial [1] 4022 2914 2938 301619 3147 32 lien [2] 5920 6010
hornbook [1] 1010 injured [1] 6121 6 33410 34524 3520 3612 40 light [1] 3317
hornbooks [1] 43 injuries [1] 262 1619 42715 4356 4420 4513 limited [1] 1224
host [3] 2025 217 5316 inquiry [1] 358 1517 467 4721 4821 504 522 list [1] 3020
housed [1] 6212 insertion [1] 69 16 5425 5524 5651416 576 little [2] 102 5510
however [1] 572 instance [1] 2220 15 581 607 629 6318 6424 66 live [2] 5925 603
I instead [2] 6120 6520
institutions [2] 81823
2 6820
K loan [3] 820 2924 602
loaning [1] 5914 idea [4] 14816 1618 2618
identified [1] 581
IFC [10] 710 8111919 256 283
323 591320 6620
IFCs [2] 3120 6621
II [1] 446
illustrate [1] 5711
IMF [6] 283 302 37202525 388
immediately [2] 407 6112
immune [4] 215 252 6718 6817
immunities [19] 2025 2216 234
instructions [1] 5011
intended [2] 347 513
Inter-American [1] 284
interest [1] 1114
interests [1] 6220
interfere [1] 3110
internal [3] 60131922
INTERNATIONAL [37] 16 3511
17 422 72224 824 1025 1421
1921 2221 232 251 286 3222
3323 4010 421 4621 477 485
KAGAN [6] 2121 2938 42715
435
keeps [1] 4824
kept [1] 6516
key [2] 542020
kind [5] 825 453 5124 606 614
kinds [5] 716 2618 3820 5921
6010
knowing [1] 101
knows [2] 198 5810
loans [5] 2912131822 5913
lobby [1] 1023
locate [1] 1014
lock [1] 175
long [5] 45 1011 1322 619 63
14
look [32] 61315 724 911 108 13
18 168121416 1713 2021 21
19 2311 2817 311920 351 37
10 4111 4412 45119 4623 50
10 547 5511 6017 6221 6311 3815172121 391213 4118 131924 5018 51481221 526 L 642 667 4622 4848 49916 5214 5933 23 5822 623 6622 68410 labor [2] 591922 looked [4] 44 158 3020 4524
immunity [119] 312171820 419 Interpol [1] 83 landing [2] 5515 635 looking [2] 3523 212425 559 9152125 1024 interpret [1] 1017 language [8] 1017 1518 202 21 looks [3] 3618 3812 4313 11672123 1229911161925 interpretation [2] 3415 659 13 343 359 421215 lot [10] 2017 221 2814 319 446 13120 145141721 15219 16 interpreted [1] 343 last [1] 49 5516 5625 5812 6110 636 1 191922 20124 213925 223 interpreting [2] 619 359 late [1] 4120 lots [2] 420 6114 991922 2337131415 2436 intervention [1] 5322 later [3] 4916 3810 lower [3] 2722 309 6725 101125 259 26510 28152025
297 3025 3121 3251521 33 investigate [1] 6018
inviolable [1] 213
latter [1] 1717
Laughter [4] 172 2318 241 55 M
121522 3411117 3523 36110 involved [2] 149 661 20 made [10] 53 1223 1415 18910
15172224 37121319 3847 39 IOIA [21] 31115 11816 2023 22 law [46] 32425 61121 714 82 3924 469 4710 561 6723
215161722 411822 4223 434 17 2624 331120 3718 3869 1056 131516 1419 151212 mail [1] 3422
920 448 4525 463 47618 48 22 391 411921 4314 4410 46 15 1620 17151618 18567 21 main [1] 582
17 5017 516921 522025 53 18 498 593 14 3314 3515 3619 383 439 malaria [1] 591
14 5513 5720 582121 6214 65 ISMAIL [1] 13 20 4524 462 479 4911 508 53 managing [1] 81
182224 isnt [6] 1618 2513 31910 3711 22 571417 621014 631213 64 manner [1] 6715
important [5] 1324 502 5317 57 4419 281320 653 many [9] 413181818 725 1025
16 6416 isolation [1] 2020 laws [1] 306 2618 322 581
importantly [1] 257 issue [6] 1219 211116 5621 58 lawsuit [14] 1223 15225 4723 margin [1] 6111
Heritage Reporting Corporation Sheet 4 half - margin
73Official - Subject to Review
market [2] 820 2918
massive [2] 5324 545
match [1] 4418
materiality [2] 3423 355
materials [4] 372 426 4413 45
12
matter [7] 113 1716 466 5016
16 515 6417
matters [1] 5814
mean [14] 4111213 64 914 248
251 371 4211 451819 5212
5418 5617
meaning [7] 179 3315 351518
22 64310
means [4] 524 3517 421620
meant [3] 64 223 2910
measure [1] 126
measures [1] 6019
mechanism [2] 4617 6014
member [1] 5325
members [3] 486 5224 539
mentioned [2] 1813 417
mess [1] 453
metaphor [1] 634
metes [1] 1714
method [1] 6715
might [2] 718 6620
mind [2] 523 681
minimum [1] 1524
minute [2] 3722 5124
minutes [2] 523 6320
mission [1] 444
mistake [1] 53
Mister [1] 293
mixed [1] 923
mixing [1] 644
modern [1] 1817
moment [5] 4115 105 3921 65
16
monetary [1] 411
money [14] 41223 820 2413 30
7 541 569 59141423 602 612
15 627
months [1] 389
morning [2] 2017 3116
most [6] 232 257 3316 4722 53
16 551
move [3] 3611 515 535
moving [1] 3623
much [5] 141 2517 3112 395 40
21
multi-country [1] 5211
multilateral [1] 5725
multinational [1] 2911
must [4] 251718 351616
N Nader [2] 341921
narrow [1] 4915
narrower [1] 499
nations [4] 418 397 4011 5412
natural [1] 354
nature [2] 123 2924
necessary [4] 1720 3510 3912
6523
Neder [1] 641
need [7] 1116 306 3124 3268
3712 4318
needed [2] 291 3823
negligence [2] 56711
negotiate [4] 1214 143 2825 67
5
negotiated [3] 115 1220 3914
never [1] 6723
New [1] 2616
next [2] 34 6617
nexus [2] 2517 553
nobody [2] 59 925
Nobodys [1] 6217
non-commercial [1] 85
none [3] 4411 651925
normal [1] 3414
nothing [3] 101 2411 404
notwithstanding [1] 487
Number [6] 242424 2713 3115
4424 6421
numbers [1] 2621
O OAS [4] 113 1221 282224
OBB [3] 2520 5618 587
objective [1] 4914
obligations [5] 332022 409 41
24 6515
obvious [1] 4624
obviously [2] 4710 6721
occurred [2] 2622
occurs [1] 2519
October [1] 111
Office [1] 686
officers [2] 214 2220
official [1] 215
officials [2] 192021
often [1] 5917
Okay [5] 512 2323 24518 467
old [1] 187
once [2] 4315 4620
one [47] 41823 5118 6217 819
1317 14369 1622 173 1868
1113 191218 211116 2424 25
10 273 3013 3118 3618 3812
4014 4313 4722 4823 4925 50
67 54613 5512 6015 64717
65615 6624 67319 688
ones [1] 329
one-way [1] 225
ones [1] 582
only [8] 423 62 2116 225 2810
296 417 6510
open [1] 3117
opening [1] 267
operating [1] 6216
opinion [4] 69 1624 3424 5617
opponents [2] 321 61
opportunity [1] 143
opposed [1] 554
opposite [3] 417 1345
oral [7] 114 2259 37 2010 337
oranges [1] 644
order [6] 292 306 3823 4620 47
15
ordered [1] 5718
Ordinarily [1] 296
ordinary [2] 610 117
Organization [16] 1124 1421 19
321 372021 4020 4118 4622
477 4819 519 5223 5824 623
organizations [1] 2614
organizations [56] 31218 422 7
2225 824 101421 1111422
214 2221 232 2518 261923
281319 3120 3222 3323 3711
4010 4219 4427 4851424 49
17 5018 5141222 52611 53
121724 5712 596 609 6114
6212 6318 6521 661423 67
14 68410
original [2] 1118 203
originally [1] 1616
other [41] 421 6225 77 8621
23 95 13125 141019 1715 18
21 1924 2113 224 23312 24
16 2912 3212 3446 3622 39
20 441114 4511 469 4723 50
22 5221 6315 64918 657810
664 688
others [2] 1221 324
otherwise [2] 3517 408
ought [5] 813 161 3624 5321
6310
ourselves [1] 578
out [19] 6810 1413 2416 2813
4089 4325 449 5122 5411 55
9 581015 5977 616 656 676
over [7] 1620 3024 3525 4319
21 542324
overall [2] 4916 533
override [1] 5318
own [10] 615 12131317 1518
2815 5311 6011 6745
P pm [1] 6822
package [1] 411
PAGE [5] 22 3420 3717 4113
481
papers [1] 6414
part [5] 1219 1411 2122 4322
564
Parte [1] 1514
particular [6] 916 178 341820
362 5624
particularly [1] 2118
partly [1] 1120
parts [1] 5914
party [5] 2724 2923 3011113
passage [2] 416 4314
passed [5] 525 813 1316 452
6613
past [3] 41215 92
path [1] 5022
pathway [1] 156
pathways [3] 119 1721 181
pay [2] 5324 545
people [4] 369 5013 5718 6014
percentage [1] 2812
perfect [1] 183
perform [1] 6522
performing [1] 661
perhaps [1] 3110
permissible [2] 623 1321
person [3] 2320 4316 6120
persons [2] 5114 568
pertinent [1] 1618
Peru [1] 1514
petard [1] 6012
Petitioners [10] 141923 24814
38 201219 6322
phrase [1] 2020
pick [4] 164 2015 376 629
picks [1] 281
pile [1] 627
piracy [1] 6425
place [3] 4712 546 6517
plain [2] 314 1913
plaintiff [1] 311
plaintiffs [1] 6115
plant [1] 6121
plants [1] 6814
please [3] 310 2014 3310
point [17] 1718 281222 297 34
19 35111 377 4023 501924
524 53814 551 641216
points [8] 166 3115 3945 504
6324 6511 676
policies [1] 142
policy [9] 1079151516 1418
621923 6511
political [1] 1418
politically [1] 1423
position [5] 1525 1822 4610 66
810
possibly [2] 38510
potential [1] 6715
power [2] 249 6121
powerful [1] 613
practical [2] 101920
practice [1] 296
precisely [1] 3718
prescribe [2] 495 533
prescribed [1] 4716
prescribes [1] 3311
present [1] 324
presented [1] 2515
President [9] 55 1225 136 225
24 2313 243 3410 4619
Presidents [3] 1212 2214 475
presidential [4] 2123 22411 66
11
pressure [1] 446
presumptively [1] 252
presupposes [1] 4714
pretty [1] 3022
principal [1] 1113
principle [1] 614
principles [1] 5513
Heritage Reporting Corporation Sheet 5 market - principles
74Official - Subject to Review
prior [1] 65 10 394 441225 4722 512 61 397 4510 5111 57212123 seen [1] 1520
private [12] 81421 2724 2912 23 respectfully [3] 366 373 4510 self-policing [1] 614
182223 3011113 5915 6818 reams [1] 61 Respondent [4] 1725 211 338 Senate [6] 123 41111516 4224
privileges [4] 233 4622 4848 reason [17] 109 1891012 1910 Respondents [1] 269 5117
probably [3] 815 93 5813 23 2212 3222 3319 4615 511 Respondents [2] 2112 236 sense [5] 183 221 247 3317 38
problem [8] 911 137 1420 3711 8910 541521 6816 response [3] 918 4024 5410 6
564 601720 6720 reasons [7] 1621 173 517 5417 responses [1] 2419 sensitivity [1] 4025
problems [2] 149 5516 181923 responsive [1] 1115 separate [2] 818 5113
process [4] 46511 479 6023 rebuild [1] 444 rest [1] 206 serious [3] 2511 263 6111
procure [1] 144 REBUTTAL [3] 212 206 6321 Restatement [1] 5119 set [3] 218 441 499
profit [1] 820 receive [3] 2222 2310 5224 restrictions [1] 304 sets [1] 212
programs [1] 825 received [1] 234 restrictive [8] 117 265 297 36 setting [1] 176
project [1] 5924 receiving [1] 4818 1124 3713 3922 5513 settled [2] 3315 3515
projects [4] 821 555 6016 6818 reciprocal [1] 4818 result [1] 636 settles [1] 2021
promised [1] 448 reciprocity [3] 4811 521021 retroactive [2] 131821 several [1] 211
property [1] 3821 reconsider [1] 3625 retroactivity [1] 1319 shall [4] 4619 486 492225
proposition [2] 4318 6419 Red [1] 5823 retrofit [1] 4418 shouldnt [4] 91620 511 5421
protection [1] 2624 redirect [1] 5323 reverse [1] 333 show [1] 4723
protections [2] 591920 redress [1] 3218 Rights [2] 655 666 shows [1] 231
prove [1] 3825 reduce [2] 3410 476 risk [1] 5710 side [20] 62625 8619 95 131
provide [9] 232 2923 3321 37 refer [3] 415 1619 2114 ROBERTS [9] 33 207 334 522 25 1419 1924 3215 344 3920
19 387 39111 4222 433 reference [10] 159 165 1719 18 5425 5616 576 6318 6820 4414 4511 469 5022 6418 65
provided [2] 2216 3817 11 1911 219 5055 6420 652 robust [2] 5919 6013 811
provides [2] 2024 3822 referenced [2] 611 185 roll [1] 226 sides [3] 1410 1821 4724
providing [3] 3416 38316 referential [1] 2113 roll-back [1] 2124 signed [1] 3910
provision [16] 3141723 116 17 referred [1] 2120 ruinous [1] 6625 significant [3] 4924 5815 626
6 2123 222614 2311219 28 refers [3] 323 167 2312 rule [13] 322 1425 1511 1757 similar [1] 487
16 4225 483 501 regard [2] 2567 20 1925 212 2610 351213 65 similarly [1] 474
provisions [8] 1320 212814 34 regardless [1] 2514 1 683 simply [4] 528 554 5625 6325
7 49521 5010 regiment [1] 1222 rules [4] 1919 2219 3414 6616 single [1] 4316
public [2] 825 6819 regimes [2] 6422 652 Russians [1] 4421 sitting [1] 1813
punitive [1] 6118 regular [1] 686 S situation [10] 611 1323 161 18
purpose [9] 46 101112161619 regulating [1] 813 4 457 479 4815 521822 625
111820 3318 regulation [1] 725 safer [1] 102 situations [1] 498
put [10] 712 122 292 4415 4711 regulations [1] 305 Samantar [1] 4525 slip [2] 2613 687
531123 5424 5921 Rehnquist [1] 3425 same [22] 3121618 721 1299 so-called [1] 6720
putting [1] 4422 reintroduce [1] 1420 11 1559 1919 3324 3916 422 soft [2] 5515 635
Q rejected [1] 624
related [1] 377
10 433 451317 49182225 54
16 653 solely [1] 354
Solicitor [4] 120 113 676 685 quasi-sovereign [1] 3018 Relations [1] 5120 San [2] 5115 548 sometimes [6] 1113 166 1816 question [13] 71112 107 1122 relief [2] 41112 satisfy [1] 6722 194 4545 1425 164 1822 2421 2514 34 remain [1] 1311 save [1] 205 somewhat [1] 6415 13 4517 4721 559 remains [1] 137 saying [11] 98 292024 3811 40 somewhere [1] 2622
questions [6] 78 109 1317 18 remedial [1] 6019 15 4317 5217 5511 5610 5923 sorry [2] 1921 2319 17 333 436 remedy [2] 62223 6516 sort [10] 1323 26811 27222325
quintessential [1] 2611 Remember [7] 1112 128 1411 says [17] 621 95 176 191820 2925 30811 6716 quite [9] 45 111519 299 4120 4324 521 538 5716 357 3717 4116 421224 4618 sorts [2] 2717 6125 4714 4915 503 5114 remotely [1] 4317 48319 492125 541112 SOTOMAYOR [16] 1218 1359
quo [2] 4513 removing [1] 3025 scholars [1] 4114 1112 146 2617 2726911 345 quotes [1] 4115 renovated [1] 2613 scientific [1] 83 401619 4721 662
R repeat [1] 633 scope [3] 3814 4916 5214 south [1] 3211
raised [1] 1219
range [2] 2622 4816
ratchet [1] 225
rates [1] 820
rather [4] 92121 205 267
ratification [2] 4013 4112
ratified [1] 407
ratify [2] 3918 416
read [3] 372 52716
reading [2] 2019 354
real [1] 5710
really [12] 54 9202224 2020 37
reply [2] 618 646
report [10] 123 41111516 4224
511517 54710 6022
request [1] 3613
require [3] 2819 4610 5625
required [2] 1819 6518
requirement [2] 303 553
research [2] 844
reserving [1] 1912
residents [1] 3216
resolution [1] 82
resources [3] 53101320
respect [10] 215 372424 3813
second [8] 52 72 103 168 18
12 2325 3510 4920
Secondly [1] 679
Secretaries [1] 6222
section [17] 141212 1612 1915
16 201824 21101011 221315
2410 331 343 4616 4725
sector [2] 81421
see [10] 9142223 2118 3221 39
6 451 546 5911 6124
seeking [1] 3217
seem [1] 5624
seems [2] 102 2416
Sovereign [11] 320 9152125 19
6 2719 3041525 4320 5219
sovereigns [8] 197 302 4825
511113 527924
special [6] 88 1024 115 1219
371415
specialized [1] 3819
specific [6] 1619 176 1811 56
20 571 6410
specifically [1] 5411
spending [1] 91
spent [1] 569
stages [1] 4022
Heritage Reporting Corporation Sheet 6 prior - stages
75Official - Subject to Review
stand [1] 6414
standard [20] 33111625 3411
24 361113162123 4318 4612
471617 4912 5344 5422 62
15
standards [7] 4956 59222225
60310
Stanford [1] 118
start [5] 521 15711 3412 6324
started [1] 1522
Starting [2] 321 78
State [23] 55 7141518 9716 18
25 198 2114 2823 3525 3610
14 3922 402 4422 4545 4611
471 54913 6223
statement [1] 378
STATES [39] 111522 27 418
11312 2011 25219 2620 271
3111 3324 3652021 378917
21 3816 391618 42210 4815
16 4919 514 5218 5318 5547
11 562 6220 68811
States [1] 6225
status [5] 3523 4513 5110 54
18
statute [32] 47 525 74 101212
129 167791111 35616 3715
382823 46152124 4819 49
21 5067 533 5512 62218 63
25 642425 654
statutes [2] 3716 509
statutory [13] 323 51922 176
3317 3415 359 4720 501 58
22 6422 6529
Steamboat [2] 61724
step [1] 3510
steps [2] 723 5620
still [2] 137 5224
stilted [1] 1815
stood [2] 367 374
streets [1] 2616
stronger [1] 2517
structural [1] 4719
structure [4] 315 2022 2122 47
12
stuck [1] 910
stuff [1] 75
subbed [2] 6245
subcategory [1] 4920
subject [5] 12111314 3223 54
13
submit [3] 1410 155 615
submitted [2] 682123
subsection [5] 19181820 2022
subsequently [1] 1615
substantiate [1] 3810
substantive [4] 3325 471617 53
4
suddenly [1] 3025
sue [3] 3211 611622
sued [4] 232022 3220 604
suggest [3] 344 366 639
suggested [1] 6217
suggesting [1] 5023
suggestion [2] 364 6717
suggestions [1] 1417
suing [2] 611920
suit [18] 312 41 524 6412 72
1314 15311 215 233 251322
25 312124 3223 606
suits [6] 312224 321131619
support [1] 4114
supporting [3] 122 28 2012
supports [1] 536
SUPREME [2] 1114
surrounding [1] 4314
Sutherland [2] 613 1725
sweep [2] 724 258
sweeping [1] 6419
Switzerland [1] 98
system [2] 4325 4712
systems [1] 5918
T talked [2] 6625 686
talks [3] 811 6418
tandem [2] 515 535
target [1] 6114
Tate [6] 361819 3921 403 437
464
tax [1] 3821
tells [1] 531
tense [1] 324
Tenth [1] 1814
term [3] 410 64310
terms [1] 643
terms [5] 3314 351419 47419
test [2] 1521 6722
Texas [1] 6814
text [16] 31421 51922 191315
15 2018 3313 352235 4720
4812 6325
textual [1] 75
themselves [2] 616 6710
theory [2] 1224 3919
theres [23] 920 181 1910 2016
2111 2622 3118 359 363 403
12 446 4715 4923 5522 5718
581417 601719 6479 671
therefore [3] 342 3624 6316
theyve [2] 3715 4417
thinking [3] 425 4323 5421
third [3] 913 231725
third-party [1] 677
thirdly [1] 1215
three [2] 218 3720
tie [1] 1715
tied [1] 1016
today [5] 1917 2115 236 3710
4019
together [1] 539
took [1] 1718
tort [8] 5325 545 611 622 6423
67911 686
tortious [1] 261
towards [1] 3623
Trade [1] 3720
traditionally [1] 3111
transaction [3] 2925 3011 3210
transactions [1] 814
Treasury [1] 6223
treat [4] 1216 3323 432
treated [4] 3324 398 42210
treatise [2] 613 1725
treatment [7] 4219 48131418
491822 6814
treaty [17] 121417 332022 381
2121324 4124 422122 4311
597 6515 665
tried [1] 497
true [9] 45 721 2119 369 3725
3813 401 496 5416
Truman [1] 1825
Trump [1] 6614
try [4] 1816 406 444 5819
trying [7] 3023 3225 4324 4414
17 4915 532
tuberculosis [1] 5825
tune [1] 4825
turn [2] 104 1117
turning [1] 1416
two [15] 416 518 77 1317 1621
17321 181 2025 2113 49323
535 6413 671
type [2] 15325
types [1] 5723
U UN [16] 1013 1220 381819 39
10131424 40717 4121717 51
16 549 664
US [5] 321618 3420 382 5322
ultimately [1] 616
un-developed [1] 5917
unanimous [1] 3425
uncertainty [1] 5816
under [22] 319 118 1224 1424
22514 26524 322 3515 382
18 398 4119 4620 501 569 57
13 617 6221418
understand [2] 1821 261
understanding [1] 658
understates [1] 579
Understood [4] 2417 299 3713
4121
undertaken [1] 386
UNITED [33] 111522 27 1112
2011 2519 262025 3111 365
2021 378917 381516 39718
4011 4816 5218 5318 5412 55
4711 562 622025 68711
unless [2] 3516 5916
unlike [1] 5818
unlikely [1] 5518
until [3] 389 3919 4012
up [18] 44 923 164 2015 2225
281 322 37771023 383 441
717 5925 603 629
urge [2] 1914 667
urging [1] 416
uses [2] 178 3514
usual [1] 295
V various [1] 6517
vast [1] 258
Verlinden [1] 4525
VERRILLI [25] 124 210 33679
3412 363 401823 42813 43
11 4591618 468 492 5215 55
621 56313 5747 641
version [1] 6125
versus [2] 34 618
view [1] 2913
violation [1] 3924
virtual [1] 3312
virtually [22] 331521 34117 36
1622 3817 391151623 4122
4223 433 462 4717 4817 52
20 5720 621113 6518
vitally [1] 502
W waive [7] 917 2313 24310 3121
2124
waived [1] 324
wanted [4] 1711 19125 231
wants [1] 6313
War [1] 446
Washington [4] 1102124 583
wastewater [1] 6814
way [29] 6920 1216 1322 1421
157 1615 172325 2416 2516
21 3446 3822 3967 423515
4913 5216 5620 5713 5912 62
21 6537 6818
ways [3] 211 2211 671
wealth [1] 196
website [1] 811
Wednesday [1] 111
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whatever [1] 2311
wheres [1] 571
Whereupon [1] 6822
whether [7] 1321 156 2914 34
22 361 3825 6412
whole [4] 2025 3818 411 5817
wide [1] 3814
will [11] 311 3816 431921 5021
5224 551515 578 635 6618
win [2] 5889
wire [1] 3423
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within [5] 8916 106 369 562
Woods [2] 4325 441
word [11] 48101415 522 610
1589 1789 4014
words [5] 128 224 2912 5221
6520
work [8] 2213 2416 449 4710
616 63715 6811
workable [1] 1423
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World [13] 81722 2716 283 30
Heritage Reporting Corporation Sheet 7 stand - World
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2224 324 3720 44555 5823
5915
worry [1] 5514
write [1] 674
writes [1] 174
wrote [2] 4910
WTO [1] 3812
Yyear [1] 6423
York [1] 2616
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anything So knowing nothing about the
future it seems a little safer the first
than the second
MR FISHER Well Im going to turn
back in a moment to the law and why that just
cant fit within the law but as to just the
policy question youre asking me even there -shy
JUSTICE BREYER Well you can look -shy
the reason I ask policy questions is because
the hornbook said yes apply it as of now as
long as its consistent with the purpose of the
statute And the purpose of the statute going
back to 1945 and the UN and everything was
to get these organizations to locate here
So its not just policy for policy
Its policy for purpose And purpose is tied
into how you interpret the language
MR FISHER So let me give you the
practical answer and then the purpose answer
On the practical answer
organizations especially if they want a
headquarter here or are headquartered here are
fully able to -- to lobby Congress or the
executive branch for special immunity And
there are many examples across international
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organizations
Take the Organization of American
States OAS And the solicitor general
discusses this in -- the organization in its
brief In 1994 it negotiated a special
immunity provision for itself to get more than
the ordinary restrictive form of immunity that
was available under the IOIA
So there are -- there are pathways
available and they have been used even more
so
Remember the United States as you
say has a -- has a sometimes principal
interest in these organizations So it is
quite responsive to them when they come and
say We need more than the IOIA gives us
But Justice Breyer let me turn back
to the -- the original purpose which was the
legislative history is quite clear on what the
purpose was As you say this was partly to
create a form of immunity to give some comfort
to these organizations But the question is
what form of immunity did they ask for and what
did they get
What they did is they came to Congress
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and said treat us like foreign governments
Give us immunity as Congress put it in a
Senate report of a governmental nature And
so what did Congress do It gave them exactly
what they asked for It said were going to
treat you as a default measure like a foreign
government
And remember the words of the
statute are same immunity Same immunity
as is enjoyed by federal governments So were
going to give you the same immunity subject to
the Presidents ability to just -- adjust it
and subject to your own ability and your own
treaty to negotiate for more and subject
thirdly to Congresss ability to give you some
immunity that you dont have even by way of
your own treaty
JUSTICE SOTOMAYOR Can we go to that
issue raised in part The special immunity I
know was even negotiated by the UN I think
in the 1990s and OAS and others but assume
that were in your regiment and Justice Breyer
made the assumption that if a lawsuit came to
us now under your theory and it was limited
immunity that the President or Congress could
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give immunity to the other side
I dont think so
JUSTICE BREYER No its the
opposite
JUSTICE SOTOMAYOR The opposite The
President cant decrease it correct So that
problem still remains with your -shy
MR FISHER Well -shy
JUSTICE SOTOMAYOR Yeah
MR FISHER -- I think it -- it may
or may not remain Justice Sotomayor
JUSTICE SOTOMAYOR Thats my -shy
MR FISHER Certainly we could -- we
would say we can go forward on this suit
because -- because there is no such law
If that law were passed youd have
two questions One is did Congress make it
retroactive And you look to Altmann to think
about how to judge the retroactivity of
immunity provisions And then if it were
retroactive whether that were permissible
But you know were a long way from
-- from that sort of a situation I think the
important thing going forward and this is I
think what the concern is on the other side
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is not so much about this case but about
incentives and policies going forward they
have every opportunity to negotiate in one form
or another or to procure a heightened form of
immunity
And Justice Sotomayor let me say one
more thing to you and Justice Breyer about you
know the idea of the executive branch getting
involved This is one of the problems I
submit with the other sides argument
Remember part of the goal of the FSIA
in the first section of the Act in Section 1602
is to get -- is to get the executive branch out
of the immunity business
Congress made the determination that
it was a bad idea to have every case turning on
individualized suggestions of immunity and
executive branch political policy And so the
other side by importing the common law of
1945 would reintroduce that problem into
international organization immunity in a way
that we dont think would be very good
politically or very workable in the courts
And Id hasten to add that even under
the rule of 1945 if the question were what
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does the executive branch think about any given
lawsuit or any given immunity for any given
type of suit that would just lead you right
back to the FSIA and it would lead you back to
the same conclusion that we submit to you here
So either pathway whether Justice
Breyer you start with the way youve always
looked at cases with the word is and the
word same and the reference canon that Ive
described and say all of those things lead you
to a time of suit rule or if you start with
the law of 1945 and say what was the law in
1945
Well Hoffman and -- in Ex Parte Peru
were clear that the law of 1945 was the
executive branch decides and its not for the
Court -- this is -- Im going to give you the
Courts own language -- its not for the Court
to give immunity where the executive branch has
not seen fit to give it
And if that were the test youd come
right back to where you -- where I started
here which is that the FSIA would control or
at the bare minimum the executive branch
position in this lawsuit on the type of
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immunity that ought to apply in this situation
would control So -shy
JUSTICE GORSUCH Mr Fisher if I can
pick up on Justice Breyers question The
reference canon I take all -- all of your
points but sometimes lets say we have a
statute that -- that refers to another statute
Usually we would look at the second
statute thats being incorporated as of the
time of -- of the adoption of the first
statute Right So if -- if this statute were
to say go look at Section 5 -shy
MR FISHER Right
JUSTICE GORSUCH -- we wouldnt look
at it the way its been subsequently amended
Wed look at it as it was originally enacted in
1945
Why isnt that -- that idea pertinent
here you know when we refer to a specific
law we dont take it to evolve over time
MR FISHER So for two reasons
Justice Gorsuch and one of them if youll
forgive me is going to be something you said
in the Alan Contoe opinion
JUSTICE GORSUCH I was afraid of
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that
(Laughter)
MR FISHER But for two reasons One
is Congress has a choice to make when it writes
legislation It can lock in a given rule by
setting a specific statutory provision and says
thats the rule we want just like if Congress
uses a particular word at the time of the
enactment the meaning of that word at the time
of enactment would be what Congress -- wed
assume Congress wanted
Or Congress could do something
different which is to say look were not
sure exactly of the metes and bounds of the
law Were just going to tie it to this other
area of law as a general matter And thats
what Congress did here It did the latter
So it took an area of law as a point
of reference and said Just use that as the
default rule and then adjust as necessary And
those are just two different pathways Congress
can go down
And they date as I said all the way
back to the First Judiciary Act there in the
Sutherland treatise all the way back to 1904
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and so theres just two different pathways
Congress can go down
And it makes perfect sense I think
in a situation like this especially where you
have a common law doctrine being referenced at
least a common law at the time and one that
was indeed not just any old common law
doctrine but one that was in a great deal of
flux at the time So it made every reason -shy
it made every good reason for Congress to have
a general reference not a specific one
And then the second reason Justice
Gorsuch is the one you mentioned sitting on
the Tenth Circuit which is that as time goes
by it becomes all the more stilted or
antiquated or even foolish sometimes to try to
answer questions in the modern day according to
what some bygone era doctrine would have
required and especially a bygone era doctrine
like this
If I understand the other sides
position correctly basically the question
theyre having -- they would want every federal
court to ask in these cases is what would the
Truman Administrations State Department have
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wanted to do in this case
And when you have things like this
which didnt even -- an organization that
didnt even exist at the time sometimes doing
activities that werent even contemplated at
the time things like sovereign wealth funds
which foreign sovereigns now engage in for
example who knows what the State Department
would have thought then
I think theres every reason then to
fall back on the reference canon And if I can
say one more thing before reserving my time if
you have any doubt about just the plain text
argument Ive given you I would urge you to
compare the text in Section 288a to the text -shy
Section 288d which has the exact dichotomy
that -- that Ive been discussing today
One subsection subsection (a) says
that the same immunity rules apply and
subsection (b) says that foreign officials -shy
Im sorry international organization officials
are entitled to absolute immunity
So this is yet another reason why if
the other side were correct and if Congress had
wanted to lay down the rule they did why would
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they not have just used the absolute immunity
language in subsection (b) of subsection (d)
and that indeed was the original draft of
this act that was discarded
So I could go on but Id rather save
the rest of my time for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Ellis
ORAL ARGUMENT OF JONATHAN ELLIS FOR
THE UNITED STATES AS AMICUS
CURIAE SUPPORTING THE PETITIONERS
MR ELLIS Mr Chief Justice and may
it please the Court
If I could Id just like to pick up
right where my friend left off Theres been a
lot of discussion so far this morning on the
text of Section 288a We agree that the
Petitioners have the far better reading of that
phrase in isolation but I think it really
settles the deal when you look at the entire
structure of the Act
The -- the IOIA doesnt just grant
immunity in Section 288a(b) but it provides a
whole host of immunities and it does it in two
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different ways In several different
provisions the Act sets a fixed rule of
immunity So archives are inviolable and
officers and employees of the organizations are
immune from suit with respect to their official
acts
And then there are a -- a host a
collection of three provisions that set the
immunity by reference to foreign governments
Theyre Section 288a(d) Section 288d(a) and
theres Section 288a(b) the one at issue here
Respondents concede that the
referential language in those other two
provisions do refer to the state of the law as
it is today
Its only the one thats at issue in
this case that they say was frozen We dont
see how that can be and thats particularly
true when you look at the drafting history that
my friend referred to
JUSTICE KAGAN Mr Ellis before you
get to that another part of the structure is
this provision that deals with presidential
authority and thats essentially a roll-back
authority of immunity
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Doesnt that make a lot more sense
that provision if you assume that Congress
meant for there to be absolute immunity In
other words the presidential authority is a
one-way ratchet The President can only under
this provision roll it back It cant increase
it
So to me if I -- if -- if -- if -shy
if the immunity -- if the immunity is less than
absolute you would think that they would have
given the presidential authority both ways
MR ELLIS Sure The reason that
argument doesnt work is because Section 288
the Presidents authority under that provision
doesnt just apply to Section 288a(b) It
applies to all of the immunities provided by
the IOIA
And as I was just describing some of
those are fixed immunity rules that are not
absolute And so for instance the officers
and employees of international organizations do
not receive diplomatic immunity That was a
big deal at the time
And -- and yet the President cant -shy
couldnt grant that up I think what that
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provision shows is that Congress wanted to
provide international organizations at most the
immunity from suit and other privileges of
immunities that foreign governments received
and not more so
And yet Respondents are here today
asking you for exactly that more immunity -shy
JUSTICE BREYER But on that -shy
MR ELLIS -- than foreign
governments receive
JUSTICE BREYER But look whatever
other things it refers to the provision allows
the President to waive immunity not to grant
immunity And your argument is they have
immunity Right
Do I have -- I get this backwards
This is the third time Ive got it backwards
(Laughter)
JUSTICE BREYER Sorry The provision
allows the person to be sued Is that right
MR ELLIS It does allow them to be
sued
JUSTICE BREYER Okay So I was
right I had it backwards the first time but
not the second not the third all right
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(Laughter)
JUSTICE BREYER It allows the
President to waive the immunity
MR ELLIS Thats right
JUSTICE BREYER Okay It doesnt
allow him to grant the immunity
MR ELLIS It does in a sense I
mean -shy
JUSTICE BREYER But the power to
waive the immunity at least in this section
amounts to nothing if they have no immunity
because for example all they do is lend
money
MR ELLIS So -- so a couple -shy
JUSTICE BREYER Thats -- thats -shy
and the other way it seems to work itself out
MR ELLIS Understood
JUSTICE BREYER Okay
MR ELLIS A couple responses to
that Your Honor
JUSTICE BREYER Thats the question
I think
MR ELLIS Glad to be able to address
that Number -- number one just to be clear
we -- they do have a great deal of immunity I
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mean foreign -- international organizations
and foreign states are presumptively immune
And I would agree with almost everything
that -- maybe everything that -- that my friend
said about why the commercial activity
exception even with regard to IFC and -- and
most -- more importantly with regard to the
vast sweep of these organizations is not going
to eliminate immunity
I would add one more is that even a
case like this we have serious doubts I
think -- we think in fact from what we know
this suit isnt going to be able to go forward
regardless of the answer to the question
presented because in addition to having -- to
being connected in some way to commercial
activity there must be a much stronger nexus
It must be based on commercial activity that
occurs in the United States
We think the Courts decision in OBB
makes clear that the way you apply that is to
ask Whats the gravamen of this suit Its
not enough to have some attenuated connection
but whats the gravamen
And the gravamen of this suit as we
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understand it is -- is tortious conduct that
occurred in India injuries that occurred in
India And we dont think -- we have serious
doubts that this is going to be able to go
forward even under restrictive immunity
And so we do not think that what were
doing is opening the floodgates here rather
that the sort of concerns that would be barred
-- cases that would be barred by Respondents
absolute rule of immunity and would be allowed
by ours are -- are sort of quintessential
domestic disputes contract disputes with your
contractor who renovated the building the slip
and fall at the -- at the organizations
headquarters or the driving accident on the
streets of New York and DC
JUSTICE SOTOMAYOR Do you have -- do
you have any idea about how many of these kinds
of organizations are headquartered in the
United States
MR ELLIS I think the numbers are in
the 20 to 30 range Theres about -- somewhere
80-some organizations that have been designated
for protection under IOIA and 20-some that have
-- I think are headquartered in the United
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States
JUSTICE SOTOMAYOR That are
commercial like this one
MR ELLIS No no no No I did
not -- no
JUSTICE SOTOMAYOR Were -shy
everybodys assuming -shy
MR ELLIS Right
JUSTICE SOTOMAYOR -- a floodgate
MR ELLIS Sure no There are -shy
JUSTICE SOTOMAYOR Including Justice
Breyer
MR ELLIS -- there are a number of
development banks but even then even -- even
the development banks even if you talk about
the World Bank its not clear that those
commercial activities are the sorts that the -shy
the FSIA captures with the commercial activity
exception Lending there is to sovereign
governments
And -- and as the Court has been -- as
lower courts have explained that sort of
commercial activity is not the sort that a
private party could engage in So its not the
sort that the commercial activity exception
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picks up
JUSTICE BREYER Well I -- I have the
IFC the IMF the World Bank the
Inter-American Development Bank the Asian
Development Bank the African Development Bank
the International Development Association So
I -shy
MR ELLIS Sure I -shy
JUSTICE BREYER -- Ive got -- thats
only half of them
MR ELLIS Thats -- that -- Im not
sure what percentage that is I want to point
out that some of those organizations -shy
JUSTICE BREYER There are a lot
MR ELLIS -- have their own immunity
provision in the -- in their charter And so
thats what we think -- if you look at the
history thats what -- thats how it has been
dealt with for organizations that require
absolute immunity Weve entered into
agreements
I would point again to the OAS
agreement where the State Department is just
crystal-clear that what OAS did in that
agreement was to negotiate absolute immunity
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because they thought thats what they needed in
order to put their headquarters here
JUSTICE KAGAN But Mister -shy
MR ELLIS We agreed to that and we
said But hey this is not our usual
practice Ordinarily we -- we afford only
restrictive immunity We point to the FSIA
JUSTICE KAGAN Mr Ellis I -- I
guess Im not sure I -- I quite understood what
you meant As to the core lending activities
of these multinational development banks in
other words making loans where private actors
would not make loans do you have a view as to
whether that counts as a commercial activity or
not
Did you say that that would not count
as a commercial activity because theyre making
loans that the -- that the private market would
not make
MR ELLIS No Im -- Im not saying
that its -- that its enough that theyre
making loans that a -- that a private -- they
couldnt find a private party to provide Im
saying if the nature of the loan is such that
its -- its not the sort of transaction that a
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private party would enter into so think about
the IMF that grants -- that lends to sovereigns
and they do so on the requirement that the
sovereign enact certain restrictions -shy
regulations and change their -- their -- their
laws in order to assure that they dont need
the money again
That is the sort of thing thats been
held by lower courts and weve advocated is
not a commercial activity Thats just not the
sort of transaction that a private party can
enter -- enter into Its not just that a
private party didnt Its that -- that no one
-- thats not something that you can do
Thats a sovereign act
JUSTICE BREYER But can you give
me -shy
MR ELLIS Or a quasi-sovereign act
JUSTICE BREYER -- anything to assure
me because when I looked through this list I
thought that there were development banks like
the World Bank which is a pretty big deal as
well as in Asia in Africa were trying to
encourage development all over the world and
suddenly by removing the sovereign immunity
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because the plaintiff will claim this is a
commercial activity
MR ELLIS So -- so -shy
JUSTICE BREYER And youre not
denying it
MR ELLIS And so -shy
JUSTICE BREYER So what is the
assurance that the government can give us that
this isnt going to lead to a lot of lawsuits
and this isnt going to interfere with perhaps
activity that the United States traditionally
has been very much in favor of
MR ELLIS Absolutely Let me -- let
me give you a couple things I think weve
given you a number of -- of points already this
morning as to why we dont think the floodgates
are going to open
If -- if theres one more Ill say
just look at the -- the charter of these
organizations Look at the IFCs charter
They already waive suit waive immunity for
suits going directly to their core activities
They -- they in fact indicate that they -shy
they need to waive suit in these suits
And so I -- I think when youre
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talking about what are the suits that are going
to come up under commercial activity many of
them are already going forward because the IFC
and the World Bank and others have waived their
immunity
JUSTICE GINSBURG And they need to
because
MR ELLIS They need to because no
ones going to enter into a financial
transaction with them if they -- they know they
cant sue if it -- if it goes south
The other thing -- I want to also
focus the Court on the -- on the suits that we
know are not going to go forward on the
absolute immunity side Were talking about
suits by -- by US citizens and residents
about domestic conduct and theyre seeking
redress in US courts
These are the suits that foreign
governments are -- are able to be sued on and
dont have immunity And we dont see any
reason why international organizations should
not also be subject to suit in those
circumstances and we think thats exactly what
the Congress was trying to do when it enacted
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Section 288 in 1945
If there are no -- no further
questions we ask the Court to reverse
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Verrilli
ORAL ARGUMENT OF DONALD B VERRILLI
ON BEHALF OF THE RESPONDENT
MR VERRILLI Thank you Mr Chief
Justice and may it please the Court
The IOIA prescribes a standard of
virtual absolute immunity that is fixed and not
evolving We know that because the text
incorporated common law terms that had a
settled meaning of virtually absolute immunity
and because a fixed standard makes the most
sense in light of the statutory context and
purpose
Now the reason that Congress enacted
the IOIA was to fulfill treaty obligations that
committed us to provide virtually absolute
immunity Those treaty obligations did not
commit us to treat international organizations
the same as foreign states were treated They
committed us to the substantive standard of
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virtually absolute immunity
And therefore if -- if -- if the
language in section 288b is interpreted in the
way my friends on the other side suggest -shy
JUSTICE SOTOMAYOR So why didnt
Congress say that the way it did in the other
provisions of this Act And if it intended
that in no change it could have said it and
given the very exception it gave which is that
the President or the executive could reduce
immunity which was the standard at the time
MR VERRILLI So let me start with
the basic question We think if the Court
applies the normal rules of construction that
it applies in statutory interpretation cases
that Congress did say that it was providing
virtually absolute immunity
And I think a case in particular that
I would point the Court to is the Nader
decision 527 US and in particular to page
21 of the Nader decision Thats a case -shy
that case of course was about whether mail
fraud and wire fraud incorporated a materiality
standard This is an opinion by Chief Justice
Rehnquist unanimous for the Court on this
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point The Court said first we look to the
text of course and when looking to the text
if we -- if -- and in looking to the text
based solely on a natural reading of the full
text materiality wouldnt be an element of the
fraud statute
And then the Court says But that
does not end the inquiry because in
interpreting statutory language theres a
necessary second step And this is -- Im
coming to the point that I think governs here
which is that it is a well-established rule of
construction a rule of construction that
where Congress uses terms that have accumulated
settled meaning under the common law a court
must infer must infer unless the statute
dictates otherwise that Congress means to
incorporate the established meaning of those
terms Now the -shy
JUSTICE GINSBURG What about the
argument that there wasnt an established
meaning in -- what was it -- 1945 that it -shy
the -- the status of the immunity was in flux
It had been absolute but then we were going
over -- the State Department was advising the
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court whether immunity should be given in a
particular case
MR VERRILLI Theres a bit of a
suggestion to that effect in the brief of the
United States Your Honor but I would
respectfully suggest that is not a fair
characterization of where things stood in 1945
at all
It is true that some people within the
State Department in 1945 thought that immunity
should move to a more restrictive standard but
the Justice Department would not even advance
that standard in this Court at the request of
the State Department and this Court did not
describe the immunity as being in flux This
Court said the standard was virtually absolute
immunity
If one looks even in 1952 at the Tate
Letter the Tate Letter didnt say the law was
in flux in the United States It said the
United States was hewing to the standard of
virtually absolute immunity but other
countries were moving towards a standard of
restrictive immunity and therefore we ought
to reconsider what were doing
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So I just -- I mean the Court can
read these materials for -- for itself but I
just respectfully do not think its a fair
consideration of where things stood in 1945 at
all
And then if I could Id like to pick
up on a related point that came up in the brief
of the United States Its another statement
in the brief of the United States and it came
up in argument today that look this really
isnt a problem because for those organizations
that need immunity that goes beyond the -- the
restrictive immunity weve always understood
that they get -- they can go get a special
statute and theyve gone and gotten special
statutes
The United States says on page 27 of
its brief precisely because the IOIA didnt
provide that level of immunity they give these
three examples IMF World Trade Organization
and Organization of American States
Id like to take a minute and go
through each of them because it doesnt hold up
with respect to each of them With respect to
the IMF for example it is true the IMF you
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know it has a -- has a treaty There was a
statute that gave that treaty effect under US
law which ended up providing for absolute
immunity
But it cant possibly be that that was
undertaken based on any sense that the IOIA
didnt provide that level of immunity because
the IMF statute was enacted in July of 1945
and the IOIA wasnt enacted until five months
later So it cant possibly substantiate what
the government was saying
If one looks at the WTO treaty it is
true with respect to that treaty that it
committed us to a very wide scope of
immunities It said that the United -- that
the United States will commit to providing all
or virtually all of the immunities provided
under a whole different UN convention the
UN convention on specialized agencies
Now that convention has all kinds of
tax immunities and property immunities that go
way beyond what the IOIA provides So of
course they needed another statute in order to
make those treaty commitments That doesnt
prove anything about whether anybody thought
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that the IOIA failed to provide virtually
absolute immunity
In fact the historical evidence I
think really to the extent it points in any
direction it points very much more in our
direction And the best way to see that is
with respect to the way the United Nations was
treated under -- by the executive branch in
this country
Now we signed the UN charter in
1945 committed us to provide what the charter
describes as the necessary immunities Then
the UN Convention on Immunities was
negotiated in 1946 which said that the UN
should get virtually absolute immunity Not
the same immunity as foreign states virtually
absolute immunity
Now the United States did not ratify
that convention until 1970 So on the theory
that my friends on the other side have from
the moment of the Tate Letter in 1952 when
foreign state immunity became restrictive and
not virtually absolute anymore we were in
violation of the commitment we made in the UN
charter
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Now if that was true you would
certainly expect the State Department A to
address it in the Tate Letter but theres
nothing in there Its a classic case of the
dog that didnt bark And B you would expect
them to try to do something about it like get
the UN Convention ratified immediately
because otherwise we were going to be out of -shy
out of compliance with our obligations to the
granddaddy of all international organizations
the United Nations
But theres not a -- from 1952 until
the ratification of the Convention in 1970 you
cant find one word by anybody in the executive
branch ever saying that What you do find -shy
JUSTICE SOTOMAYOR What commercial
activities was the UN doing at that time
MR VERRILLI Well -shy
JUSTICE SOTOMAYOR I know today its
a very different organization but its not
clear to me that there was much going on that
was commercial at its initial stages
MR VERRILLI I take that point Your
Honor but what I would say in response is that
there was a very great deal of sensitivity
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about the whole package of -- of immunities
that were available to the UN and its
diplomats and its -- and its workers
And there was concern all along from
1952 to 1970 that -- that -- where the
executive was urging Congress to ratify the
convention but the only things ever mentioned
were the diplomats -- immunities for diplomatic
individuals
And then when you get to 1970 and you
actually look at the Senate report accompanying
the ratification this was not in our brief
but its at page 31 of the brief of the -- of
the scholars who filed the brief in support of
us It quotes the Senate report from 1970 and
what the Senate report says is were not
granting the UN any -- the UN as an
organization any immunity it didnt already
have under the IOIA
So as late as 1970 it was just quite
clear that everybody understood the IOIA
conferred virtually absolute immunity And of
course thats because it was -- it was enacted
to comply with our treaty obligations
It wasnt enacted to make sure that
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come what may that international organizations
would get treated the same as foreign states
That is -- you know thats the best way to
think about it is its just a completely
anachronistic way of thinking about the body of
materials in front of you
JUSTICE KAGAN But even what you just
said Mr Verrilli it wasnt enacted to make
sure that foreign organizations would get
treated the same as foreign states
I mean thats exactly what the
language of the thing says
MR VERRILLI Well so I guess a
couple of things about that I think the right
way to think about the language Justice Kagan
is that it was a means to an end in 1945 when
it was enacted
It was not the end in itself to assure
equivalence of treatment come what may It was
the means by which Congress ensured that it
would fulfill its treaty commitments which were
-- and those treaty commitments were to provide
virtually absolute immunity
And we know the Senate report says
were enacting this provision to fulfill our
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treaty commitments And our treaty
commitments again were not to treat them the
same They were to provide virtually absolute
immunity So -shy
JUSTICE KAGAN Do you think it was -shy
you answered Justice Ginsburgs questions about
how far we were from the Tate Letter in 1945
but do you think it was inconceivable to
Congress that the common law of immunity would
change
MR VERRILLI Well I -- I -- I cant
say that it would be inconceivable to anybody
but what I can say is if one looks at the
debates surrounding the passage of the IOIA
is once again its a dog that didnt bark
You cant find a single person
anywhere saying anything remotely like the
proposition that we need to adopt a standard
that will evolve over time because we have a
concern that foreign sovereign immunity law
will evolve over time
That just was not any part of
anybodys thinking at that time They were
trying -- you have to remember this is coming
out of the Bretten Woods system We have
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Bretten Woods We set up all these
organizations
They have a -- they have a desperate
mission in front of them to try to rebuild the
world -- the world after the carnage of World
War II Theres a lot of pressure on Congress
to get these organizations up and going and
give them the immunity we promised them so they
can go out and do their work Thats what led
to the enactment of the IOIA
It was none of these other things as
I said I really think if you look at the
historical materials its the -- the gloss
that my friends on the other side are trying to
put on it is completely anachronistic
Theyre taking a different concept
that theyve come up with now and trying to
retrofit the historical facts to match it and
it just isnt right
JUSTICE BREYER Is that -- is that -shy
the Russians at that time 45 and so forth
were putting all these businesses into state
entities So my guess is there were -- there
were a number of cases and what I thought I
heard Mr Fisher say is if we really go back
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and look at this well see that the status quo
before this passed was not absolute immunity
but the status quo was a kind of mess where
sometimes the State Department would say give
them immunity and sometimes the State
Department would say not
Now what is the actual situation as
far as youve been able to find it
MR VERRILLI Well I dont -shy
respectfully with respect to my friends on the
other side I dont think thats a fair
characterization of the historical materials
JUSTICE GINSBURG Thats the same -shy
the answer you gave to me is the answer you
would give to Justice Breyer
MR VERRILLI Yes
JUSTICE GINSBURG Same question
MR VERRILLI Yes I mean its just
not there I mean look at what this Courts
cases said This Courts cases didnt say
anything like that
The -- the -- the governments briefs
to this Court didnt say anything like that
When this Court has looked back on the law in
Verlinden and in Samantar it hadnt said
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anything like that It said the standard was a
common law standard of virtually absolute
immunity
And thats in fact how the Tate
Letter describes it too And then as a process
matter -shy
JUSTICE BREYER Okay I got it
MR VERRILLI -- my friends on the
other side have made this argument that well
our position would also require you to go back
to the process of the State Department making
an ad hoc case-by-case determination but
thats wrong too
And thats clear on the face of the
statute that its wrong And the reason -- and
-- and thats right in Section 288 This
creates an entirely different mechanism
What the -- what the IOIA says is that
-- that the President shall have the authority
under executive order once Congress has
enacted a statute to grant an international
organization the privileges and immunities
And if you look at the face of the
statute its obvious that they are granted on
a categorical basis in gross by an executive
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order not on a case-by-case basis by the State
Department when -- when a lawsuit is -- or when
a -- when a lawsuit is filed
And then similarly in terms of the
Presidents authority as to an executive order
to reduce or eliminate the -- the immunity of
an international organization that -- its -shy
again its completely different than the
situation that -- than the common law process
at work So obviously Congress made a
judgment that it was going to put a different
structure and system in place
And the fact that Congress did that I
do say -- I do think quite clearly presupposes
that theres a -- the existence of a
substantive standard being prescribed And the
substantive standard as I said is virtually
absolute immunity
And then in terms of the structural
indicators in the statutory text going back to
a question you asked Justice Sotomayor I
really think the most telling one to -- to
show you I think why my friends on the other
sides case is completely anachronistic and
were correct -- is Section 288f which you can
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find at page 6a of the appendix to the blue
brief
That provision says that the
privileges exemptions and immunities of
international organizations and then of -- of
members and employees et cetera shall be
granted notwithstanding the fact that similar
privileges exemptions and immunities granted
to a foreign government et cetera et cetera
may be conditioned upon the existence of
reciprocity by that foreign government
So right there in the text it
decouples the treatment of international
organizations from the treatment of foreign
states Even in a situation in which the
United States would not grant the full range of
virtually absolute immunity because it wasnt
being -- receiving reciprocal treatment this
statute says the international organization
gets it So -shy
JUSTICE GINSBURG How do you deal
with the argument that we just heard that we
can compare 288a on the one hand which -shy
which keeps the international organizations in
tune with foreign sovereigns and 288 -- was it
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b and d
MR VERRILLI Yes I do think that
the -- the differences break down into two
categories Your Honor There -- some of the
provisions do prescribe fixed standards
Thats true But those fixed standards as we
explained in our brief or at least tried to
are always situations in which the IOIA is
conferring a narrower set of immunities on -shy
on diplomats and individuals than the common
law would have at the time
So incorporation of the standard in
the way this 288a(b) did wouldnt accomplish
the objective there because there was -- they
were quite consciously trying to narrow the
overall scope of immunities and not give the
individuals who worked at these organizations
the same full treatment that diplomats got who
-- from foreign states
Now the second subcategory are the
provisions where the -- the statute says that
their -- the treatment shall be the same But
theres two things about that that are
significant
One is it says they shall be the same
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as under another statutory provision And as
we said we think thats vitally important
here We think its quite clear that in
addition to Justice Breyers points about the
reference canon that the reference canon
applies when one statute incorporates another
It doesnt apply when one statute incorporates
the common law And here they were
incorporating statutes
And if you look at those provisions
anyway theyre basically just instructions to
the executive branch when do you fingerprint
the people when theyre coming in What do you
do about that -- this detail or that detail
They dont go to the heart of the
matter at all And the heart of the matter
here is the immunity being conferred on these
international organizations
I just want to make a point about that
and then if I could talk about the
consequences that will ensue I think if we go
down the path that my friends on the other side
are suggesting
I think this is a critical point I
just want to make sure its clear Another
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reason why you shouldnt draw this equivalence
-- and it cant be that Congress really
intended to draw an equivalence between foreign
states and international organizations such
that they would just move in tandem no matter
what -- is that immunity is granted for
different reasons
The reason you give an international
organization immunity is a functional reason
not a status reason Its not about according
the appropriate respect to the sovereigns
because international organizations arent
sovereigns Theyre separate juridical
persons And whats quite clear -- its clear
from the U -- the San Francisco report on the
foundation of the UN its clear from the
Senate report in 1945 its clear from all the
commentators that we discussed in our brief
its clear from the Restatement of Foreign
Relations which weve cited in our brief that
you grant immunity to international
organizations so that they can carry out their
functions effectively And -- and just take -shy
let me take a minute and kind of elaborate on
that because I think its critical
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Remember these are -shy
CHIEF JUSTICE ROBERTS If you dont
mind Im afraid Im about five minutes behind
you here but going -- going back to your point
on 288f you said its there theyre decoupling
the international organizations and the foreign
sovereigns But as I go back and read it
its simply because the -- the foreign
sovereigns have the capability to use
reciprocity and the foreign -- and the
multi-country organizations do not
I dont -- I mean thats the
difference theyre drawing there not something
between the scope of the actual immunities
MR VERRILLI Well I -- well the
way I read it Mr Chief Justice is what -shy
what theyre doing there is saying even in a
situation in which the United States concludes
that it wont afford a foreign sovereign the
full virtually absolute immunity because of
reciprocity in other words were not getting
it back from them even in that situation an
international organization of -- where those
sovereigns are members will still receive the
full level of immunity
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And so I think what that tells us is
that what Congress was trying to do in this
statute overall was prescribe a fixed
substantive standard not a floating standard
where the two things move in tandem So -- and
I -- I do think it supports that
And if I could just go back to the
functional point remember these are
collective bodies and members come together
they make -- they -- they take resources from
each of their own countries They put them
into these organizations They make collective
decisions about how to deploy those resources
And the point of the immunity here is
so that the courts of any country but
especially the host country which for the most
important organizations are going to be here in
the United States cant override the
collective judgments that they make about how
their resources would be deployed and what
conditions they ought to impose et cetera by
the intervention of domestic law in US courts
and cant redirect the funds that are put into
these organizations to pay massive class action
tort judgments because of course the member
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countries are contributing this money because
they believe its going to be put to the use
that the -- for example the development bank
the development bank decides it should be put
to not to pay massive tort judgments
And I think one place you see this
very clearly if you look at the report of the
San Francisco conference about the founding of
the UN the State Departments -shy
Departments response coming -- report coming
out of that conference specifically says this
It says of course the United Nations cant be
subject to the jurisdiction of any one state or
its courts
And its for exactly this reason And
the same thing is true generally Thats why
you give it not for functional reasons -- I
mean excuse me not for reasons of status but
for functional reasons
And I think a key -- another key
reason why you shouldnt be thinking about this
as a standard that evolves evolves now and
over time is that those functional reasons
dont evolve now and over time
CHIEF JUSTICE ROBERTS Well what
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about the point that most of the concerns you
have are going to be dealt with by the
requirement of a nexus to activity in the
United States as opposed to simply abroad
where the projects are funded
MR VERRILLI Yes I was gratified
to hear the United States say that but -- and
-- but I could just -- Ill answer Your Honors
question directly but I want to broaden it out
a little bit because I think what essentially
the United States is saying here is look the
statute leaves one with no choice but to apply
restrictive principles of immunity Youve got
to jump off that cliff but dont worry it
will be a soft landing because the FSIA will
take care of a lot of these problems
And I guess what I would say about
that is in the unlikely event you dont agree
with me I -shy
(Laughter)
MR VERRILLI -- I hope theyre
right But theres no guarantee that theyre
right
JUSTICE BREYER Are the -- are the
lending decisions which may be fairly detailed
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and may include dozens of conditions made
within the United States
MR VERRILLI Well yes I think
thats a big part of the problem and -shy
JUSTICE BREYER Is there -- are there
lawsuits that could say that there was
negligence in determining in a different
country who the persons were or the conditions
under which the money would be spent Is that
an American lawsuit saying what youve done
here is commit the act of negligence or failure
to be a fiduciary here
MR VERRILLI Thats this lawsuit
Thats this lawsuit Justice Breyer Thats
exactly what theyre alleging
CHIEF JUSTICE ROBERTS Well but I
mean is that consistent with our opinion in
the OBB case which I think -- if the complaint
is based the gravamen of the complaint not
specific steps along the way and that was the
issue we dealt with in that case
And I appreciate the fact that its
you know to some extent dependent on the facts
and particular allegations but it would seem
to me to require a lot more than simply the
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specific decisions I think where -- wheres
the gravamen or gravamen however you say it
with whats going on here
MR VERRILLI Well we would
certainly say its India of course
CHIEF JUSTICE ROBERTS Yeah
MR VERRILLI And if -- if we have to
defend ourselves on that basis we will But I
-- but I -- I think it -- it understates the
real concrete risk here And what Id like to
do to illustrate that if I could is first
talk about the organizations that are going to
be exposed in a way that they wouldnt be under
the law
And as Justice Breyer indicated
earlier its important to remember this has
been the law in the DC Circuit for decades
and theres -- and people have ordered their
affairs based on the assumption that there was
virtually absolute immunity
But with respect -- but with respect
to the consequences and the groups affected and
then the types of effects With respect to the
groups affected youve got entities like us
the multilateral development banks And
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Justice Breyers identified many of them
Now the -- the main ones are here
here in Washington DC and theyre making
their decisions here and I think critically
too there are billions of dollars of assets
here
Now were going to make the OBB
argument for sure and I hope we win if we have
to make the argument I hope we win But who
knows how courts are going to come out on that
issue
Were going to have a lot of fighting
about that There are probably going to be
matters of degree Theres certainly going to
be significant disincentives arising out of
that uncertainty
Theres a whole another group of
entities that unlike the banks at least have
articles of agreement where we can try and fall
back on those for alternative arguments of
immunity where their immunity depends entirely
on the statutory grant the International
Committee of the Red Cross the World Health
Organization the fund to fight -- the global
fund to fight AIDS and tuberculosis and
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malaria
They are all entirely dependent on the
IOIA for their immunities and those immunities
are drastically different after this And then
we do have the issue I think with some
organizations that we may even actually now be
out of our -- out of compliance with our treaty
commitments
Now whats going to happen Heres
what I think is going to happen and I think
this lawsuit helps you see it
Now the way -- the basis of this
lawsuit is the following IFC when it loans
money here its loaning money in -- in parts
of the world where private capital wont go
unless we go in there
And very often they have un-developed
legal systems and they certainly dont have
robust environmental protections or labor
protections So what the IFC has done is lien
into those put those kinds of environmental
standards and labor standards into its
agreements saying you want this money to do
this development project these are the
standards that youve got to live up to
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And -- and this lawsuit is that -shy
that the entity that we loan this money to
didnt live up to the standards and its our
fault And so were being sued here
Well its going to create -- if that
kind of a suit can go forward and hopefully it
wont be able to Mr Chief Justice but if it
can its certainly going to create an
extraordinary disincentive for organizations
like ours to lien into those kinds of standards
because were going to be hoist by our own
petard
Now weve also got a robust internal
accountability mechanism where if people think
something has gone wrong on one of our
projects they can come to us and they can say
-- they can say look theres a problem here
And they -- and we investigate We take
internal remedial measures if we find theres a
problem
Well you know the factual basis for
the lawsuit is the report of our internal
accountability process
So if they can just grab that and take
it into court and make it the basis for a class
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action tort lawsuit in which they can make a
claim for all this money its going to create
a powerful disincentive for us not to engage in
that kind of self-policing activity
And I would submit that you know
even if things ultimately work themselves out
under the FSIA and I hope they -- I hope we
dont have to deal with that but even if we
do its going to take a very long time There
are going to be a lot of difficult cases at the
margin There are going to be very serious
disincentives immediately
And conversely you know were a big
fat target here These organizations have lots
of money And of course foreign plaintiffs
want to sue here They can bring a class
action They get liberal discovery They can
get punitive damages They get all of these
advantages by suing here
So instead of suing the person that
actually injured them the power plant in
India they come here and sue us
And I really think what you are going
to see here is that this is just going to
become another version of the sorts of
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foreign-cubed lawsuits that the Court has been
concerned about under the Alien Tort Statute
where the international organization is just
going to be subbed in for the foreign defendant
and its going to be subbed in in a situation
where were going to have a very significant
pile of money
And if I could just close with this
thought -- Im just going to pick up on Justice
Breyers thought -- the law in the District of
Columbia where virtually all these
organizations have been housed are
headquartered has been virtually absent
immunity under DC circuit law for decades
Thats the standard everybody has been
operating on
Nobodys suggested that anything has
gone wrong under this statute that there are
any deleterious policy consequences that the
interests of the United States are adversely
affected in any way In fact if you look at
the amicus brief from the former Secretaries of
Treasury and State they think that the policy
of the government arguing now is going to
disrupt the United States ability to function
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effectively with these organizations
It has all been fine And -- but
theyre asking you essentially to repeat a
metaphor to jump off a cliff And hopefully
it will be a soft landing But we dont know
that And it could easily result in a lot of
disruption to the good work that these
organizations do
And I guess what I would suggest is
that if thats going to happen it ought to
happen through legislation Congress can look
at this Congress can change the law if it
wants to But this has been the law for a very
long time There is no evidence that it has
done anything other than work well
And therefore I think the Court
should affirm the DC Circuit Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Four minutes Mr Fisher
REBUTTAL ARGUMENT OF JEFFREY L FISHER
ON BEHALF OF THE PETITIONERS
MR FISHER Thank you Id like to
make four points and Id like to start with the
text of the statute itself and simply say when
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Mr Verrilli talks about the Neder Doctrine and
the Common Law Doctrine that you look at the
term a terms meaning at the time of
enactment Hes mixing apples and oranges
And I think all the citations in our
reply brief should make it absolutely clear
that theres a doctrine on the one hand that
talks about incorporating a body of law and
theres a doctrine on the other hand about
giving meaning to a specific term Were in
the former camp here
And as to the point about whether the
common law was evolving at the time two
things Well stand on the papers as to the
fact that it was somewhat in flux
But the more important point is even
if it werent in flux it wouldnt matter one
wit because the other side is making a
sweeping proposition which is any general
reference to common law is fixed in time
That would disrupt any number of
federal statutory regimes from the Federal
Tort Claims Act enacted the year after this
statute the Equal Access to Justice Act the
federal governments piracy statute Federal
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Rule of Evidence 501 I could go on and on
with federal statutory regimes that reference
the common law in exactly the same way the
statute does here
The Civil Rights Act of 1866 if you
want one more All of those would come out the
other way from this Courts jurisprudence and
from all the understanding if the other side is
right about statutory interpretation
So I think the only thing the other
side has is they have a bunch of policy points
to make for this Court
Now we dont think they should
control but let me answer them So first as
to our treaty obligations So one about at the
moment of enactment My friend kept saying
that there were various agreements in place
that required virtually absolute immunity
None of the agreements use those
words Instead what those agreements said is
that certain organizations were entitled to
immunity to allow them to perform their
necessary functions Thats a very different
thing than absolute immunity
And its very different because none
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of the organizations involved were performing
Justice Sotomayor commercial activities that
were essential to their core functions not the
UN not any of the other organizations
So we werent in breach of any treaty
rights And if you have any doubt on that I
would urge you to look to the federal
governments position then and now Its not
just a brief filed in this Court
It is the position that four different
Presidential Administrations have taken The
Carter Administration right after the FSIA was
passed the George H W Bush Administration
the Clinton Administration and now the Trump
Administration have all consistently held that
the FSIA rules are incorporated into the FSIA
Next on the floodgates concern I
explained earlier and I hope you will think
about the fact that while the core activities
of the IFC might be commercial activity not
all of the IFCs activities are and certainly
not all the activities of international
organizations are
But let me add one more thing My
friend talked about big lawsuits of ruinous
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liability Well theres two very easy ways to
control that
One is to the extent any claims are
on contracts they can write their own
contracts and negotiate their own contracts
As the Solicitor General points out they can
even deal with third-party beneficiaries in
their contracts if they choose
Secondly as to tort claims they can
and in fact commonly do indemnify themselves
against tort lawsuits In this very case
their agreement indemnifies them against any
judgment and all legal fees
So these organizations have every
manner of method to deal with any potential
liability And in fact they are which sort
of belies the suggestion that they think
theyre absolutely immune from lawsuit
Finally let me say one thing about
the so-called foreign cubed problem or the
facts of this case Now obviously we think
that we would satisfy the gravamen test They
have never made that argument And if they
want to make it we can -- we can have that
conversation in the lower courts
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But bear in mind what youre being
asked to do in this case is to announce a
categorical rule for all cases dealing with
international organizations
So my friend in the Solicitor
Generals Office talked about just regular tort
slip and fall cases and the like in the United
States Let me give you one other thing to
think about
Some international organizations
actually do their work in the United States
The border cooperation -- the Border
Environmental Cooperation Commission does
wastewater treatment plants in Texas and
California
I cant think of any reason why they
would be immune from those infrastructure
projects in a way that no private business or
public government would be
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1206 pm the case
was submitted)
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1 392151723 4122 4223 433
452 462 4718 4817 5220 57
allegations [1] 5624
alleging [1] 5615 B
1108 [2] 115 32 20 651824 allow [3] 2321 246 6522 back [22] 44 61420 10513 11
1206 [1] 6822 Absolutely [3] 3113 646 6718 allowed [1] 2610 17 154422 172425 1911 226
1602 [1] 1412 Access [1] 6424 allows [3] 231220 242 4425 4524 4610 4720 5247
17-1011 [1] 34 accident [1] 2615 almost [2] 719 253 22 537 5820
1866 [1] 655 accompanying [1] 4111 already [4] 311521 323 4118 backwards [4] 514 23161724
1904 [2] 614 1725 accomplish [1] 4913 alternative [1] 5820 bad [1] 1416
1934 [1] 49 according [2] 1817 5110 Altmann [1] 1318 bank [13] 719 81822 98 2716
1945 [17] 1013 142025 151213 accountability [2] 601423 amended [1] 1615 283455 3022 324 5434
15 1617 331 3522 36710 374 accumulated [1] 3514 American [3] 112 3721 5610 banks [9] 88910 271415 2911
388 3911 4216 437 5117 across [1] 1025 amicus [4] 122 27 2011 6222 3021 5725 5818
1946 [1] 3914 Act [15] 320 6319 1412 1724 20 amounts [1] 2411 bare [1] 1524
1952 [4] 3618 3921 4012 415 422 212 301518 347 5611 64 anachronistic [3] 425 4415 47 bark [2] 405 4315
1970 [6] 3919 4013 415101520 2324 655 24 barred [2] 2689
1990s [1] 1221 action [3] 5324 61117 announce [1] 682 based [5] 2518 354 386 5619
1994 [1] 115 activities [11] 8517 195 2717 another [13] 323 144 167 1923 5719
2 2910 3122 4017 662192122 2122 378 3823 501625 5420 basic [1] 3413
20 [2] 28 2622
20-some [1] 2624
2018 [1] 111
21 [1] 3421
27 [1] 3717
288 [4] 2213 331 4616 4825
288a [3] 1915 2018 4823
288a(b [4] 2024 2111 2215 49
13
288a(d [1] 2110
288b [1] 343
288d [1] 1916
288d(a [1] 2110
288f [2] 4725 525
activity [23] 791820 81015 94
69 2551718 27182325 2914
17 3010 31211 322 553 614
6620
actors [1] 2912
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actually [4] 4111 596 6121 68
11
ad [1] 4612
add [3] 1424 2510 6624
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address [4] 417 78 2423 403
adjust [2] 1212 1720
Administration [4] 66121314
5817 6125
answer [11] 71122 10191920
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APPEARANCES [1] 117
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6
apply [7] 1010 161 1919 2215
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2125
bear [1] 681
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8 6322
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better [1] 2019
3 15 2521 507 5512 between [2] 513 5214
3 [1] 24 Administrations [1] 1825 appreciate [1] 5622 beyond [2] 3712 3822
30 [1] 2622 Administrations [1] 6611 appropriate [1] 5111 big [5] 2223 3022 564 6113 66
31 [2] 111 4113 adopt [1] 4318 archives [1] 213 25
33 [1] 211 adopting [1] 47 area [2] 171618 billions [1] 585
4 adoption [1] 1610
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arent [1] 5112
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bit [2] 363 5510
blue [1] 481
45 [1] 4421 advantages [1] 6119 arguing [1] 6224 bodies [1] 539
5 5 [1] 1612
501 [1] 651
527 [1] 3420
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affairs [1] 5719
argument [24] 114 225912 34
7 5111 625 1410 1914 2010
2213 2314 337 3521 3710 46
9 4822 5889 6321 6723
arguments [2] 416 5820
body [4] 32325 425 648
border [2] 681212
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bounds [1] 1714
branch [11] 1024 1481318 151
6 affected [3] 572224 6221 arising [1] 5815 161924 398 4015 5012
63 [1] 214 affirm [1] 6317 Armed [1] 63 breach [1] 665
6a [1] 481 afford [2] 296 5219 articles [1] 5819 break [1] 493
8 afraid [2] 1625 523
Africa [1] 3023
Asia [1] 3023
Asian [1] 284
Bretten [2] 4325 441
BREYER [40] 43 513162022 6
80-some [1] 2623 African [1] 285 assets [1] 585 16 717 817 912 108 1117 12
A agencies [1] 3819
agree [3] 2018 253 5518
Assistant [1] 120
Association [1] 286
22 133 147 157 238111923
24259151821 2712 282914 am [2] 115 32
agreed [1] 294 assume [3] 1221 1711 222 301619 3147 4420 4515 467 ability [4] 12121315 6225
agreement [4] 282325 5819 67 assuming [1] 277 5524 56514 5715 able [7] 1023 2423 2513 264 32
12 assumption [2] 1223 5719 Breyers [4] 164 504 581 6210 20 458 607
agreements [5] 2821 5923 65 assurance [1] 318 brief [16] 618 115 364 377918 above-entitled [1] 113
171920 assure [3] 30619 4218 41121314 482 497 511820 abroad [1] 554
agricultural [1] 84 attenuated [1] 2523 6222 646 669 absent [1] 6213
AIDS [1] 5825 authority [7] 212425 2241114 briefs [1] 4522 absolute [33] 1922 201 22310
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Alan [1] 1624 available [3] 11810 412 broaden [1] 559 21 34117 3524 361622 383
Alien [1] 622 BUDHA [1] 13
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70Official - Subject to Review
building [1] 2613
bunch [1] 6511
Bush [1] 6613
business [2] 1414 6818
businesses [1] 4422
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C California [2] 118 6815
call [1] 412
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capital [1] 5915
captures [1] 2718
Carcieri [1] 67
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Career [1] 63
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Case [35] 34 4189 548 6236
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191 2117 2511 34182122 36
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6822122
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269 3415 4424 452020 6110
6837
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1125
Chase [1] 618
CHIEF [15] 339 20713 3349 34
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Columbia [1] 6211
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656
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541010
commentators [1] 5118
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Committee [1] 5823
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17
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Congress [36] 1023 1125 1224
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532 631112
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connection [1] 2523
consciously [1] 4915
consequences [3] 5021 5722
6219
consideration [1] 374
consistent [3] 46 1011 5617
consistently [1] 6615
construction [3] 3414 351313
contemplated [1] 195
context [1] 3317
Contoe [1] 1624
contract [1] 2612
contractor [1] 2613
contracts [4] 674558
contributing [1] 541
control [4] 1523 162 6514 672
convention [8] 38181920 3913
19 40713 417
conversation [1] 6725
conversely [1] 6113
conviction [1] 65
cooperation [2] 681213
core [4] 2910 3122 66319
CORPORATION [2] 16 35
correct [3] 136 1924 4725
correctly [2] 510 1822
couldnt [2] 2225 2923
counsel [4] 208 335 6319 6821
count [1] 2916
countries [3] 3623 5311 541
country [4] 399 531516 568
counts [1] 2914
couple [4] 241419 3114 4214
coupled [1] 315
course [9] 621 3422 352 3823
4123 5325 5412 575 6115
COURT [31] 1114 310 6824 15
1718 1824 2014 2721 3213 33
310 34131925 351715 361
131416 371 452324 6025 62
1 6316 6512 669
Courts [6] 523 1518 2520 4519
20 657
courts [9] 1423 2722 309 3218
531522 5414 5810 6725
create [4] 1121 6058 612
creates [1] 4617
Criminal [1] 63
critical [2] 5024 5125
critically [1] 584
Cross [1] 5823
crystal-clear [1] 2824
cubed [1] 6720
curiae [3] 122 28 2012
D DC [7] 1102124 2616 5717 58
3 6317
damages [1] 6118
date [1] 1723
dates [1] 613
day [1] 1817
DC [1] 6214
deal [10] 188 2021 2223 2425
3022 4025 4821 618 67715
dealing [1] 683
deals [1] 2123
dealt [3] 2819 552 5621
debates [1] 4314
decades [2] 5717 6214
decide [6] 527 913141923
decides [2] 1516 544
decision [3] 2520 342021
decisions [4] 5313 5525 571 58
4
decouples [1] 4813
decoupling [1] 525
decrease [1] 136
default [2] 126 1720
defend [1] 578
defendant [1] 624
degree [1] 5814
deleterious [1] 6219
denying [1] 315
Department [15] 121 56 917 18
25 198 2823 3525 36101214
402 4546 4611 472
Departments [2] 54910
dependent [2] 5623 592
depends [1] 5821
deploy [1] 5313
deployed [1] 5320
describe [1] 3615
described [1] 1510
describes [2] 3912 465
describing [1] 2218
designated [1] 2623
desperate [1] 443
detail [2] 501414
detailed [1] 5525
determination [2] 1415 4612
determining [1] 567
development [13] 271415 2845
56 2911 302124 5434 5725
5924
dichotomy [1] 1916
dictates [1] 3517
difference [1] 5213
differences [1] 493
different [20] 7323 97 171321
181 2111 3818 4020 4416 46
17 47811 517 567 594 6523
25 6610
difficult [1] 6110
diplomatic [2] 2222 418
diplomats [4] 4138 491018
direction [2] 3956
directly [2] 3122 559
discarded [1] 204
discovery [1] 6117
discussed [1] 5118
discusses [1] 114
discussing [1] 1917
discussion [1] 2017
disincentive [2] 609 613
disincentives [2] 5815 6112
dispute [3] 322 42 82
disputes [2] 261212
disrupt [2] 6225 6421
Heritage Reporting Corporation Sheet 2 building - disrupt
71Official - Subject to Review
disruption [1] 637
District [1] 6210
doctrine [8] 18581819 64127
9
dog [2] 405 4315
doing [5] 194 267 3625 4017 52
17
dollars [1] 585
domestic [3] 2612 3217 5322
DONALD [3] 124 210 337
done [3] 5610 5920 6315
doubt [2] 1913 666
doubts [2] 2511 264
down [5] 1722 182 1925 493 50
22
dozens [1] 561
draft [1] 203
drafting [2] 316 2119
drastically [1] 594
draw [2] 5113
drawing [1] 5213
driving [1] 2615
E each [3] 372324 5311
earlier [2] 5716 6618
easily [1] 636
easy [1] 671
effect [3] 61 364 382
effectively [2] 5123 631
effects [1] 5723
either [2] 94 156
elaborate [1] 5124
element [1] 355
eliminate [2] 259 476
ELLIS [31] 120 26 2091013 21
21 2212 23921 2447141719
23 2621 27481013 2881115
294820 3018 313613 328
employees [3] 214 2221 486
enact [1] 304
enacted [11] 1616 3225 3319 38
89 412325 42817 4621 6423
enacting [1] 4225
enactment [6] 75 17910 4410
644 6516
encourage [1] 3024
end [4] 425 358 421618
ended [1] 383
enforcement [1] 83
engage [3] 197 2724 613
enjoy [1] 58
enjoyed [2] 313 1210
enough [2] 2523 2921
ensue [1] 5021
ensured [1] 4220
enter [4] 3011212 329
entered [1] 2820
entire [1] 2021
entirely [3] 4617 5821 592
entities [3] 4423 5724 5818
entitled [3] 319 1922 6521
entity [1] 602
environmental [3] 591921 6813
Equal [1] 6424
equivalence [3] 4219 5113
equivalent [1] 424
era [2] 181819
especially [5] 324 1021 18419
5316
ESQ [6] 11824 2361013
essential [1] 663
essentially [3] 2124 5510 633
established [2] 351821
ET [5] 13 48699 5321
Even [30] 63 8816 107 1110 12
1620 1424 1816 19345 256
10 265 2714141415 361218
427 4815 521722 596 6168
6416 677
event [1] 5518
everybody [2] 4121 6215
everybodys [1] 277
everything [4] 96 1013 2534
evidence [3] 393 6314 651
evolve [4] 1620 431921 5424
evolves [2] 542222
evolving [2] 3313 6413
Ex [1] 1514
exact [2] 625 1916
exactly [8] 124 1714 237 3224
4211 5415 5615 653
example [6] 719 81 198 2412
3725 543
examples [2] 1025 3720
exception [5] 79 256 271925
349
excuse [1] 5418
executive [16] 1024 1481318
151161924 3410 398 4014
416 462025 475 5012
exemptions [2] 4848
exist [1] 194
existence [2] 4715 4810
expect [2] 4025
explained [3] 2722 497 6618
exposed [1] 5713
extent [3] 394 5623 673
extraordinary [1] 609
F face [2] 461423
fact [12] 2512 3123 393 464 47
13 487 5622 6221 6415 6619
671016
facts [3] 4418 5623 6721
factual [1] 6021
failed [1] 391
failure [1] 5611
fair [3] 366 373 4511
fairly [1] 5525
fall [4] 1911 2614 5819 687
far [4] 201719 437 458
fat [1] 6114
fault [1] 604
favor [2] 76 3112
federal [8] 1210 1823 642222
2525 652 667
fees [1] 6713
few [1] 723
fiduciary [1] 5612
fight [2] 582425
fighting [1] 5812
filed [3] 4114 473 669
Finally [1] 6719
FINANCE [2] 16 35
financial [2] 814 329
find [7] 2923 401415 4316 458
481 6019
fine [1] 632
fingerprint [1] 5012
first [10] 7123 102 1412 1610
1724 2324 351 5711 6514
FISHER [23] 118 2313 3679 5
12151721 10418 1381013 16
31321 173 4425 63202123
fisheries [1] 81
fit [2] 106 1520
five [3] 818 389 523
fixed [8] 212 2219 331216 495
6 533 6420
floating [1] 534
floodgate [1] 279
floodgates [3] 267 3116 6617
flux [6] 189 3523 361520 6415
17
focus [1] 3213
following [1] 5913
foolish [1] 1816
foreign [39] 3131819 7141518
812 97 1216 19720 219 234
9 2512 3219 3324 391622 42
2910 4320 489111425 4919
51319 52681019 6115 624
6720
foreign-cubed [1] 621
forever [1] 44
forgive [1] 1623
form [5] 1172123 1434
former [2] 6222 6411
forth [1] 4421
forward [8] 131424 142 2513
265 32314 606
foundation [1] 5116
founding [2] 620 548
Four [3] 632024 6610
Francisco [2] 5115 548
fraud [3] 342323 356
friend [6] 2016 2120 254 6516
6625 685
friends [7] 344 3920 4414 4510
468 4723 5022
front [2] 426 444
frozen [1] 2117
FSIA [10] 1411 15423 2718 297
5515 617 66121616
fulfill [3] 3320 422125
full [5] 354 4816 4918 522025
fully [1] 1023
function [1] 6225
functional [5] 519 538 541719
23
functions [3] 5123 6523 663
fund [2] 582425
funded [1] 555
funds [2] 196 5323
further [1] 332
future [1] 102
G gave [5] 517 124 349 382 4514
General [7] 120 322 113 1716
1811 6419 676
Generals [1] 686
generally [1] 5416
George [1] 6613
gets [1] 4820
getting [3] 923 148 5221
GINSBURG [5] 326 3520 4513
17 4821
Ginsburgs [1] 436
give [24] 56 61722 824 1018 11
21 1221115 131 15171920
3016 31814 3719 448 45415
4916 518 5417 688
given [10] 41 15122 175 1914
2211 3115 349 361
gives [4] 31117 812 1116
giving [1] 6410
Glad [1] 2423
global [1] 5824
gloss [1] 4413
goal [1] 1411
Gorsuch [6] 410 163142225
1813
got [9] 510 2317 289 467 4918
5513 5724 5925 6013
gotten [1] 3715
government [7] 127 318 3811
48911 6224 6819
governments [4] 92 4522 6425
668
governmental [1] 123
governments [11] 31319 812 9
1 12110 219 23410 2720 32
20
governs [1] 3511
grab [1] 6024
granddaddy [1] 4010
grant [8] 2023 2225 2313 246
4621 4816 5121 5822
granted [4] 4624 4878 516
granting [1] 4117
grants [2] 824 302
gratified [1] 556
gravamen [7] 25222425 5619
5722 6722
great [3] 188 2425 4025
gross [1] 4625
group [2] 710 5817
groups [2] 572224
guarantee [1] 5522
guess [6] 922 299 4213 4423
5517 639
H
Heritage Reporting Corporation Sheet 3 disruption - guess
72Official - Subject to Review
half [1] 2810 importing [1] 1419 11 595 56101314 591113 60122 61
hand [3] 4823 6479 impose [1] 5321 itself [7] 716 811 116 2416 372 1 6718
happen [4] 59910 631011 incentives [1] 142 4218 6325 lawsuits [5] 319 566 621 6625
hasten [1] 1424 include [1] 561 J 6711
headquarter [1] 1022 Including [1] 2711 lay [1] 1925
headquartered [4] 1022 2619 inconceivable [2] 43812 JAM [2] 13 34 lead [4] 153410 319
25 6213 incorporate [1] 3518 JEFFREY [5] 118 2313 37 63 least [4] 186 2410 497 5818
headquarters [2] 2615 292 incorporated [6] 325 72 169 33 21 leave [1] 420
Health [1] 5823 14 3423 6616 JONATHAN [3] 120 26 2010 leaves [1] 5512
hear [2] 33 557 incorporates [2] 5067 JR [2] 124 210 led [1] 449
heard [2] 4425 4822 incorporating [2] 509 648 judge [1] 1319 left [1] 2016
heart [2] 501516 incorporation [1] 4912 judgment [2] 4711 6713 legal [2] 5918 6713
heightened [1] 144 increase [1] 226 judgments [3] 531925 545 legislation [3] 813 175 6311
held [2] 309 6615 indeed [4] 427 187 203 Judiciary [2] 619 1724 legislative [1] 1119
helps [1] 5911 indemnifies [1] 6712 July [1] 388 lend [2] 423 2412
hewing [1] 3621 indemnify [1] 6710 jump [2] 5514 634 lending [8] 889101623 2719
historical [4] 393 441318 4512 India [4] 2623 575 6122 juridical [1] 5113 2910 5525
history [4] 316 1119 2119 2818 Indian [2] 47 68 jurisdiction [1] 5413 lends [1] 302
hoc [1] 4612 indicate [1] 3123 jurisprudence [2] 523 657 lens [1] 712
Hoffman [1] 1514 indicated [1] 5715 Justice [96] 121 339 4310 513 less [1] 229
hoist [1] 6011 indicators [1] 4720 162022 616 717 817 912 108 Letter [6] 361919 3921 403 437
hold [1] 3723 individualized [1] 1417 1117 121822 133591112 14 465
Honor [4] 2420 365 4024 494 individuals [3] 419 491017 67 156 1634142225 1812 20 level [3] 3719 387 5225
Honors [1] 558 infer [2] 351616 713 2121 238111923 24259 liability [2] 67116
hope [6] 5521 5889 6177 6618 infrastructure [1] 6817 151821 2617 272691111 28 liberal [1] 6117
hopefully [2] 606 634 initial [1] 4022 2914 2938 301619 3147 32 lien [2] 5920 6010
hornbook [1] 1010 injured [1] 6121 6 33410 34524 3520 3612 40 light [1] 3317
hornbooks [1] 43 injuries [1] 262 1619 42715 4356 4420 4513 limited [1] 1224
host [3] 2025 217 5316 inquiry [1] 358 1517 467 4721 4821 504 522 list [1] 3020
housed [1] 6212 insertion [1] 69 16 5425 5524 5651416 576 little [2] 102 5510
however [1] 572 instance [1] 2220 15 581 607 629 6318 6424 66 live [2] 5925 603
I instead [2] 6120 6520
institutions [2] 81823
2 6820
K loan [3] 820 2924 602
loaning [1] 5914 idea [4] 14816 1618 2618
identified [1] 581
IFC [10] 710 8111919 256 283
323 591320 6620
IFCs [2] 3120 6621
II [1] 446
illustrate [1] 5711
IMF [6] 283 302 37202525 388
immediately [2] 407 6112
immune [4] 215 252 6718 6817
immunities [19] 2025 2216 234
instructions [1] 5011
intended [2] 347 513
Inter-American [1] 284
interest [1] 1114
interests [1] 6220
interfere [1] 3110
internal [3] 60131922
INTERNATIONAL [37] 16 3511
17 422 72224 824 1025 1421
1921 2221 232 251 286 3222
3323 4010 421 4621 477 485
KAGAN [6] 2121 2938 42715
435
keeps [1] 4824
kept [1] 6516
key [2] 542020
kind [5] 825 453 5124 606 614
kinds [5] 716 2618 3820 5921
6010
knowing [1] 101
knows [2] 198 5810
loans [5] 2912131822 5913
lobby [1] 1023
locate [1] 1014
lock [1] 175
long [5] 45 1011 1322 619 63
14
look [32] 61315 724 911 108 13
18 168121416 1713 2021 21
19 2311 2817 311920 351 37
10 4111 4412 45119 4623 50
10 547 5511 6017 6221 6311 3815172121 391213 4118 131924 5018 51481221 526 L 642 667 4622 4848 49916 5214 5933 23 5822 623 6622 68410 labor [2] 591922 looked [4] 44 158 3020 4524
immunity [119] 312171820 419 Interpol [1] 83 landing [2] 5515 635 looking [2] 3523 212425 559 9152125 1024 interpret [1] 1017 language [8] 1017 1518 202 21 looks [3] 3618 3812 4313 11672123 1229911161925 interpretation [2] 3415 659 13 343 359 421215 lot [10] 2017 221 2814 319 446 13120 145141721 15219 16 interpreted [1] 343 last [1] 49 5516 5625 5812 6110 636 1 191922 20124 213925 223 interpreting [2] 619 359 late [1] 4120 lots [2] 420 6114 991922 2337131415 2436 intervention [1] 5322 later [3] 4916 3810 lower [3] 2722 309 6725 101125 259 26510 28152025
297 3025 3121 3251521 33 investigate [1] 6018
inviolable [1] 213
latter [1] 1717
Laughter [4] 172 2318 241 55 M
121522 3411117 3523 36110 involved [2] 149 661 20 made [10] 53 1223 1415 18910
15172224 37121319 3847 39 IOIA [21] 31115 11816 2023 22 law [46] 32425 61121 714 82 3924 469 4710 561 6723
215161722 411822 4223 434 17 2624 331120 3718 3869 1056 131516 1419 151212 mail [1] 3422
920 448 4525 463 47618 48 22 391 411921 4314 4410 46 15 1620 17151618 18567 21 main [1] 582
17 5017 516921 522025 53 18 498 593 14 3314 3515 3619 383 439 malaria [1] 591
14 5513 5720 582121 6214 65 ISMAIL [1] 13 20 4524 462 479 4911 508 53 managing [1] 81
182224 isnt [6] 1618 2513 31910 3711 22 571417 621014 631213 64 manner [1] 6715
important [5] 1324 502 5317 57 4419 281320 653 many [9] 413181818 725 1025
16 6416 isolation [1] 2020 laws [1] 306 2618 322 581
importantly [1] 257 issue [6] 1219 211116 5621 58 lawsuit [14] 1223 15225 4723 margin [1] 6111
Heritage Reporting Corporation Sheet 4 half - margin
73Official - Subject to Review
market [2] 820 2918
massive [2] 5324 545
match [1] 4418
materiality [2] 3423 355
materials [4] 372 426 4413 45
12
matter [7] 113 1716 466 5016
16 515 6417
matters [1] 5814
mean [14] 4111213 64 914 248
251 371 4211 451819 5212
5418 5617
meaning [7] 179 3315 351518
22 64310
means [4] 524 3517 421620
meant [3] 64 223 2910
measure [1] 126
measures [1] 6019
mechanism [2] 4617 6014
member [1] 5325
members [3] 486 5224 539
mentioned [2] 1813 417
mess [1] 453
metaphor [1] 634
metes [1] 1714
method [1] 6715
might [2] 718 6620
mind [2] 523 681
minimum [1] 1524
minute [2] 3722 5124
minutes [2] 523 6320
mission [1] 444
mistake [1] 53
Mister [1] 293
mixed [1] 923
mixing [1] 644
modern [1] 1817
moment [5] 4115 105 3921 65
16
monetary [1] 411
money [14] 41223 820 2413 30
7 541 569 59141423 602 612
15 627
months [1] 389
morning [2] 2017 3116
most [6] 232 257 3316 4722 53
16 551
move [3] 3611 515 535
moving [1] 3623
much [5] 141 2517 3112 395 40
21
multi-country [1] 5211
multilateral [1] 5725
multinational [1] 2911
must [4] 251718 351616
N Nader [2] 341921
narrow [1] 4915
narrower [1] 499
nations [4] 418 397 4011 5412
natural [1] 354
nature [2] 123 2924
necessary [4] 1720 3510 3912
6523
Neder [1] 641
need [7] 1116 306 3124 3268
3712 4318
needed [2] 291 3823
negligence [2] 56711
negotiate [4] 1214 143 2825 67
5
negotiated [3] 115 1220 3914
never [1] 6723
New [1] 2616
next [2] 34 6617
nexus [2] 2517 553
nobody [2] 59 925
Nobodys [1] 6217
non-commercial [1] 85
none [3] 4411 651925
normal [1] 3414
nothing [3] 101 2411 404
notwithstanding [1] 487
Number [6] 242424 2713 3115
4424 6421
numbers [1] 2621
O OAS [4] 113 1221 282224
OBB [3] 2520 5618 587
objective [1] 4914
obligations [5] 332022 409 41
24 6515
obvious [1] 4624
obviously [2] 4710 6721
occurred [2] 2622
occurs [1] 2519
October [1] 111
Office [1] 686
officers [2] 214 2220
official [1] 215
officials [2] 192021
often [1] 5917
Okay [5] 512 2323 24518 467
old [1] 187
once [2] 4315 4620
one [47] 41823 5118 6217 819
1317 14369 1622 173 1868
1113 191218 211116 2424 25
10 273 3013 3118 3618 3812
4014 4313 4722 4823 4925 50
67 54613 5512 6015 64717
65615 6624 67319 688
ones [1] 329
one-way [1] 225
ones [1] 582
only [8] 423 62 2116 225 2810
296 417 6510
open [1] 3117
opening [1] 267
operating [1] 6216
opinion [4] 69 1624 3424 5617
opponents [2] 321 61
opportunity [1] 143
opposed [1] 554
opposite [3] 417 1345
oral [7] 114 2259 37 2010 337
oranges [1] 644
order [6] 292 306 3823 4620 47
15
ordered [1] 5718
Ordinarily [1] 296
ordinary [2] 610 117
Organization [16] 1124 1421 19
321 372021 4020 4118 4622
477 4819 519 5223 5824 623
organizations [1] 2614
organizations [56] 31218 422 7
2225 824 101421 1111422
214 2221 232 2518 261923
281319 3120 3222 3323 3711
4010 4219 4427 4851424 49
17 5018 5141222 52611 53
121724 5712 596 609 6114
6212 6318 6521 661423 67
14 68410
original [2] 1118 203
originally [1] 1616
other [41] 421 6225 77 8621
23 95 13125 141019 1715 18
21 1924 2113 224 23312 24
16 2912 3212 3446 3622 39
20 441114 4511 469 4723 50
22 5221 6315 64918 657810
664 688
others [2] 1221 324
otherwise [2] 3517 408
ought [5] 813 161 3624 5321
6310
ourselves [1] 578
out [19] 6810 1413 2416 2813
4089 4325 449 5122 5411 55
9 581015 5977 616 656 676
over [7] 1620 3024 3525 4319
21 542324
overall [2] 4916 533
override [1] 5318
own [10] 615 12131317 1518
2815 5311 6011 6745
P pm [1] 6822
package [1] 411
PAGE [5] 22 3420 3717 4113
481
papers [1] 6414
part [5] 1219 1411 2122 4322
564
Parte [1] 1514
particular [6] 916 178 341820
362 5624
particularly [1] 2118
partly [1] 1120
parts [1] 5914
party [5] 2724 2923 3011113
passage [2] 416 4314
passed [5] 525 813 1316 452
6613
past [3] 41215 92
path [1] 5022
pathway [1] 156
pathways [3] 119 1721 181
pay [2] 5324 545
people [4] 369 5013 5718 6014
percentage [1] 2812
perfect [1] 183
perform [1] 6522
performing [1] 661
perhaps [1] 3110
permissible [2] 623 1321
person [3] 2320 4316 6120
persons [2] 5114 568
pertinent [1] 1618
Peru [1] 1514
petard [1] 6012
Petitioners [10] 141923 24814
38 201219 6322
phrase [1] 2020
pick [4] 164 2015 376 629
picks [1] 281
pile [1] 627
piracy [1] 6425
place [3] 4712 546 6517
plain [2] 314 1913
plaintiff [1] 311
plaintiffs [1] 6115
plant [1] 6121
plants [1] 6814
please [3] 310 2014 3310
point [17] 1718 281222 297 34
19 35111 377 4023 501924
524 53814 551 641216
points [8] 166 3115 3945 504
6324 6511 676
policies [1] 142
policy [9] 1079151516 1418
621923 6511
political [1] 1418
politically [1] 1423
position [5] 1525 1822 4610 66
810
possibly [2] 38510
potential [1] 6715
power [2] 249 6121
powerful [1] 613
practical [2] 101920
practice [1] 296
precisely [1] 3718
prescribe [2] 495 533
prescribed [1] 4716
prescribes [1] 3311
present [1] 324
presented [1] 2515
President [9] 55 1225 136 225
24 2313 243 3410 4619
Presidents [3] 1212 2214 475
presidential [4] 2123 22411 66
11
pressure [1] 446
presumptively [1] 252
presupposes [1] 4714
pretty [1] 3022
principal [1] 1113
principle [1] 614
principles [1] 5513
Heritage Reporting Corporation Sheet 5 market - principles
74Official - Subject to Review
prior [1] 65 10 394 441225 4722 512 61 397 4510 5111 57212123 seen [1] 1520
private [12] 81421 2724 2912 23 respectfully [3] 366 373 4510 self-policing [1] 614
182223 3011113 5915 6818 reams [1] 61 Respondent [4] 1725 211 338 Senate [6] 123 41111516 4224
privileges [4] 233 4622 4848 reason [17] 109 1891012 1910 Respondents [1] 269 5117
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organizations
Take the Organization of American
States OAS And the solicitor general
discusses this in -- the organization in its
brief In 1994 it negotiated a special
immunity provision for itself to get more than
the ordinary restrictive form of immunity that
was available under the IOIA
So there are -- there are pathways
available and they have been used even more
so
Remember the United States as you
say has a -- has a sometimes principal
interest in these organizations So it is
quite responsive to them when they come and
say We need more than the IOIA gives us
But Justice Breyer let me turn back
to the -- the original purpose which was the
legislative history is quite clear on what the
purpose was As you say this was partly to
create a form of immunity to give some comfort
to these organizations But the question is
what form of immunity did they ask for and what
did they get
What they did is they came to Congress
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and said treat us like foreign governments
Give us immunity as Congress put it in a
Senate report of a governmental nature And
so what did Congress do It gave them exactly
what they asked for It said were going to
treat you as a default measure like a foreign
government
And remember the words of the
statute are same immunity Same immunity
as is enjoyed by federal governments So were
going to give you the same immunity subject to
the Presidents ability to just -- adjust it
and subject to your own ability and your own
treaty to negotiate for more and subject
thirdly to Congresss ability to give you some
immunity that you dont have even by way of
your own treaty
JUSTICE SOTOMAYOR Can we go to that
issue raised in part The special immunity I
know was even negotiated by the UN I think
in the 1990s and OAS and others but assume
that were in your regiment and Justice Breyer
made the assumption that if a lawsuit came to
us now under your theory and it was limited
immunity that the President or Congress could
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give immunity to the other side
I dont think so
JUSTICE BREYER No its the
opposite
JUSTICE SOTOMAYOR The opposite The
President cant decrease it correct So that
problem still remains with your -shy
MR FISHER Well -shy
JUSTICE SOTOMAYOR Yeah
MR FISHER -- I think it -- it may
or may not remain Justice Sotomayor
JUSTICE SOTOMAYOR Thats my -shy
MR FISHER Certainly we could -- we
would say we can go forward on this suit
because -- because there is no such law
If that law were passed youd have
two questions One is did Congress make it
retroactive And you look to Altmann to think
about how to judge the retroactivity of
immunity provisions And then if it were
retroactive whether that were permissible
But you know were a long way from
-- from that sort of a situation I think the
important thing going forward and this is I
think what the concern is on the other side
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is not so much about this case but about
incentives and policies going forward they
have every opportunity to negotiate in one form
or another or to procure a heightened form of
immunity
And Justice Sotomayor let me say one
more thing to you and Justice Breyer about you
know the idea of the executive branch getting
involved This is one of the problems I
submit with the other sides argument
Remember part of the goal of the FSIA
in the first section of the Act in Section 1602
is to get -- is to get the executive branch out
of the immunity business
Congress made the determination that
it was a bad idea to have every case turning on
individualized suggestions of immunity and
executive branch political policy And so the
other side by importing the common law of
1945 would reintroduce that problem into
international organization immunity in a way
that we dont think would be very good
politically or very workable in the courts
And Id hasten to add that even under
the rule of 1945 if the question were what
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does the executive branch think about any given
lawsuit or any given immunity for any given
type of suit that would just lead you right
back to the FSIA and it would lead you back to
the same conclusion that we submit to you here
So either pathway whether Justice
Breyer you start with the way youve always
looked at cases with the word is and the
word same and the reference canon that Ive
described and say all of those things lead you
to a time of suit rule or if you start with
the law of 1945 and say what was the law in
1945
Well Hoffman and -- in Ex Parte Peru
were clear that the law of 1945 was the
executive branch decides and its not for the
Court -- this is -- Im going to give you the
Courts own language -- its not for the Court
to give immunity where the executive branch has
not seen fit to give it
And if that were the test youd come
right back to where you -- where I started
here which is that the FSIA would control or
at the bare minimum the executive branch
position in this lawsuit on the type of
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immunity that ought to apply in this situation
would control So -shy
JUSTICE GORSUCH Mr Fisher if I can
pick up on Justice Breyers question The
reference canon I take all -- all of your
points but sometimes lets say we have a
statute that -- that refers to another statute
Usually we would look at the second
statute thats being incorporated as of the
time of -- of the adoption of the first
statute Right So if -- if this statute were
to say go look at Section 5 -shy
MR FISHER Right
JUSTICE GORSUCH -- we wouldnt look
at it the way its been subsequently amended
Wed look at it as it was originally enacted in
1945
Why isnt that -- that idea pertinent
here you know when we refer to a specific
law we dont take it to evolve over time
MR FISHER So for two reasons
Justice Gorsuch and one of them if youll
forgive me is going to be something you said
in the Alan Contoe opinion
JUSTICE GORSUCH I was afraid of
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that
(Laughter)
MR FISHER But for two reasons One
is Congress has a choice to make when it writes
legislation It can lock in a given rule by
setting a specific statutory provision and says
thats the rule we want just like if Congress
uses a particular word at the time of the
enactment the meaning of that word at the time
of enactment would be what Congress -- wed
assume Congress wanted
Or Congress could do something
different which is to say look were not
sure exactly of the metes and bounds of the
law Were just going to tie it to this other
area of law as a general matter And thats
what Congress did here It did the latter
So it took an area of law as a point
of reference and said Just use that as the
default rule and then adjust as necessary And
those are just two different pathways Congress
can go down
And they date as I said all the way
back to the First Judiciary Act there in the
Sutherland treatise all the way back to 1904
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and so theres just two different pathways
Congress can go down
And it makes perfect sense I think
in a situation like this especially where you
have a common law doctrine being referenced at
least a common law at the time and one that
was indeed not just any old common law
doctrine but one that was in a great deal of
flux at the time So it made every reason -shy
it made every good reason for Congress to have
a general reference not a specific one
And then the second reason Justice
Gorsuch is the one you mentioned sitting on
the Tenth Circuit which is that as time goes
by it becomes all the more stilted or
antiquated or even foolish sometimes to try to
answer questions in the modern day according to
what some bygone era doctrine would have
required and especially a bygone era doctrine
like this
If I understand the other sides
position correctly basically the question
theyre having -- they would want every federal
court to ask in these cases is what would the
Truman Administrations State Department have
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wanted to do in this case
And when you have things like this
which didnt even -- an organization that
didnt even exist at the time sometimes doing
activities that werent even contemplated at
the time things like sovereign wealth funds
which foreign sovereigns now engage in for
example who knows what the State Department
would have thought then
I think theres every reason then to
fall back on the reference canon And if I can
say one more thing before reserving my time if
you have any doubt about just the plain text
argument Ive given you I would urge you to
compare the text in Section 288a to the text -shy
Section 288d which has the exact dichotomy
that -- that Ive been discussing today
One subsection subsection (a) says
that the same immunity rules apply and
subsection (b) says that foreign officials -shy
Im sorry international organization officials
are entitled to absolute immunity
So this is yet another reason why if
the other side were correct and if Congress had
wanted to lay down the rule they did why would
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they not have just used the absolute immunity
language in subsection (b) of subsection (d)
and that indeed was the original draft of
this act that was discarded
So I could go on but Id rather save
the rest of my time for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Ellis
ORAL ARGUMENT OF JONATHAN ELLIS FOR
THE UNITED STATES AS AMICUS
CURIAE SUPPORTING THE PETITIONERS
MR ELLIS Mr Chief Justice and may
it please the Court
If I could Id just like to pick up
right where my friend left off Theres been a
lot of discussion so far this morning on the
text of Section 288a We agree that the
Petitioners have the far better reading of that
phrase in isolation but I think it really
settles the deal when you look at the entire
structure of the Act
The -- the IOIA doesnt just grant
immunity in Section 288a(b) but it provides a
whole host of immunities and it does it in two
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different ways In several different
provisions the Act sets a fixed rule of
immunity So archives are inviolable and
officers and employees of the organizations are
immune from suit with respect to their official
acts
And then there are a -- a host a
collection of three provisions that set the
immunity by reference to foreign governments
Theyre Section 288a(d) Section 288d(a) and
theres Section 288a(b) the one at issue here
Respondents concede that the
referential language in those other two
provisions do refer to the state of the law as
it is today
Its only the one thats at issue in
this case that they say was frozen We dont
see how that can be and thats particularly
true when you look at the drafting history that
my friend referred to
JUSTICE KAGAN Mr Ellis before you
get to that another part of the structure is
this provision that deals with presidential
authority and thats essentially a roll-back
authority of immunity
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Doesnt that make a lot more sense
that provision if you assume that Congress
meant for there to be absolute immunity In
other words the presidential authority is a
one-way ratchet The President can only under
this provision roll it back It cant increase
it
So to me if I -- if -- if -- if -shy
if the immunity -- if the immunity is less than
absolute you would think that they would have
given the presidential authority both ways
MR ELLIS Sure The reason that
argument doesnt work is because Section 288
the Presidents authority under that provision
doesnt just apply to Section 288a(b) It
applies to all of the immunities provided by
the IOIA
And as I was just describing some of
those are fixed immunity rules that are not
absolute And so for instance the officers
and employees of international organizations do
not receive diplomatic immunity That was a
big deal at the time
And -- and yet the President cant -shy
couldnt grant that up I think what that
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provision shows is that Congress wanted to
provide international organizations at most the
immunity from suit and other privileges of
immunities that foreign governments received
and not more so
And yet Respondents are here today
asking you for exactly that more immunity -shy
JUSTICE BREYER But on that -shy
MR ELLIS -- than foreign
governments receive
JUSTICE BREYER But look whatever
other things it refers to the provision allows
the President to waive immunity not to grant
immunity And your argument is they have
immunity Right
Do I have -- I get this backwards
This is the third time Ive got it backwards
(Laughter)
JUSTICE BREYER Sorry The provision
allows the person to be sued Is that right
MR ELLIS It does allow them to be
sued
JUSTICE BREYER Okay So I was
right I had it backwards the first time but
not the second not the third all right
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(Laughter)
JUSTICE BREYER It allows the
President to waive the immunity
MR ELLIS Thats right
JUSTICE BREYER Okay It doesnt
allow him to grant the immunity
MR ELLIS It does in a sense I
mean -shy
JUSTICE BREYER But the power to
waive the immunity at least in this section
amounts to nothing if they have no immunity
because for example all they do is lend
money
MR ELLIS So -- so a couple -shy
JUSTICE BREYER Thats -- thats -shy
and the other way it seems to work itself out
MR ELLIS Understood
JUSTICE BREYER Okay
MR ELLIS A couple responses to
that Your Honor
JUSTICE BREYER Thats the question
I think
MR ELLIS Glad to be able to address
that Number -- number one just to be clear
we -- they do have a great deal of immunity I
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mean foreign -- international organizations
and foreign states are presumptively immune
And I would agree with almost everything
that -- maybe everything that -- that my friend
said about why the commercial activity
exception even with regard to IFC and -- and
most -- more importantly with regard to the
vast sweep of these organizations is not going
to eliminate immunity
I would add one more is that even a
case like this we have serious doubts I
think -- we think in fact from what we know
this suit isnt going to be able to go forward
regardless of the answer to the question
presented because in addition to having -- to
being connected in some way to commercial
activity there must be a much stronger nexus
It must be based on commercial activity that
occurs in the United States
We think the Courts decision in OBB
makes clear that the way you apply that is to
ask Whats the gravamen of this suit Its
not enough to have some attenuated connection
but whats the gravamen
And the gravamen of this suit as we
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understand it is -- is tortious conduct that
occurred in India injuries that occurred in
India And we dont think -- we have serious
doubts that this is going to be able to go
forward even under restrictive immunity
And so we do not think that what were
doing is opening the floodgates here rather
that the sort of concerns that would be barred
-- cases that would be barred by Respondents
absolute rule of immunity and would be allowed
by ours are -- are sort of quintessential
domestic disputes contract disputes with your
contractor who renovated the building the slip
and fall at the -- at the organizations
headquarters or the driving accident on the
streets of New York and DC
JUSTICE SOTOMAYOR Do you have -- do
you have any idea about how many of these kinds
of organizations are headquartered in the
United States
MR ELLIS I think the numbers are in
the 20 to 30 range Theres about -- somewhere
80-some organizations that have been designated
for protection under IOIA and 20-some that have
-- I think are headquartered in the United
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States
JUSTICE SOTOMAYOR That are
commercial like this one
MR ELLIS No no no No I did
not -- no
JUSTICE SOTOMAYOR Were -shy
everybodys assuming -shy
MR ELLIS Right
JUSTICE SOTOMAYOR -- a floodgate
MR ELLIS Sure no There are -shy
JUSTICE SOTOMAYOR Including Justice
Breyer
MR ELLIS -- there are a number of
development banks but even then even -- even
the development banks even if you talk about
the World Bank its not clear that those
commercial activities are the sorts that the -shy
the FSIA captures with the commercial activity
exception Lending there is to sovereign
governments
And -- and as the Court has been -- as
lower courts have explained that sort of
commercial activity is not the sort that a
private party could engage in So its not the
sort that the commercial activity exception
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picks up
JUSTICE BREYER Well I -- I have the
IFC the IMF the World Bank the
Inter-American Development Bank the Asian
Development Bank the African Development Bank
the International Development Association So
I -shy
MR ELLIS Sure I -shy
JUSTICE BREYER -- Ive got -- thats
only half of them
MR ELLIS Thats -- that -- Im not
sure what percentage that is I want to point
out that some of those organizations -shy
JUSTICE BREYER There are a lot
MR ELLIS -- have their own immunity
provision in the -- in their charter And so
thats what we think -- if you look at the
history thats what -- thats how it has been
dealt with for organizations that require
absolute immunity Weve entered into
agreements
I would point again to the OAS
agreement where the State Department is just
crystal-clear that what OAS did in that
agreement was to negotiate absolute immunity
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because they thought thats what they needed in
order to put their headquarters here
JUSTICE KAGAN But Mister -shy
MR ELLIS We agreed to that and we
said But hey this is not our usual
practice Ordinarily we -- we afford only
restrictive immunity We point to the FSIA
JUSTICE KAGAN Mr Ellis I -- I
guess Im not sure I -- I quite understood what
you meant As to the core lending activities
of these multinational development banks in
other words making loans where private actors
would not make loans do you have a view as to
whether that counts as a commercial activity or
not
Did you say that that would not count
as a commercial activity because theyre making
loans that the -- that the private market would
not make
MR ELLIS No Im -- Im not saying
that its -- that its enough that theyre
making loans that a -- that a private -- they
couldnt find a private party to provide Im
saying if the nature of the loan is such that
its -- its not the sort of transaction that a
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private party would enter into so think about
the IMF that grants -- that lends to sovereigns
and they do so on the requirement that the
sovereign enact certain restrictions -shy
regulations and change their -- their -- their
laws in order to assure that they dont need
the money again
That is the sort of thing thats been
held by lower courts and weve advocated is
not a commercial activity Thats just not the
sort of transaction that a private party can
enter -- enter into Its not just that a
private party didnt Its that -- that no one
-- thats not something that you can do
Thats a sovereign act
JUSTICE BREYER But can you give
me -shy
MR ELLIS Or a quasi-sovereign act
JUSTICE BREYER -- anything to assure
me because when I looked through this list I
thought that there were development banks like
the World Bank which is a pretty big deal as
well as in Asia in Africa were trying to
encourage development all over the world and
suddenly by removing the sovereign immunity
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because the plaintiff will claim this is a
commercial activity
MR ELLIS So -- so -shy
JUSTICE BREYER And youre not
denying it
MR ELLIS And so -shy
JUSTICE BREYER So what is the
assurance that the government can give us that
this isnt going to lead to a lot of lawsuits
and this isnt going to interfere with perhaps
activity that the United States traditionally
has been very much in favor of
MR ELLIS Absolutely Let me -- let
me give you a couple things I think weve
given you a number of -- of points already this
morning as to why we dont think the floodgates
are going to open
If -- if theres one more Ill say
just look at the -- the charter of these
organizations Look at the IFCs charter
They already waive suit waive immunity for
suits going directly to their core activities
They -- they in fact indicate that they -shy
they need to waive suit in these suits
And so I -- I think when youre
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talking about what are the suits that are going
to come up under commercial activity many of
them are already going forward because the IFC
and the World Bank and others have waived their
immunity
JUSTICE GINSBURG And they need to
because
MR ELLIS They need to because no
ones going to enter into a financial
transaction with them if they -- they know they
cant sue if it -- if it goes south
The other thing -- I want to also
focus the Court on the -- on the suits that we
know are not going to go forward on the
absolute immunity side Were talking about
suits by -- by US citizens and residents
about domestic conduct and theyre seeking
redress in US courts
These are the suits that foreign
governments are -- are able to be sued on and
dont have immunity And we dont see any
reason why international organizations should
not also be subject to suit in those
circumstances and we think thats exactly what
the Congress was trying to do when it enacted
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Section 288 in 1945
If there are no -- no further
questions we ask the Court to reverse
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Verrilli
ORAL ARGUMENT OF DONALD B VERRILLI
ON BEHALF OF THE RESPONDENT
MR VERRILLI Thank you Mr Chief
Justice and may it please the Court
The IOIA prescribes a standard of
virtual absolute immunity that is fixed and not
evolving We know that because the text
incorporated common law terms that had a
settled meaning of virtually absolute immunity
and because a fixed standard makes the most
sense in light of the statutory context and
purpose
Now the reason that Congress enacted
the IOIA was to fulfill treaty obligations that
committed us to provide virtually absolute
immunity Those treaty obligations did not
commit us to treat international organizations
the same as foreign states were treated They
committed us to the substantive standard of
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virtually absolute immunity
And therefore if -- if -- if the
language in section 288b is interpreted in the
way my friends on the other side suggest -shy
JUSTICE SOTOMAYOR So why didnt
Congress say that the way it did in the other
provisions of this Act And if it intended
that in no change it could have said it and
given the very exception it gave which is that
the President or the executive could reduce
immunity which was the standard at the time
MR VERRILLI So let me start with
the basic question We think if the Court
applies the normal rules of construction that
it applies in statutory interpretation cases
that Congress did say that it was providing
virtually absolute immunity
And I think a case in particular that
I would point the Court to is the Nader
decision 527 US and in particular to page
21 of the Nader decision Thats a case -shy
that case of course was about whether mail
fraud and wire fraud incorporated a materiality
standard This is an opinion by Chief Justice
Rehnquist unanimous for the Court on this
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point The Court said first we look to the
text of course and when looking to the text
if we -- if -- and in looking to the text
based solely on a natural reading of the full
text materiality wouldnt be an element of the
fraud statute
And then the Court says But that
does not end the inquiry because in
interpreting statutory language theres a
necessary second step And this is -- Im
coming to the point that I think governs here
which is that it is a well-established rule of
construction a rule of construction that
where Congress uses terms that have accumulated
settled meaning under the common law a court
must infer must infer unless the statute
dictates otherwise that Congress means to
incorporate the established meaning of those
terms Now the -shy
JUSTICE GINSBURG What about the
argument that there wasnt an established
meaning in -- what was it -- 1945 that it -shy
the -- the status of the immunity was in flux
It had been absolute but then we were going
over -- the State Department was advising the
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court whether immunity should be given in a
particular case
MR VERRILLI Theres a bit of a
suggestion to that effect in the brief of the
United States Your Honor but I would
respectfully suggest that is not a fair
characterization of where things stood in 1945
at all
It is true that some people within the
State Department in 1945 thought that immunity
should move to a more restrictive standard but
the Justice Department would not even advance
that standard in this Court at the request of
the State Department and this Court did not
describe the immunity as being in flux This
Court said the standard was virtually absolute
immunity
If one looks even in 1952 at the Tate
Letter the Tate Letter didnt say the law was
in flux in the United States It said the
United States was hewing to the standard of
virtually absolute immunity but other
countries were moving towards a standard of
restrictive immunity and therefore we ought
to reconsider what were doing
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So I just -- I mean the Court can
read these materials for -- for itself but I
just respectfully do not think its a fair
consideration of where things stood in 1945 at
all
And then if I could Id like to pick
up on a related point that came up in the brief
of the United States Its another statement
in the brief of the United States and it came
up in argument today that look this really
isnt a problem because for those organizations
that need immunity that goes beyond the -- the
restrictive immunity weve always understood
that they get -- they can go get a special
statute and theyve gone and gotten special
statutes
The United States says on page 27 of
its brief precisely because the IOIA didnt
provide that level of immunity they give these
three examples IMF World Trade Organization
and Organization of American States
Id like to take a minute and go
through each of them because it doesnt hold up
with respect to each of them With respect to
the IMF for example it is true the IMF you
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know it has a -- has a treaty There was a
statute that gave that treaty effect under US
law which ended up providing for absolute
immunity
But it cant possibly be that that was
undertaken based on any sense that the IOIA
didnt provide that level of immunity because
the IMF statute was enacted in July of 1945
and the IOIA wasnt enacted until five months
later So it cant possibly substantiate what
the government was saying
If one looks at the WTO treaty it is
true with respect to that treaty that it
committed us to a very wide scope of
immunities It said that the United -- that
the United States will commit to providing all
or virtually all of the immunities provided
under a whole different UN convention the
UN convention on specialized agencies
Now that convention has all kinds of
tax immunities and property immunities that go
way beyond what the IOIA provides So of
course they needed another statute in order to
make those treaty commitments That doesnt
prove anything about whether anybody thought
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that the IOIA failed to provide virtually
absolute immunity
In fact the historical evidence I
think really to the extent it points in any
direction it points very much more in our
direction And the best way to see that is
with respect to the way the United Nations was
treated under -- by the executive branch in
this country
Now we signed the UN charter in
1945 committed us to provide what the charter
describes as the necessary immunities Then
the UN Convention on Immunities was
negotiated in 1946 which said that the UN
should get virtually absolute immunity Not
the same immunity as foreign states virtually
absolute immunity
Now the United States did not ratify
that convention until 1970 So on the theory
that my friends on the other side have from
the moment of the Tate Letter in 1952 when
foreign state immunity became restrictive and
not virtually absolute anymore we were in
violation of the commitment we made in the UN
charter
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Now if that was true you would
certainly expect the State Department A to
address it in the Tate Letter but theres
nothing in there Its a classic case of the
dog that didnt bark And B you would expect
them to try to do something about it like get
the UN Convention ratified immediately
because otherwise we were going to be out of -shy
out of compliance with our obligations to the
granddaddy of all international organizations
the United Nations
But theres not a -- from 1952 until
the ratification of the Convention in 1970 you
cant find one word by anybody in the executive
branch ever saying that What you do find -shy
JUSTICE SOTOMAYOR What commercial
activities was the UN doing at that time
MR VERRILLI Well -shy
JUSTICE SOTOMAYOR I know today its
a very different organization but its not
clear to me that there was much going on that
was commercial at its initial stages
MR VERRILLI I take that point Your
Honor but what I would say in response is that
there was a very great deal of sensitivity
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about the whole package of -- of immunities
that were available to the UN and its
diplomats and its -- and its workers
And there was concern all along from
1952 to 1970 that -- that -- where the
executive was urging Congress to ratify the
convention but the only things ever mentioned
were the diplomats -- immunities for diplomatic
individuals
And then when you get to 1970 and you
actually look at the Senate report accompanying
the ratification this was not in our brief
but its at page 31 of the brief of the -- of
the scholars who filed the brief in support of
us It quotes the Senate report from 1970 and
what the Senate report says is were not
granting the UN any -- the UN as an
organization any immunity it didnt already
have under the IOIA
So as late as 1970 it was just quite
clear that everybody understood the IOIA
conferred virtually absolute immunity And of
course thats because it was -- it was enacted
to comply with our treaty obligations
It wasnt enacted to make sure that
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come what may that international organizations
would get treated the same as foreign states
That is -- you know thats the best way to
think about it is its just a completely
anachronistic way of thinking about the body of
materials in front of you
JUSTICE KAGAN But even what you just
said Mr Verrilli it wasnt enacted to make
sure that foreign organizations would get
treated the same as foreign states
I mean thats exactly what the
language of the thing says
MR VERRILLI Well so I guess a
couple of things about that I think the right
way to think about the language Justice Kagan
is that it was a means to an end in 1945 when
it was enacted
It was not the end in itself to assure
equivalence of treatment come what may It was
the means by which Congress ensured that it
would fulfill its treaty commitments which were
-- and those treaty commitments were to provide
virtually absolute immunity
And we know the Senate report says
were enacting this provision to fulfill our
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treaty commitments And our treaty
commitments again were not to treat them the
same They were to provide virtually absolute
immunity So -shy
JUSTICE KAGAN Do you think it was -shy
you answered Justice Ginsburgs questions about
how far we were from the Tate Letter in 1945
but do you think it was inconceivable to
Congress that the common law of immunity would
change
MR VERRILLI Well I -- I -- I cant
say that it would be inconceivable to anybody
but what I can say is if one looks at the
debates surrounding the passage of the IOIA
is once again its a dog that didnt bark
You cant find a single person
anywhere saying anything remotely like the
proposition that we need to adopt a standard
that will evolve over time because we have a
concern that foreign sovereign immunity law
will evolve over time
That just was not any part of
anybodys thinking at that time They were
trying -- you have to remember this is coming
out of the Bretten Woods system We have
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Bretten Woods We set up all these
organizations
They have a -- they have a desperate
mission in front of them to try to rebuild the
world -- the world after the carnage of World
War II Theres a lot of pressure on Congress
to get these organizations up and going and
give them the immunity we promised them so they
can go out and do their work Thats what led
to the enactment of the IOIA
It was none of these other things as
I said I really think if you look at the
historical materials its the -- the gloss
that my friends on the other side are trying to
put on it is completely anachronistic
Theyre taking a different concept
that theyve come up with now and trying to
retrofit the historical facts to match it and
it just isnt right
JUSTICE BREYER Is that -- is that -shy
the Russians at that time 45 and so forth
were putting all these businesses into state
entities So my guess is there were -- there
were a number of cases and what I thought I
heard Mr Fisher say is if we really go back
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and look at this well see that the status quo
before this passed was not absolute immunity
but the status quo was a kind of mess where
sometimes the State Department would say give
them immunity and sometimes the State
Department would say not
Now what is the actual situation as
far as youve been able to find it
MR VERRILLI Well I dont -shy
respectfully with respect to my friends on the
other side I dont think thats a fair
characterization of the historical materials
JUSTICE GINSBURG Thats the same -shy
the answer you gave to me is the answer you
would give to Justice Breyer
MR VERRILLI Yes
JUSTICE GINSBURG Same question
MR VERRILLI Yes I mean its just
not there I mean look at what this Courts
cases said This Courts cases didnt say
anything like that
The -- the -- the governments briefs
to this Court didnt say anything like that
When this Court has looked back on the law in
Verlinden and in Samantar it hadnt said
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anything like that It said the standard was a
common law standard of virtually absolute
immunity
And thats in fact how the Tate
Letter describes it too And then as a process
matter -shy
JUSTICE BREYER Okay I got it
MR VERRILLI -- my friends on the
other side have made this argument that well
our position would also require you to go back
to the process of the State Department making
an ad hoc case-by-case determination but
thats wrong too
And thats clear on the face of the
statute that its wrong And the reason -- and
-- and thats right in Section 288 This
creates an entirely different mechanism
What the -- what the IOIA says is that
-- that the President shall have the authority
under executive order once Congress has
enacted a statute to grant an international
organization the privileges and immunities
And if you look at the face of the
statute its obvious that they are granted on
a categorical basis in gross by an executive
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order not on a case-by-case basis by the State
Department when -- when a lawsuit is -- or when
a -- when a lawsuit is filed
And then similarly in terms of the
Presidents authority as to an executive order
to reduce or eliminate the -- the immunity of
an international organization that -- its -shy
again its completely different than the
situation that -- than the common law process
at work So obviously Congress made a
judgment that it was going to put a different
structure and system in place
And the fact that Congress did that I
do say -- I do think quite clearly presupposes
that theres a -- the existence of a
substantive standard being prescribed And the
substantive standard as I said is virtually
absolute immunity
And then in terms of the structural
indicators in the statutory text going back to
a question you asked Justice Sotomayor I
really think the most telling one to -- to
show you I think why my friends on the other
sides case is completely anachronistic and
were correct -- is Section 288f which you can
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find at page 6a of the appendix to the blue
brief
That provision says that the
privileges exemptions and immunities of
international organizations and then of -- of
members and employees et cetera shall be
granted notwithstanding the fact that similar
privileges exemptions and immunities granted
to a foreign government et cetera et cetera
may be conditioned upon the existence of
reciprocity by that foreign government
So right there in the text it
decouples the treatment of international
organizations from the treatment of foreign
states Even in a situation in which the
United States would not grant the full range of
virtually absolute immunity because it wasnt
being -- receiving reciprocal treatment this
statute says the international organization
gets it So -shy
JUSTICE GINSBURG How do you deal
with the argument that we just heard that we
can compare 288a on the one hand which -shy
which keeps the international organizations in
tune with foreign sovereigns and 288 -- was it
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b and d
MR VERRILLI Yes I do think that
the -- the differences break down into two
categories Your Honor There -- some of the
provisions do prescribe fixed standards
Thats true But those fixed standards as we
explained in our brief or at least tried to
are always situations in which the IOIA is
conferring a narrower set of immunities on -shy
on diplomats and individuals than the common
law would have at the time
So incorporation of the standard in
the way this 288a(b) did wouldnt accomplish
the objective there because there was -- they
were quite consciously trying to narrow the
overall scope of immunities and not give the
individuals who worked at these organizations
the same full treatment that diplomats got who
-- from foreign states
Now the second subcategory are the
provisions where the -- the statute says that
their -- the treatment shall be the same But
theres two things about that that are
significant
One is it says they shall be the same
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as under another statutory provision And as
we said we think thats vitally important
here We think its quite clear that in
addition to Justice Breyers points about the
reference canon that the reference canon
applies when one statute incorporates another
It doesnt apply when one statute incorporates
the common law And here they were
incorporating statutes
And if you look at those provisions
anyway theyre basically just instructions to
the executive branch when do you fingerprint
the people when theyre coming in What do you
do about that -- this detail or that detail
They dont go to the heart of the
matter at all And the heart of the matter
here is the immunity being conferred on these
international organizations
I just want to make a point about that
and then if I could talk about the
consequences that will ensue I think if we go
down the path that my friends on the other side
are suggesting
I think this is a critical point I
just want to make sure its clear Another
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reason why you shouldnt draw this equivalence
-- and it cant be that Congress really
intended to draw an equivalence between foreign
states and international organizations such
that they would just move in tandem no matter
what -- is that immunity is granted for
different reasons
The reason you give an international
organization immunity is a functional reason
not a status reason Its not about according
the appropriate respect to the sovereigns
because international organizations arent
sovereigns Theyre separate juridical
persons And whats quite clear -- its clear
from the U -- the San Francisco report on the
foundation of the UN its clear from the
Senate report in 1945 its clear from all the
commentators that we discussed in our brief
its clear from the Restatement of Foreign
Relations which weve cited in our brief that
you grant immunity to international
organizations so that they can carry out their
functions effectively And -- and just take -shy
let me take a minute and kind of elaborate on
that because I think its critical
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Remember these are -shy
CHIEF JUSTICE ROBERTS If you dont
mind Im afraid Im about five minutes behind
you here but going -- going back to your point
on 288f you said its there theyre decoupling
the international organizations and the foreign
sovereigns But as I go back and read it
its simply because the -- the foreign
sovereigns have the capability to use
reciprocity and the foreign -- and the
multi-country organizations do not
I dont -- I mean thats the
difference theyre drawing there not something
between the scope of the actual immunities
MR VERRILLI Well I -- well the
way I read it Mr Chief Justice is what -shy
what theyre doing there is saying even in a
situation in which the United States concludes
that it wont afford a foreign sovereign the
full virtually absolute immunity because of
reciprocity in other words were not getting
it back from them even in that situation an
international organization of -- where those
sovereigns are members will still receive the
full level of immunity
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And so I think what that tells us is
that what Congress was trying to do in this
statute overall was prescribe a fixed
substantive standard not a floating standard
where the two things move in tandem So -- and
I -- I do think it supports that
And if I could just go back to the
functional point remember these are
collective bodies and members come together
they make -- they -- they take resources from
each of their own countries They put them
into these organizations They make collective
decisions about how to deploy those resources
And the point of the immunity here is
so that the courts of any country but
especially the host country which for the most
important organizations are going to be here in
the United States cant override the
collective judgments that they make about how
their resources would be deployed and what
conditions they ought to impose et cetera by
the intervention of domestic law in US courts
and cant redirect the funds that are put into
these organizations to pay massive class action
tort judgments because of course the member
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countries are contributing this money because
they believe its going to be put to the use
that the -- for example the development bank
the development bank decides it should be put
to not to pay massive tort judgments
And I think one place you see this
very clearly if you look at the report of the
San Francisco conference about the founding of
the UN the State Departments -shy
Departments response coming -- report coming
out of that conference specifically says this
It says of course the United Nations cant be
subject to the jurisdiction of any one state or
its courts
And its for exactly this reason And
the same thing is true generally Thats why
you give it not for functional reasons -- I
mean excuse me not for reasons of status but
for functional reasons
And I think a key -- another key
reason why you shouldnt be thinking about this
as a standard that evolves evolves now and
over time is that those functional reasons
dont evolve now and over time
CHIEF JUSTICE ROBERTS Well what
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about the point that most of the concerns you
have are going to be dealt with by the
requirement of a nexus to activity in the
United States as opposed to simply abroad
where the projects are funded
MR VERRILLI Yes I was gratified
to hear the United States say that but -- and
-- but I could just -- Ill answer Your Honors
question directly but I want to broaden it out
a little bit because I think what essentially
the United States is saying here is look the
statute leaves one with no choice but to apply
restrictive principles of immunity Youve got
to jump off that cliff but dont worry it
will be a soft landing because the FSIA will
take care of a lot of these problems
And I guess what I would say about
that is in the unlikely event you dont agree
with me I -shy
(Laughter)
MR VERRILLI -- I hope theyre
right But theres no guarantee that theyre
right
JUSTICE BREYER Are the -- are the
lending decisions which may be fairly detailed
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and may include dozens of conditions made
within the United States
MR VERRILLI Well yes I think
thats a big part of the problem and -shy
JUSTICE BREYER Is there -- are there
lawsuits that could say that there was
negligence in determining in a different
country who the persons were or the conditions
under which the money would be spent Is that
an American lawsuit saying what youve done
here is commit the act of negligence or failure
to be a fiduciary here
MR VERRILLI Thats this lawsuit
Thats this lawsuit Justice Breyer Thats
exactly what theyre alleging
CHIEF JUSTICE ROBERTS Well but I
mean is that consistent with our opinion in
the OBB case which I think -- if the complaint
is based the gravamen of the complaint not
specific steps along the way and that was the
issue we dealt with in that case
And I appreciate the fact that its
you know to some extent dependent on the facts
and particular allegations but it would seem
to me to require a lot more than simply the
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specific decisions I think where -- wheres
the gravamen or gravamen however you say it
with whats going on here
MR VERRILLI Well we would
certainly say its India of course
CHIEF JUSTICE ROBERTS Yeah
MR VERRILLI And if -- if we have to
defend ourselves on that basis we will But I
-- but I -- I think it -- it understates the
real concrete risk here And what Id like to
do to illustrate that if I could is first
talk about the organizations that are going to
be exposed in a way that they wouldnt be under
the law
And as Justice Breyer indicated
earlier its important to remember this has
been the law in the DC Circuit for decades
and theres -- and people have ordered their
affairs based on the assumption that there was
virtually absolute immunity
But with respect -- but with respect
to the consequences and the groups affected and
then the types of effects With respect to the
groups affected youve got entities like us
the multilateral development banks And
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Justice Breyers identified many of them
Now the -- the main ones are here
here in Washington DC and theyre making
their decisions here and I think critically
too there are billions of dollars of assets
here
Now were going to make the OBB
argument for sure and I hope we win if we have
to make the argument I hope we win But who
knows how courts are going to come out on that
issue
Were going to have a lot of fighting
about that There are probably going to be
matters of degree Theres certainly going to
be significant disincentives arising out of
that uncertainty
Theres a whole another group of
entities that unlike the banks at least have
articles of agreement where we can try and fall
back on those for alternative arguments of
immunity where their immunity depends entirely
on the statutory grant the International
Committee of the Red Cross the World Health
Organization the fund to fight -- the global
fund to fight AIDS and tuberculosis and
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malaria
They are all entirely dependent on the
IOIA for their immunities and those immunities
are drastically different after this And then
we do have the issue I think with some
organizations that we may even actually now be
out of our -- out of compliance with our treaty
commitments
Now whats going to happen Heres
what I think is going to happen and I think
this lawsuit helps you see it
Now the way -- the basis of this
lawsuit is the following IFC when it loans
money here its loaning money in -- in parts
of the world where private capital wont go
unless we go in there
And very often they have un-developed
legal systems and they certainly dont have
robust environmental protections or labor
protections So what the IFC has done is lien
into those put those kinds of environmental
standards and labor standards into its
agreements saying you want this money to do
this development project these are the
standards that youve got to live up to
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And -- and this lawsuit is that -shy
that the entity that we loan this money to
didnt live up to the standards and its our
fault And so were being sued here
Well its going to create -- if that
kind of a suit can go forward and hopefully it
wont be able to Mr Chief Justice but if it
can its certainly going to create an
extraordinary disincentive for organizations
like ours to lien into those kinds of standards
because were going to be hoist by our own
petard
Now weve also got a robust internal
accountability mechanism where if people think
something has gone wrong on one of our
projects they can come to us and they can say
-- they can say look theres a problem here
And they -- and we investigate We take
internal remedial measures if we find theres a
problem
Well you know the factual basis for
the lawsuit is the report of our internal
accountability process
So if they can just grab that and take
it into court and make it the basis for a class
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action tort lawsuit in which they can make a
claim for all this money its going to create
a powerful disincentive for us not to engage in
that kind of self-policing activity
And I would submit that you know
even if things ultimately work themselves out
under the FSIA and I hope they -- I hope we
dont have to deal with that but even if we
do its going to take a very long time There
are going to be a lot of difficult cases at the
margin There are going to be very serious
disincentives immediately
And conversely you know were a big
fat target here These organizations have lots
of money And of course foreign plaintiffs
want to sue here They can bring a class
action They get liberal discovery They can
get punitive damages They get all of these
advantages by suing here
So instead of suing the person that
actually injured them the power plant in
India they come here and sue us
And I really think what you are going
to see here is that this is just going to
become another version of the sorts of
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foreign-cubed lawsuits that the Court has been
concerned about under the Alien Tort Statute
where the international organization is just
going to be subbed in for the foreign defendant
and its going to be subbed in in a situation
where were going to have a very significant
pile of money
And if I could just close with this
thought -- Im just going to pick up on Justice
Breyers thought -- the law in the District of
Columbia where virtually all these
organizations have been housed are
headquartered has been virtually absent
immunity under DC circuit law for decades
Thats the standard everybody has been
operating on
Nobodys suggested that anything has
gone wrong under this statute that there are
any deleterious policy consequences that the
interests of the United States are adversely
affected in any way In fact if you look at
the amicus brief from the former Secretaries of
Treasury and State they think that the policy
of the government arguing now is going to
disrupt the United States ability to function
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effectively with these organizations
It has all been fine And -- but
theyre asking you essentially to repeat a
metaphor to jump off a cliff And hopefully
it will be a soft landing But we dont know
that And it could easily result in a lot of
disruption to the good work that these
organizations do
And I guess what I would suggest is
that if thats going to happen it ought to
happen through legislation Congress can look
at this Congress can change the law if it
wants to But this has been the law for a very
long time There is no evidence that it has
done anything other than work well
And therefore I think the Court
should affirm the DC Circuit Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Four minutes Mr Fisher
REBUTTAL ARGUMENT OF JEFFREY L FISHER
ON BEHALF OF THE PETITIONERS
MR FISHER Thank you Id like to
make four points and Id like to start with the
text of the statute itself and simply say when
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Mr Verrilli talks about the Neder Doctrine and
the Common Law Doctrine that you look at the
term a terms meaning at the time of
enactment Hes mixing apples and oranges
And I think all the citations in our
reply brief should make it absolutely clear
that theres a doctrine on the one hand that
talks about incorporating a body of law and
theres a doctrine on the other hand about
giving meaning to a specific term Were in
the former camp here
And as to the point about whether the
common law was evolving at the time two
things Well stand on the papers as to the
fact that it was somewhat in flux
But the more important point is even
if it werent in flux it wouldnt matter one
wit because the other side is making a
sweeping proposition which is any general
reference to common law is fixed in time
That would disrupt any number of
federal statutory regimes from the Federal
Tort Claims Act enacted the year after this
statute the Equal Access to Justice Act the
federal governments piracy statute Federal
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Rule of Evidence 501 I could go on and on
with federal statutory regimes that reference
the common law in exactly the same way the
statute does here
The Civil Rights Act of 1866 if you
want one more All of those would come out the
other way from this Courts jurisprudence and
from all the understanding if the other side is
right about statutory interpretation
So I think the only thing the other
side has is they have a bunch of policy points
to make for this Court
Now we dont think they should
control but let me answer them So first as
to our treaty obligations So one about at the
moment of enactment My friend kept saying
that there were various agreements in place
that required virtually absolute immunity
None of the agreements use those
words Instead what those agreements said is
that certain organizations were entitled to
immunity to allow them to perform their
necessary functions Thats a very different
thing than absolute immunity
And its very different because none
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of the organizations involved were performing
Justice Sotomayor commercial activities that
were essential to their core functions not the
UN not any of the other organizations
So we werent in breach of any treaty
rights And if you have any doubt on that I
would urge you to look to the federal
governments position then and now Its not
just a brief filed in this Court
It is the position that four different
Presidential Administrations have taken The
Carter Administration right after the FSIA was
passed the George H W Bush Administration
the Clinton Administration and now the Trump
Administration have all consistently held that
the FSIA rules are incorporated into the FSIA
Next on the floodgates concern I
explained earlier and I hope you will think
about the fact that while the core activities
of the IFC might be commercial activity not
all of the IFCs activities are and certainly
not all the activities of international
organizations are
But let me add one more thing My
friend talked about big lawsuits of ruinous
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liability Well theres two very easy ways to
control that
One is to the extent any claims are
on contracts they can write their own
contracts and negotiate their own contracts
As the Solicitor General points out they can
even deal with third-party beneficiaries in
their contracts if they choose
Secondly as to tort claims they can
and in fact commonly do indemnify themselves
against tort lawsuits In this very case
their agreement indemnifies them against any
judgment and all legal fees
So these organizations have every
manner of method to deal with any potential
liability And in fact they are which sort
of belies the suggestion that they think
theyre absolutely immune from lawsuit
Finally let me say one thing about
the so-called foreign cubed problem or the
facts of this case Now obviously we think
that we would satisfy the gravamen test They
have never made that argument And if they
want to make it we can -- we can have that
conversation in the lower courts
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But bear in mind what youre being
asked to do in this case is to announce a
categorical rule for all cases dealing with
international organizations
So my friend in the Solicitor
Generals Office talked about just regular tort
slip and fall cases and the like in the United
States Let me give you one other thing to
think about
Some international organizations
actually do their work in the United States
The border cooperation -- the Border
Environmental Cooperation Commission does
wastewater treatment plants in Texas and
California
I cant think of any reason why they
would be immune from those infrastructure
projects in a way that no private business or
public government would be
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1206 pm the case
was submitted)
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1 392151723 4122 4223 433
452 462 4718 4817 5220 57
allegations [1] 5624
alleging [1] 5615 B
1108 [2] 115 32 20 651824 allow [3] 2321 246 6522 back [22] 44 61420 10513 11
1206 [1] 6822 Absolutely [3] 3113 646 6718 allowed [1] 2610 17 154422 172425 1911 226
1602 [1] 1412 Access [1] 6424 allows [3] 231220 242 4425 4524 4610 4720 5247
17-1011 [1] 34 accident [1] 2615 almost [2] 719 253 22 537 5820
1866 [1] 655 accompanying [1] 4111 already [4] 311521 323 4118 backwards [4] 514 23161724
1904 [2] 614 1725 accomplish [1] 4913 alternative [1] 5820 bad [1] 1416
1934 [1] 49 according [2] 1817 5110 Altmann [1] 1318 bank [13] 719 81822 98 2716
1945 [17] 1013 142025 151213 accountability [2] 601423 amended [1] 1615 283455 3022 324 5434
15 1617 331 3522 36710 374 accumulated [1] 3514 American [3] 112 3721 5610 banks [9] 88910 271415 2911
388 3911 4216 437 5117 across [1] 1025 amicus [4] 122 27 2011 6222 3021 5725 5818
1946 [1] 3914 Act [15] 320 6319 1412 1724 20 amounts [1] 2411 bare [1] 1524
1952 [4] 3618 3921 4012 415 422 212 301518 347 5611 64 anachronistic [3] 425 4415 47 bark [2] 405 4315
1970 [6] 3919 4013 415101520 2324 655 24 barred [2] 2689
1990s [1] 1221 action [3] 5324 61117 announce [1] 682 based [5] 2518 354 386 5619
1994 [1] 115 activities [11] 8517 195 2717 another [13] 323 144 167 1923 5719
2 2910 3122 4017 662192122 2122 378 3823 501625 5420 basic [1] 3413
20 [2] 28 2622
20-some [1] 2624
2018 [1] 111
21 [1] 3421
27 [1] 3717
288 [4] 2213 331 4616 4825
288a [3] 1915 2018 4823
288a(b [4] 2024 2111 2215 49
13
288a(d [1] 2110
288b [1] 343
288d [1] 1916
288d(a [1] 2110
288f [2] 4725 525
activity [23] 791820 81015 94
69 2551718 27182325 2914
17 3010 31211 322 553 614
6620
actors [1] 2912
acts [1] 216
actual [2] 457 5214
actually [4] 4111 596 6121 68
11
ad [1] 4612
add [3] 1424 2510 6624
addition [2] 2515 504
address [4] 417 78 2423 403
adjust [2] 1212 1720
Administration [4] 66121314
5817 6125
answer [11] 71122 10191920
1817 2514 451414 558 6514
answered [1] 436
antiquated [1] 1816
anybody [3] 3825 4014 4312
anybodys [1] 4323
anyway [1] 5011
APPEARANCES [1] 117
appendix [1] 481
apples [1] 644
applied [1] 710
applies [5] 612 2216 341415 50
6
apply [7] 1010 161 1919 2215
basically [2] 1822 5011
basis [6] 4625 471 578 5912 60
2125
bear [1] 681
became [1] 3922
become [1] 6125
becomes [1] 1815
behalf [8] 11925 241114 38 33
8 6322
behind [1] 523
belies [1] 6717
believe [1] 542
beneficiaries [1] 677
best [2] 396 423
better [1] 2019
3 15 2521 507 5512 between [2] 513 5214
3 [1] 24 Administrations [1] 1825 appreciate [1] 5622 beyond [2] 3712 3822
30 [1] 2622 Administrations [1] 6611 appropriate [1] 5111 big [5] 2223 3022 564 6113 66
31 [2] 111 4113 adopt [1] 4318 archives [1] 213 25
33 [1] 211 adopting [1] 47 area [2] 171618 billions [1] 585
4 adoption [1] 1610
advance [1] 3612
arent [1] 5112
argued [1] 92
bit [2] 363 5510
blue [1] 481
45 [1] 4421 advantages [1] 6119 arguing [1] 6224 bodies [1] 539
5 5 [1] 1612
501 [1] 651
527 [1] 3420
adversely [1] 6220
advice [1] 812
advising [1] 3525
advocated [1] 309
affairs [1] 5719
argument [24] 114 225912 34
7 5111 625 1410 1914 2010
2213 2314 337 3521 3710 46
9 4822 5889 6321 6723
arguments [2] 416 5820
body [4] 32325 425 648
border [2] 681212
both [1] 2211
bounds [1] 1714
branch [11] 1024 1481318 151
6 affected [3] 572224 6221 arising [1] 5815 161924 398 4015 5012
63 [1] 214 affirm [1] 6317 Armed [1] 63 breach [1] 665
6a [1] 481 afford [2] 296 5219 articles [1] 5819 break [1] 493
8 afraid [2] 1625 523
Africa [1] 3023
Asia [1] 3023
Asian [1] 284
Bretten [2] 4325 441
BREYER [40] 43 513162022 6
80-some [1] 2623 African [1] 285 assets [1] 585 16 717 817 912 108 1117 12
A agencies [1] 3819
agree [3] 2018 253 5518
Assistant [1] 120
Association [1] 286
22 133 147 157 238111923
24259151821 2712 282914 am [2] 115 32
agreed [1] 294 assume [3] 1221 1711 222 301619 3147 4420 4515 467 ability [4] 12121315 6225
agreement [4] 282325 5819 67 assuming [1] 277 5524 56514 5715 able [7] 1023 2423 2513 264 32
12 assumption [2] 1223 5719 Breyers [4] 164 504 581 6210 20 458 607
agreements [5] 2821 5923 65 assurance [1] 318 brief [16] 618 115 364 377918 above-entitled [1] 113
171920 assure [3] 30619 4218 41121314 482 497 511820 abroad [1] 554
agricultural [1] 84 attenuated [1] 2523 6222 646 669 absent [1] 6213
AIDS [1] 5825 authority [7] 212425 2241114 briefs [1] 4522 absolute [33] 1922 201 22310
AL [1] 13 4619 475 bring [1] 6116 20 2610 282025 3215 331215
Alan [1] 1624 available [3] 11810 412 broaden [1] 559 21 34117 3524 361622 383
Alien [1] 622 BUDHA [1] 13
Heritage Reporting Corporation Sheet 1 1108 - BUDHA
70Official - Subject to Review
building [1] 2613
bunch [1] 6511
Bush [1] 6613
business [2] 1414 6818
businesses [1] 4422
bygone [2] 181819
C California [2] 118 6815
call [1] 412
came [5] 113 1125 1223 3779
camp [1] 6411
canon [5] 159 165 1911 5055
capability [1] 529
capital [1] 5915
captures [1] 2718
Carcieri [1] 67
care [1] 5516
Career [1] 63
carnage [1] 445
carry [1] 5122
Carter [1] 6612
Case [35] 34 4189 548 6236
88161718 9162025 14116
191 2117 2511 34182122 36
2 404 4724 561821 671121
6822122
case-by-case [2] 4612 471
cases [13] 413 61 92 158 1824
269 3415 4424 452020 6110
6837
categorical [2] 4625 683
categories [1] 494
category [2] 878
certain [2] 304 6521
Certainly [7] 1313 402 575 58
14 5918 608 6621
cetera [4] 48699 5321
change [4] 305 348 4310 6312
changes [1] 46
characterization [2] 367 4512
charter [6] 2816 311920 3910
1125
Chase [1] 618
CHIEF [15] 339 20713 3349 34
24 52216 5425 5616 576 607
6318 6820
choice [2] 174 5512
choose [1] 678
Circuit [4] 1814 5717 6214 63
17
circumstances [1] 3224
citations [1] 645
cite [2] 6218
cited [2] 525 5120
citizens [1] 3216
Civil [1] 655
claim [2] 311 612
Claims [3] 6423 6739
class [3] 5324 6025 6116
classic [1] 404
clear [17] 316 1119 1515 2424
2521 2716 4021 4121 4614 50
325 511414161719 646
clearly [2] 4714 547
cliff [2] 5514 634
Clinton [1] 6614
close [3] 425 712 628
closely [1] 910
collection [1] 218
collective [3] 5391219
Columbia [1] 6211
come [11] 1115 1521 322 421
19 4417 539 5810 6016 6122
656
comes [2] 548
comfort [1] 1121
coming [6] 97 3511 4324 5013
541010
commentators [1] 5118
commercial [26] 420 791720 8
1015 9469 2551618 27317
182325 291417 3010 312 32
2 401622 66220
Commission [1] 6813
commit [3] 3323 3816 5611
commitment [1] 3924
commitments [6] 3824 422122
4312 598
committed [4] 332125 3814 39
11
Committee [1] 5823
common [17] 621 74 1419 185
67 3314 3515 439 462 479 49
10 508 6421320 653
commonly [1] 6710
comparator [1] 715
compare [2] 1915 4823
competent [1] 622
complaint [2] 561819
completely [4] 424 4415 47824
compliance [2] 409 597
comply [1] 4124
components [1] 822
concede [1] 2112
concept [1] 4416
concern [4] 1325 414 4320 66
17
concerned [1] 622
concerns [2] 268 551
concludes [1] 5218
conclusion [1] 155
concrete [1] 5710
conditioned [1] 4810
conditions [3] 5321 5618
conduct [2] 261 3217
conference [2] 54811
conferred [2] 4122 5017
conferring [1] 499
Congress [36] 1023 1125 1224
25 1317 1415 174710111217
21 18210 1924 222 231 3225
3319 34616 351417 416 42
20 439 446 4620 471013 512
532 631112
Congresss [1] 1215
connected [1] 2516
connection [1] 2523
consciously [1] 4915
consequences [3] 5021 5722
6219
consideration [1] 374
consistent [3] 46 1011 5617
consistently [1] 6615
construction [3] 3414 351313
contemplated [1] 195
context [1] 3317
Contoe [1] 1624
contract [1] 2612
contractor [1] 2613
contracts [4] 674558
contributing [1] 541
control [4] 1523 162 6514 672
convention [8] 38181920 3913
19 40713 417
conversation [1] 6725
conversely [1] 6113
conviction [1] 65
cooperation [2] 681213
core [4] 2910 3122 66319
CORPORATION [2] 16 35
correct [3] 136 1924 4725
correctly [2] 510 1822
couldnt [2] 2225 2923
counsel [4] 208 335 6319 6821
count [1] 2916
countries [3] 3623 5311 541
country [4] 399 531516 568
counts [1] 2914
couple [4] 241419 3114 4214
coupled [1] 315
course [9] 621 3422 352 3823
4123 5325 5412 575 6115
COURT [31] 1114 310 6824 15
1718 1824 2014 2721 3213 33
310 34131925 351715 361
131416 371 452324 6025 62
1 6316 6512 669
Courts [6] 523 1518 2520 4519
20 657
courts [9] 1423 2722 309 3218
531522 5414 5810 6725
create [4] 1121 6058 612
creates [1] 4617
Criminal [1] 63
critical [2] 5024 5125
critically [1] 584
Cross [1] 5823
crystal-clear [1] 2824
cubed [1] 6720
curiae [3] 122 28 2012
D DC [7] 1102124 2616 5717 58
3 6317
damages [1] 6118
date [1] 1723
dates [1] 613
day [1] 1817
DC [1] 6214
deal [10] 188 2021 2223 2425
3022 4025 4821 618 67715
dealing [1] 683
deals [1] 2123
dealt [3] 2819 552 5621
debates [1] 4314
decades [2] 5717 6214
decide [6] 527 913141923
decides [2] 1516 544
decision [3] 2520 342021
decisions [4] 5313 5525 571 58
4
decouples [1] 4813
decoupling [1] 525
decrease [1] 136
default [2] 126 1720
defend [1] 578
defendant [1] 624
degree [1] 5814
deleterious [1] 6219
denying [1] 315
Department [15] 121 56 917 18
25 198 2823 3525 36101214
402 4546 4611 472
Departments [2] 54910
dependent [2] 5623 592
depends [1] 5821
deploy [1] 5313
deployed [1] 5320
describe [1] 3615
described [1] 1510
describes [2] 3912 465
describing [1] 2218
designated [1] 2623
desperate [1] 443
detail [2] 501414
detailed [1] 5525
determination [2] 1415 4612
determining [1] 567
development [13] 271415 2845
56 2911 302124 5434 5725
5924
dichotomy [1] 1916
dictates [1] 3517
difference [1] 5213
differences [1] 493
different [20] 7323 97 171321
181 2111 3818 4020 4416 46
17 47811 517 567 594 6523
25 6610
difficult [1] 6110
diplomatic [2] 2222 418
diplomats [4] 4138 491018
direction [2] 3956
directly [2] 3122 559
discarded [1] 204
discovery [1] 6117
discussed [1] 5118
discusses [1] 114
discussing [1] 1917
discussion [1] 2017
disincentive [2] 609 613
disincentives [2] 5815 6112
dispute [3] 322 42 82
disputes [2] 261212
disrupt [2] 6225 6421
Heritage Reporting Corporation Sheet 2 building - disrupt
71Official - Subject to Review
disruption [1] 637
District [1] 6210
doctrine [8] 18581819 64127
9
dog [2] 405 4315
doing [5] 194 267 3625 4017 52
17
dollars [1] 585
domestic [3] 2612 3217 5322
DONALD [3] 124 210 337
done [3] 5610 5920 6315
doubt [2] 1913 666
doubts [2] 2511 264
down [5] 1722 182 1925 493 50
22
dozens [1] 561
draft [1] 203
drafting [2] 316 2119
drastically [1] 594
draw [2] 5113
drawing [1] 5213
driving [1] 2615
E each [3] 372324 5311
earlier [2] 5716 6618
easily [1] 636
easy [1] 671
effect [3] 61 364 382
effectively [2] 5123 631
effects [1] 5723
either [2] 94 156
elaborate [1] 5124
element [1] 355
eliminate [2] 259 476
ELLIS [31] 120 26 2091013 21
21 2212 23921 2447141719
23 2621 27481013 2881115
294820 3018 313613 328
employees [3] 214 2221 486
enact [1] 304
enacted [11] 1616 3225 3319 38
89 412325 42817 4621 6423
enacting [1] 4225
enactment [6] 75 17910 4410
644 6516
encourage [1] 3024
end [4] 425 358 421618
ended [1] 383
enforcement [1] 83
engage [3] 197 2724 613
enjoy [1] 58
enjoyed [2] 313 1210
enough [2] 2523 2921
ensue [1] 5021
ensured [1] 4220
enter [4] 3011212 329
entered [1] 2820
entire [1] 2021
entirely [3] 4617 5821 592
entities [3] 4423 5724 5818
entitled [3] 319 1922 6521
entity [1] 602
environmental [3] 591921 6813
Equal [1] 6424
equivalence [3] 4219 5113
equivalent [1] 424
era [2] 181819
especially [5] 324 1021 18419
5316
ESQ [6] 11824 2361013
essential [1] 663
essentially [3] 2124 5510 633
established [2] 351821
ET [5] 13 48699 5321
Even [30] 63 8816 107 1110 12
1620 1424 1816 19345 256
10 265 2714141415 361218
427 4815 521722 596 6168
6416 677
event [1] 5518
everybody [2] 4121 6215
everybodys [1] 277
everything [4] 96 1013 2534
evidence [3] 393 6314 651
evolve [4] 1620 431921 5424
evolves [2] 542222
evolving [2] 3313 6413
Ex [1] 1514
exact [2] 625 1916
exactly [8] 124 1714 237 3224
4211 5415 5615 653
example [6] 719 81 198 2412
3725 543
examples [2] 1025 3720
exception [5] 79 256 271925
349
excuse [1] 5418
executive [16] 1024 1481318
151161924 3410 398 4014
416 462025 475 5012
exemptions [2] 4848
exist [1] 194
existence [2] 4715 4810
expect [2] 4025
explained [3] 2722 497 6618
exposed [1] 5713
extent [3] 394 5623 673
extraordinary [1] 609
F face [2] 461423
fact [12] 2512 3123 393 464 47
13 487 5622 6221 6415 6619
671016
facts [3] 4418 5623 6721
factual [1] 6021
failed [1] 391
failure [1] 5611
fair [3] 366 373 4511
fairly [1] 5525
fall [4] 1911 2614 5819 687
far [4] 201719 437 458
fat [1] 6114
fault [1] 604
favor [2] 76 3112
federal [8] 1210 1823 642222
2525 652 667
fees [1] 6713
few [1] 723
fiduciary [1] 5612
fight [2] 582425
fighting [1] 5812
filed [3] 4114 473 669
Finally [1] 6719
FINANCE [2] 16 35
financial [2] 814 329
find [7] 2923 401415 4316 458
481 6019
fine [1] 632
fingerprint [1] 5012
first [10] 7123 102 1412 1610
1724 2324 351 5711 6514
FISHER [23] 118 2313 3679 5
12151721 10418 1381013 16
31321 173 4425 63202123
fisheries [1] 81
fit [2] 106 1520
five [3] 818 389 523
fixed [8] 212 2219 331216 495
6 533 6420
floating [1] 534
floodgate [1] 279
floodgates [3] 267 3116 6617
flux [6] 189 3523 361520 6415
17
focus [1] 3213
following [1] 5913
foolish [1] 1816
foreign [39] 3131819 7141518
812 97 1216 19720 219 234
9 2512 3219 3324 391622 42
2910 4320 489111425 4919
51319 52681019 6115 624
6720
foreign-cubed [1] 621
forever [1] 44
forgive [1] 1623
form [5] 1172123 1434
former [2] 6222 6411
forth [1] 4421
forward [8] 131424 142 2513
265 32314 606
foundation [1] 5116
founding [2] 620 548
Four [3] 632024 6610
Francisco [2] 5115 548
fraud [3] 342323 356
friend [6] 2016 2120 254 6516
6625 685
friends [7] 344 3920 4414 4510
468 4723 5022
front [2] 426 444
frozen [1] 2117
FSIA [10] 1411 15423 2718 297
5515 617 66121616
fulfill [3] 3320 422125
full [5] 354 4816 4918 522025
fully [1] 1023
function [1] 6225
functional [5] 519 538 541719
23
functions [3] 5123 6523 663
fund [2] 582425
funded [1] 555
funds [2] 196 5323
further [1] 332
future [1] 102
G gave [5] 517 124 349 382 4514
General [7] 120 322 113 1716
1811 6419 676
Generals [1] 686
generally [1] 5416
George [1] 6613
gets [1] 4820
getting [3] 923 148 5221
GINSBURG [5] 326 3520 4513
17 4821
Ginsburgs [1] 436
give [24] 56 61722 824 1018 11
21 1221115 131 15171920
3016 31814 3719 448 45415
4916 518 5417 688
given [10] 41 15122 175 1914
2211 3115 349 361
gives [4] 31117 812 1116
giving [1] 6410
Glad [1] 2423
global [1] 5824
gloss [1] 4413
goal [1] 1411
Gorsuch [6] 410 163142225
1813
got [9] 510 2317 289 467 4918
5513 5724 5925 6013
gotten [1] 3715
government [7] 127 318 3811
48911 6224 6819
governments [4] 92 4522 6425
668
governmental [1] 123
governments [11] 31319 812 9
1 12110 219 23410 2720 32
20
governs [1] 3511
grab [1] 6024
granddaddy [1] 4010
grant [8] 2023 2225 2313 246
4621 4816 5121 5822
granted [4] 4624 4878 516
granting [1] 4117
grants [2] 824 302
gratified [1] 556
gravamen [7] 25222425 5619
5722 6722
great [3] 188 2425 4025
gross [1] 4625
group [2] 710 5817
groups [2] 572224
guarantee [1] 5522
guess [6] 922 299 4213 4423
5517 639
H
Heritage Reporting Corporation Sheet 3 disruption - guess
72Official - Subject to Review
half [1] 2810 importing [1] 1419 11 595 56101314 591113 60122 61
hand [3] 4823 6479 impose [1] 5321 itself [7] 716 811 116 2416 372 1 6718
happen [4] 59910 631011 incentives [1] 142 4218 6325 lawsuits [5] 319 566 621 6625
hasten [1] 1424 include [1] 561 J 6711
headquarter [1] 1022 Including [1] 2711 lay [1] 1925
headquartered [4] 1022 2619 inconceivable [2] 43812 JAM [2] 13 34 lead [4] 153410 319
25 6213 incorporate [1] 3518 JEFFREY [5] 118 2313 37 63 least [4] 186 2410 497 5818
headquarters [2] 2615 292 incorporated [6] 325 72 169 33 21 leave [1] 420
Health [1] 5823 14 3423 6616 JONATHAN [3] 120 26 2010 leaves [1] 5512
hear [2] 33 557 incorporates [2] 5067 JR [2] 124 210 led [1] 449
heard [2] 4425 4822 incorporating [2] 509 648 judge [1] 1319 left [1] 2016
heart [2] 501516 incorporation [1] 4912 judgment [2] 4711 6713 legal [2] 5918 6713
heightened [1] 144 increase [1] 226 judgments [3] 531925 545 legislation [3] 813 175 6311
held [2] 309 6615 indeed [4] 427 187 203 Judiciary [2] 619 1724 legislative [1] 1119
helps [1] 5911 indemnifies [1] 6712 July [1] 388 lend [2] 423 2412
hewing [1] 3621 indemnify [1] 6710 jump [2] 5514 634 lending [8] 889101623 2719
historical [4] 393 441318 4512 India [4] 2623 575 6122 juridical [1] 5113 2910 5525
history [4] 316 1119 2119 2818 Indian [2] 47 68 jurisdiction [1] 5413 lends [1] 302
hoc [1] 4612 indicate [1] 3123 jurisprudence [2] 523 657 lens [1] 712
Hoffman [1] 1514 indicated [1] 5715 Justice [96] 121 339 4310 513 less [1] 229
hoist [1] 6011 indicators [1] 4720 162022 616 717 817 912 108 Letter [6] 361919 3921 403 437
hold [1] 3723 individualized [1] 1417 1117 121822 133591112 14 465
Honor [4] 2420 365 4024 494 individuals [3] 419 491017 67 156 1634142225 1812 20 level [3] 3719 387 5225
Honors [1] 558 infer [2] 351616 713 2121 238111923 24259 liability [2] 67116
hope [6] 5521 5889 6177 6618 infrastructure [1] 6817 151821 2617 272691111 28 liberal [1] 6117
hopefully [2] 606 634 initial [1] 4022 2914 2938 301619 3147 32 lien [2] 5920 6010
hornbook [1] 1010 injured [1] 6121 6 33410 34524 3520 3612 40 light [1] 3317
hornbooks [1] 43 injuries [1] 262 1619 42715 4356 4420 4513 limited [1] 1224
host [3] 2025 217 5316 inquiry [1] 358 1517 467 4721 4821 504 522 list [1] 3020
housed [1] 6212 insertion [1] 69 16 5425 5524 5651416 576 little [2] 102 5510
however [1] 572 instance [1] 2220 15 581 607 629 6318 6424 66 live [2] 5925 603
I instead [2] 6120 6520
institutions [2] 81823
2 6820
K loan [3] 820 2924 602
loaning [1] 5914 idea [4] 14816 1618 2618
identified [1] 581
IFC [10] 710 8111919 256 283
323 591320 6620
IFCs [2] 3120 6621
II [1] 446
illustrate [1] 5711
IMF [6] 283 302 37202525 388
immediately [2] 407 6112
immune [4] 215 252 6718 6817
immunities [19] 2025 2216 234
instructions [1] 5011
intended [2] 347 513
Inter-American [1] 284
interest [1] 1114
interests [1] 6220
interfere [1] 3110
internal [3] 60131922
INTERNATIONAL [37] 16 3511
17 422 72224 824 1025 1421
1921 2221 232 251 286 3222
3323 4010 421 4621 477 485
KAGAN [6] 2121 2938 42715
435
keeps [1] 4824
kept [1] 6516
key [2] 542020
kind [5] 825 453 5124 606 614
kinds [5] 716 2618 3820 5921
6010
knowing [1] 101
knows [2] 198 5810
loans [5] 2912131822 5913
lobby [1] 1023
locate [1] 1014
lock [1] 175
long [5] 45 1011 1322 619 63
14
look [32] 61315 724 911 108 13
18 168121416 1713 2021 21
19 2311 2817 311920 351 37
10 4111 4412 45119 4623 50
10 547 5511 6017 6221 6311 3815172121 391213 4118 131924 5018 51481221 526 L 642 667 4622 4848 49916 5214 5933 23 5822 623 6622 68410 labor [2] 591922 looked [4] 44 158 3020 4524
immunity [119] 312171820 419 Interpol [1] 83 landing [2] 5515 635 looking [2] 3523 212425 559 9152125 1024 interpret [1] 1017 language [8] 1017 1518 202 21 looks [3] 3618 3812 4313 11672123 1229911161925 interpretation [2] 3415 659 13 343 359 421215 lot [10] 2017 221 2814 319 446 13120 145141721 15219 16 interpreted [1] 343 last [1] 49 5516 5625 5812 6110 636 1 191922 20124 213925 223 interpreting [2] 619 359 late [1] 4120 lots [2] 420 6114 991922 2337131415 2436 intervention [1] 5322 later [3] 4916 3810 lower [3] 2722 309 6725 101125 259 26510 28152025
297 3025 3121 3251521 33 investigate [1] 6018
inviolable [1] 213
latter [1] 1717
Laughter [4] 172 2318 241 55 M
121522 3411117 3523 36110 involved [2] 149 661 20 made [10] 53 1223 1415 18910
15172224 37121319 3847 39 IOIA [21] 31115 11816 2023 22 law [46] 32425 61121 714 82 3924 469 4710 561 6723
215161722 411822 4223 434 17 2624 331120 3718 3869 1056 131516 1419 151212 mail [1] 3422
920 448 4525 463 47618 48 22 391 411921 4314 4410 46 15 1620 17151618 18567 21 main [1] 582
17 5017 516921 522025 53 18 498 593 14 3314 3515 3619 383 439 malaria [1] 591
14 5513 5720 582121 6214 65 ISMAIL [1] 13 20 4524 462 479 4911 508 53 managing [1] 81
182224 isnt [6] 1618 2513 31910 3711 22 571417 621014 631213 64 manner [1] 6715
important [5] 1324 502 5317 57 4419 281320 653 many [9] 413181818 725 1025
16 6416 isolation [1] 2020 laws [1] 306 2618 322 581
importantly [1] 257 issue [6] 1219 211116 5621 58 lawsuit [14] 1223 15225 4723 margin [1] 6111
Heritage Reporting Corporation Sheet 4 half - margin
73Official - Subject to Review
market [2] 820 2918
massive [2] 5324 545
match [1] 4418
materiality [2] 3423 355
materials [4] 372 426 4413 45
12
matter [7] 113 1716 466 5016
16 515 6417
matters [1] 5814
mean [14] 4111213 64 914 248
251 371 4211 451819 5212
5418 5617
meaning [7] 179 3315 351518
22 64310
means [4] 524 3517 421620
meant [3] 64 223 2910
measure [1] 126
measures [1] 6019
mechanism [2] 4617 6014
member [1] 5325
members [3] 486 5224 539
mentioned [2] 1813 417
mess [1] 453
metaphor [1] 634
metes [1] 1714
method [1] 6715
might [2] 718 6620
mind [2] 523 681
minimum [1] 1524
minute [2] 3722 5124
minutes [2] 523 6320
mission [1] 444
mistake [1] 53
Mister [1] 293
mixed [1] 923
mixing [1] 644
modern [1] 1817
moment [5] 4115 105 3921 65
16
monetary [1] 411
money [14] 41223 820 2413 30
7 541 569 59141423 602 612
15 627
months [1] 389
morning [2] 2017 3116
most [6] 232 257 3316 4722 53
16 551
move [3] 3611 515 535
moving [1] 3623
much [5] 141 2517 3112 395 40
21
multi-country [1] 5211
multilateral [1] 5725
multinational [1] 2911
must [4] 251718 351616
N Nader [2] 341921
narrow [1] 4915
narrower [1] 499
nations [4] 418 397 4011 5412
natural [1] 354
nature [2] 123 2924
necessary [4] 1720 3510 3912
6523
Neder [1] 641
need [7] 1116 306 3124 3268
3712 4318
needed [2] 291 3823
negligence [2] 56711
negotiate [4] 1214 143 2825 67
5
negotiated [3] 115 1220 3914
never [1] 6723
New [1] 2616
next [2] 34 6617
nexus [2] 2517 553
nobody [2] 59 925
Nobodys [1] 6217
non-commercial [1] 85
none [3] 4411 651925
normal [1] 3414
nothing [3] 101 2411 404
notwithstanding [1] 487
Number [6] 242424 2713 3115
4424 6421
numbers [1] 2621
O OAS [4] 113 1221 282224
OBB [3] 2520 5618 587
objective [1] 4914
obligations [5] 332022 409 41
24 6515
obvious [1] 4624
obviously [2] 4710 6721
occurred [2] 2622
occurs [1] 2519
October [1] 111
Office [1] 686
officers [2] 214 2220
official [1] 215
officials [2] 192021
often [1] 5917
Okay [5] 512 2323 24518 467
old [1] 187
once [2] 4315 4620
one [47] 41823 5118 6217 819
1317 14369 1622 173 1868
1113 191218 211116 2424 25
10 273 3013 3118 3618 3812
4014 4313 4722 4823 4925 50
67 54613 5512 6015 64717
65615 6624 67319 688
ones [1] 329
one-way [1] 225
ones [1] 582
only [8] 423 62 2116 225 2810
296 417 6510
open [1] 3117
opening [1] 267
operating [1] 6216
opinion [4] 69 1624 3424 5617
opponents [2] 321 61
opportunity [1] 143
opposed [1] 554
opposite [3] 417 1345
oral [7] 114 2259 37 2010 337
oranges [1] 644
order [6] 292 306 3823 4620 47
15
ordered [1] 5718
Ordinarily [1] 296
ordinary [2] 610 117
Organization [16] 1124 1421 19
321 372021 4020 4118 4622
477 4819 519 5223 5824 623
organizations [1] 2614
organizations [56] 31218 422 7
2225 824 101421 1111422
214 2221 232 2518 261923
281319 3120 3222 3323 3711
4010 4219 4427 4851424 49
17 5018 5141222 52611 53
121724 5712 596 609 6114
6212 6318 6521 661423 67
14 68410
original [2] 1118 203
originally [1] 1616
other [41] 421 6225 77 8621
23 95 13125 141019 1715 18
21 1924 2113 224 23312 24
16 2912 3212 3446 3622 39
20 441114 4511 469 4723 50
22 5221 6315 64918 657810
664 688
others [2] 1221 324
otherwise [2] 3517 408
ought [5] 813 161 3624 5321
6310
ourselves [1] 578
out [19] 6810 1413 2416 2813
4089 4325 449 5122 5411 55
9 581015 5977 616 656 676
over [7] 1620 3024 3525 4319
21 542324
overall [2] 4916 533
override [1] 5318
own [10] 615 12131317 1518
2815 5311 6011 6745
P pm [1] 6822
package [1] 411
PAGE [5] 22 3420 3717 4113
481
papers [1] 6414
part [5] 1219 1411 2122 4322
564
Parte [1] 1514
particular [6] 916 178 341820
362 5624
particularly [1] 2118
partly [1] 1120
parts [1] 5914
party [5] 2724 2923 3011113
passage [2] 416 4314
passed [5] 525 813 1316 452
6613
past [3] 41215 92
path [1] 5022
pathway [1] 156
pathways [3] 119 1721 181
pay [2] 5324 545
people [4] 369 5013 5718 6014
percentage [1] 2812
perfect [1] 183
perform [1] 6522
performing [1] 661
perhaps [1] 3110
permissible [2] 623 1321
person [3] 2320 4316 6120
persons [2] 5114 568
pertinent [1] 1618
Peru [1] 1514
petard [1] 6012
Petitioners [10] 141923 24814
38 201219 6322
phrase [1] 2020
pick [4] 164 2015 376 629
picks [1] 281
pile [1] 627
piracy [1] 6425
place [3] 4712 546 6517
plain [2] 314 1913
plaintiff [1] 311
plaintiffs [1] 6115
plant [1] 6121
plants [1] 6814
please [3] 310 2014 3310
point [17] 1718 281222 297 34
19 35111 377 4023 501924
524 53814 551 641216
points [8] 166 3115 3945 504
6324 6511 676
policies [1] 142
policy [9] 1079151516 1418
621923 6511
political [1] 1418
politically [1] 1423
position [5] 1525 1822 4610 66
810
possibly [2] 38510
potential [1] 6715
power [2] 249 6121
powerful [1] 613
practical [2] 101920
practice [1] 296
precisely [1] 3718
prescribe [2] 495 533
prescribed [1] 4716
prescribes [1] 3311
present [1] 324
presented [1] 2515
President [9] 55 1225 136 225
24 2313 243 3410 4619
Presidents [3] 1212 2214 475
presidential [4] 2123 22411 66
11
pressure [1] 446
presumptively [1] 252
presupposes [1] 4714
pretty [1] 3022
principal [1] 1113
principle [1] 614
principles [1] 5513
Heritage Reporting Corporation Sheet 5 market - principles
74Official - Subject to Review
prior [1] 65 10 394 441225 4722 512 61 397 4510 5111 57212123 seen [1] 1520
private [12] 81421 2724 2912 23 respectfully [3] 366 373 4510 self-policing [1] 614
182223 3011113 5915 6818 reams [1] 61 Respondent [4] 1725 211 338 Senate [6] 123 41111516 4224
privileges [4] 233 4622 4848 reason [17] 109 1891012 1910 Respondents [1] 269 5117
probably [3] 815 93 5813 23 2212 3222 3319 4615 511 Respondents [2] 2112 236 sense [5] 183 221 247 3317 38
problem [8] 911 137 1420 3711 8910 541521 6816 response [3] 918 4024 5410 6
564 601720 6720 reasons [7] 1621 173 517 5417 responses [1] 2419 sensitivity [1] 4025
problems [2] 149 5516 181923 responsive [1] 1115 separate [2] 818 5113
process [4] 46511 479 6023 rebuild [1] 444 rest [1] 206 serious [3] 2511 263 6111
procure [1] 144 REBUTTAL [3] 212 206 6321 Restatement [1] 5119 set [3] 218 441 499
profit [1] 820 receive [3] 2222 2310 5224 restrictions [1] 304 sets [1] 212
programs [1] 825 received [1] 234 restrictive [8] 117 265 297 36 setting [1] 176
project [1] 5924 receiving [1] 4818 1124 3713 3922 5513 settled [2] 3315 3515
projects [4] 821 555 6016 6818 reciprocal [1] 4818 result [1] 636 settles [1] 2021
promised [1] 448 reciprocity [3] 4811 521021 retroactive [2] 131821 several [1] 211
property [1] 3821 reconsider [1] 3625 retroactivity [1] 1319 shall [4] 4619 486 492225
proposition [2] 4318 6419 Red [1] 5823 retrofit [1] 4418 shouldnt [4] 91620 511 5421
protection [1] 2624 redirect [1] 5323 reverse [1] 333 show [1] 4723
protections [2] 591920 redress [1] 3218 Rights [2] 655 666 shows [1] 231
prove [1] 3825 reduce [2] 3410 476 risk [1] 5710 side [20] 62625 8619 95 131
provide [9] 232 2923 3321 37 refer [3] 415 1619 2114 ROBERTS [9] 33 207 334 522 25 1419 1924 3215 344 3920
19 387 39111 4222 433 reference [10] 159 165 1719 18 5425 5616 576 6318 6820 4414 4511 469 5022 6418 65
provided [2] 2216 3817 11 1911 219 5055 6420 652 robust [2] 5919 6013 811
provides [2] 2024 3822 referenced [2] 611 185 roll [1] 226 sides [3] 1410 1821 4724
providing [3] 3416 38316 referential [1] 2113 roll-back [1] 2124 signed [1] 3910
provision [16] 3141723 116 17 referred [1] 2120 ruinous [1] 6625 significant [3] 4924 5815 626
6 2123 222614 2311219 28 refers [3] 323 167 2312 rule [13] 322 1425 1511 1757 similar [1] 487
16 4225 483 501 regard [2] 2567 20 1925 212 2610 351213 65 similarly [1] 474
provisions [8] 1320 212814 34 regardless [1] 2514 1 683 simply [4] 528 554 5625 6325
7 49521 5010 regiment [1] 1222 rules [4] 1919 2219 3414 6616 single [1] 4316
public [2] 825 6819 regimes [2] 6422 652 Russians [1] 4421 sitting [1] 1813
punitive [1] 6118 regular [1] 686 S situation [10] 611 1323 161 18
purpose [9] 46 101112161619 regulating [1] 813 4 457 479 4815 521822 625
111820 3318 regulation [1] 725 safer [1] 102 situations [1] 498
put [10] 712 122 292 4415 4711 regulations [1] 305 Samantar [1] 4525 slip [2] 2613 687
531123 5424 5921 Rehnquist [1] 3425 same [22] 3121618 721 1299 so-called [1] 6720
putting [1] 4422 reintroduce [1] 1420 11 1559 1919 3324 3916 422 soft [2] 5515 635
Q rejected [1] 624
related [1] 377
10 433 451317 49182225 54
16 653 solely [1] 354
Solicitor [4] 120 113 676 685 quasi-sovereign [1] 3018 Relations [1] 5120 San [2] 5115 548 sometimes [6] 1113 166 1816 question [13] 71112 107 1122 relief [2] 41112 satisfy [1] 6722 194 4545 1425 164 1822 2421 2514 34 remain [1] 1311 save [1] 205 somewhat [1] 6415 13 4517 4721 559 remains [1] 137 saying [11] 98 292024 3811 40 somewhere [1] 2622
questions [6] 78 109 1317 18 remedial [1] 6019 15 4317 5217 5511 5610 5923 sorry [2] 1921 2319 17 333 436 remedy [2] 62223 6516 sort [10] 1323 26811 27222325
quintessential [1] 2611 Remember [7] 1112 128 1411 says [17] 621 95 176 191820 2925 30811 6716 quite [9] 45 111519 299 4120 4324 521 538 5716 357 3717 4116 421224 4618 sorts [2] 2717 6125 4714 4915 503 5114 remotely [1] 4317 48319 492125 541112 SOTOMAYOR [16] 1218 1359
quo [2] 4513 removing [1] 3025 scholars [1] 4114 1112 146 2617 2726911 345 quotes [1] 4115 renovated [1] 2613 scientific [1] 83 401619 4721 662
R repeat [1] 633 scope [3] 3814 4916 5214 south [1] 3211
raised [1] 1219
range [2] 2622 4816
ratchet [1] 225
rates [1] 820
rather [4] 92121 205 267
ratification [2] 4013 4112
ratified [1] 407
ratify [2] 3918 416
read [3] 372 52716
reading [2] 2019 354
real [1] 5710
really [12] 54 9202224 2020 37
reply [2] 618 646
report [10] 123 41111516 4224
511517 54710 6022
request [1] 3613
require [3] 2819 4610 5625
required [2] 1819 6518
requirement [2] 303 553
research [2] 844
reserving [1] 1912
residents [1] 3216
resolution [1] 82
resources [3] 53101320
respect [10] 215 372424 3813
second [8] 52 72 103 168 18
12 2325 3510 4920
Secondly [1] 679
Secretaries [1] 6222
section [17] 141212 1612 1915
16 201824 21101011 221315
2410 331 343 4616 4725
sector [2] 81421
see [10] 9142223 2118 3221 39
6 451 546 5911 6124
seeking [1] 3217
seem [1] 5624
seems [2] 102 2416
Sovereign [11] 320 9152125 19
6 2719 3041525 4320 5219
sovereigns [8] 197 302 4825
511113 527924
special [6] 88 1024 115 1219
371415
specialized [1] 3819
specific [6] 1619 176 1811 56
20 571 6410
specifically [1] 5411
spending [1] 91
spent [1] 569
stages [1] 4022
Heritage Reporting Corporation Sheet 6 prior - stages
75Official - Subject to Review
stand [1] 6414
standard [20] 33111625 3411
24 361113162123 4318 4612
471617 4912 5344 5422 62
15
standards [7] 4956 59222225
60310
Stanford [1] 118
start [5] 521 15711 3412 6324
started [1] 1522
Starting [2] 321 78
State [23] 55 7141518 9716 18
25 198 2114 2823 3525 3610
14 3922 402 4422 4545 4611
471 54913 6223
statement [1] 378
STATES [39] 111522 27 418
11312 2011 25219 2620 271
3111 3324 3652021 378917
21 3816 391618 42210 4815
16 4919 514 5218 5318 5547
11 562 6220 68811
States [1] 6225
status [5] 3523 4513 5110 54
18
statute [32] 47 525 74 101212
129 167791111 35616 3715
382823 46152124 4819 49
21 5067 533 5512 62218 63
25 642425 654
statutes [2] 3716 509
statutory [13] 323 51922 176
3317 3415 359 4720 501 58
22 6422 6529
Steamboat [2] 61724
step [1] 3510
steps [2] 723 5620
still [2] 137 5224
stilted [1] 1815
stood [2] 367 374
streets [1] 2616
stronger [1] 2517
structural [1] 4719
structure [4] 315 2022 2122 47
12
stuck [1] 910
stuff [1] 75
subbed [2] 6245
subcategory [1] 4920
subject [5] 12111314 3223 54
13
submit [3] 1410 155 615
submitted [2] 682123
subsection [5] 19181820 2022
subsequently [1] 1615
substantiate [1] 3810
substantive [4] 3325 471617 53
4
suddenly [1] 3025
sue [3] 3211 611622
sued [4] 232022 3220 604
suggest [3] 344 366 639
suggested [1] 6217
suggesting [1] 5023
suggestion [2] 364 6717
suggestions [1] 1417
suing [2] 611920
suit [18] 312 41 524 6412 72
1314 15311 215 233 251322
25 312124 3223 606
suits [6] 312224 321131619
support [1] 4114
supporting [3] 122 28 2012
supports [1] 536
SUPREME [2] 1114
surrounding [1] 4314
Sutherland [2] 613 1725
sweep [2] 724 258
sweeping [1] 6419
Switzerland [1] 98
system [2] 4325 4712
systems [1] 5918
T talked [2] 6625 686
talks [3] 811 6418
tandem [2] 515 535
target [1] 6114
Tate [6] 361819 3921 403 437
464
tax [1] 3821
tells [1] 531
tense [1] 324
Tenth [1] 1814
term [3] 410 64310
terms [1] 643
terms [5] 3314 351419 47419
test [2] 1521 6722
Texas [1] 6814
text [16] 31421 51922 191315
15 2018 3313 352235 4720
4812 6325
textual [1] 75
themselves [2] 616 6710
theory [2] 1224 3919
theres [23] 920 181 1910 2016
2111 2622 3118 359 363 403
12 446 4715 4923 5522 5718
581417 601719 6479 671
therefore [3] 342 3624 6316
theyve [2] 3715 4417
thinking [3] 425 4323 5421
third [3] 913 231725
third-party [1] 677
thirdly [1] 1215
three [2] 218 3720
tie [1] 1715
tied [1] 1016
today [5] 1917 2115 236 3710
4019
together [1] 539
took [1] 1718
tort [8] 5325 545 611 622 6423
67911 686
tortious [1] 261
towards [1] 3623
Trade [1] 3720
traditionally [1] 3111
transaction [3] 2925 3011 3210
transactions [1] 814
Treasury [1] 6223
treat [4] 1216 3323 432
treated [4] 3324 398 42210
treatise [2] 613 1725
treatment [7] 4219 48131418
491822 6814
treaty [17] 121417 332022 381
2121324 4124 422122 4311
597 6515 665
tried [1] 497
true [9] 45 721 2119 369 3725
3813 401 496 5416
Truman [1] 1825
Trump [1] 6614
try [4] 1816 406 444 5819
trying [7] 3023 3225 4324 4414
17 4915 532
tuberculosis [1] 5825
tune [1] 4825
turn [2] 104 1117
turning [1] 1416
two [15] 416 518 77 1317 1621
17321 181 2025 2113 49323
535 6413 671
type [2] 15325
types [1] 5723
U UN [16] 1013 1220 381819 39
10131424 40717 4121717 51
16 549 664
US [5] 321618 3420 382 5322
ultimately [1] 616
un-developed [1] 5917
unanimous [1] 3425
uncertainty [1] 5816
under [22] 319 118 1224 1424
22514 26524 322 3515 382
18 398 4119 4620 501 569 57
13 617 6221418
understand [2] 1821 261
understanding [1] 658
understates [1] 579
Understood [4] 2417 299 3713
4121
undertaken [1] 386
UNITED [33] 111522 27 1112
2011 2519 262025 3111 365
2021 378917 381516 39718
4011 4816 5218 5318 5412 55
4711 562 622025 68711
unless [2] 3516 5916
unlike [1] 5818
unlikely [1] 5518
until [3] 389 3919 4012
up [18] 44 923 164 2015 2225
281 322 37771023 383 441
717 5925 603 629
urge [2] 1914 667
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uses [2] 178 3514
usual [1] 295
V various [1] 6517
vast [1] 258
Verlinden [1] 4525
VERRILLI [25] 124 210 33679
3412 363 401823 42813 43
11 4591618 468 492 5215 55
621 56313 5747 641
version [1] 6125
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virtual [1] 3312
virtually [22] 331521 34117 36
1622 3817 391151623 4122
4223 433 462 4717 4817 52
20 5720 621113 6518
vitally [1] 502
W waive [7] 917 2313 24310 3121
2124
waived [1] 324
wanted [4] 1711 19125 231
wants [1] 6313
War [1] 446
Washington [4] 1102124 583
wastewater [1] 6814
way [29] 6920 1216 1322 1421
157 1615 172325 2416 2516
21 3446 3822 3967 423515
4913 5216 5620 5713 5912 62
21 6537 6818
ways [3] 211 2211 671
wealth [1] 196
website [1] 811
Wednesday [1] 111
well-established [1] 3512
whatever [1] 2311
wheres [1] 571
Whereupon [1] 6822
whether [7] 1321 156 2914 34
22 361 3825 6412
whole [4] 2025 3818 411 5817
wide [1] 3814
will [11] 311 3816 431921 5021
5224 551515 578 635 6618
win [2] 5889
wire [1] 3423
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within [5] 8916 106 369 562
Woods [2] 4325 441
word [11] 48101415 522 610
1589 1789 4014
words [5] 128 224 2912 5221
6520
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616 63715 6811
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World [13] 81722 2716 283 30
Heritage Reporting Corporation Sheet 7 stand - World
76Official - Subject to Review
2224 324 3720 44555 5823
5915
worry [1] 5514
write [1] 674
writes [1] 174
wrote [2] 4910
WTO [1] 3812
Yyear [1] 6423
York [1] 2616
Heritage Reporting Corporation Sheet 8 World - York
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and said treat us like foreign governments
Give us immunity as Congress put it in a
Senate report of a governmental nature And
so what did Congress do It gave them exactly
what they asked for It said were going to
treat you as a default measure like a foreign
government
And remember the words of the
statute are same immunity Same immunity
as is enjoyed by federal governments So were
going to give you the same immunity subject to
the Presidents ability to just -- adjust it
and subject to your own ability and your own
treaty to negotiate for more and subject
thirdly to Congresss ability to give you some
immunity that you dont have even by way of
your own treaty
JUSTICE SOTOMAYOR Can we go to that
issue raised in part The special immunity I
know was even negotiated by the UN I think
in the 1990s and OAS and others but assume
that were in your regiment and Justice Breyer
made the assumption that if a lawsuit came to
us now under your theory and it was limited
immunity that the President or Congress could
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give immunity to the other side
I dont think so
JUSTICE BREYER No its the
opposite
JUSTICE SOTOMAYOR The opposite The
President cant decrease it correct So that
problem still remains with your -shy
MR FISHER Well -shy
JUSTICE SOTOMAYOR Yeah
MR FISHER -- I think it -- it may
or may not remain Justice Sotomayor
JUSTICE SOTOMAYOR Thats my -shy
MR FISHER Certainly we could -- we
would say we can go forward on this suit
because -- because there is no such law
If that law were passed youd have
two questions One is did Congress make it
retroactive And you look to Altmann to think
about how to judge the retroactivity of
immunity provisions And then if it were
retroactive whether that were permissible
But you know were a long way from
-- from that sort of a situation I think the
important thing going forward and this is I
think what the concern is on the other side
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is not so much about this case but about
incentives and policies going forward they
have every opportunity to negotiate in one form
or another or to procure a heightened form of
immunity
And Justice Sotomayor let me say one
more thing to you and Justice Breyer about you
know the idea of the executive branch getting
involved This is one of the problems I
submit with the other sides argument
Remember part of the goal of the FSIA
in the first section of the Act in Section 1602
is to get -- is to get the executive branch out
of the immunity business
Congress made the determination that
it was a bad idea to have every case turning on
individualized suggestions of immunity and
executive branch political policy And so the
other side by importing the common law of
1945 would reintroduce that problem into
international organization immunity in a way
that we dont think would be very good
politically or very workable in the courts
And Id hasten to add that even under
the rule of 1945 if the question were what
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does the executive branch think about any given
lawsuit or any given immunity for any given
type of suit that would just lead you right
back to the FSIA and it would lead you back to
the same conclusion that we submit to you here
So either pathway whether Justice
Breyer you start with the way youve always
looked at cases with the word is and the
word same and the reference canon that Ive
described and say all of those things lead you
to a time of suit rule or if you start with
the law of 1945 and say what was the law in
1945
Well Hoffman and -- in Ex Parte Peru
were clear that the law of 1945 was the
executive branch decides and its not for the
Court -- this is -- Im going to give you the
Courts own language -- its not for the Court
to give immunity where the executive branch has
not seen fit to give it
And if that were the test youd come
right back to where you -- where I started
here which is that the FSIA would control or
at the bare minimum the executive branch
position in this lawsuit on the type of
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immunity that ought to apply in this situation
would control So -shy
JUSTICE GORSUCH Mr Fisher if I can
pick up on Justice Breyers question The
reference canon I take all -- all of your
points but sometimes lets say we have a
statute that -- that refers to another statute
Usually we would look at the second
statute thats being incorporated as of the
time of -- of the adoption of the first
statute Right So if -- if this statute were
to say go look at Section 5 -shy
MR FISHER Right
JUSTICE GORSUCH -- we wouldnt look
at it the way its been subsequently amended
Wed look at it as it was originally enacted in
1945
Why isnt that -- that idea pertinent
here you know when we refer to a specific
law we dont take it to evolve over time
MR FISHER So for two reasons
Justice Gorsuch and one of them if youll
forgive me is going to be something you said
in the Alan Contoe opinion
JUSTICE GORSUCH I was afraid of
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that
(Laughter)
MR FISHER But for two reasons One
is Congress has a choice to make when it writes
legislation It can lock in a given rule by
setting a specific statutory provision and says
thats the rule we want just like if Congress
uses a particular word at the time of the
enactment the meaning of that word at the time
of enactment would be what Congress -- wed
assume Congress wanted
Or Congress could do something
different which is to say look were not
sure exactly of the metes and bounds of the
law Were just going to tie it to this other
area of law as a general matter And thats
what Congress did here It did the latter
So it took an area of law as a point
of reference and said Just use that as the
default rule and then adjust as necessary And
those are just two different pathways Congress
can go down
And they date as I said all the way
back to the First Judiciary Act there in the
Sutherland treatise all the way back to 1904
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and so theres just two different pathways
Congress can go down
And it makes perfect sense I think
in a situation like this especially where you
have a common law doctrine being referenced at
least a common law at the time and one that
was indeed not just any old common law
doctrine but one that was in a great deal of
flux at the time So it made every reason -shy
it made every good reason for Congress to have
a general reference not a specific one
And then the second reason Justice
Gorsuch is the one you mentioned sitting on
the Tenth Circuit which is that as time goes
by it becomes all the more stilted or
antiquated or even foolish sometimes to try to
answer questions in the modern day according to
what some bygone era doctrine would have
required and especially a bygone era doctrine
like this
If I understand the other sides
position correctly basically the question
theyre having -- they would want every federal
court to ask in these cases is what would the
Truman Administrations State Department have
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wanted to do in this case
And when you have things like this
which didnt even -- an organization that
didnt even exist at the time sometimes doing
activities that werent even contemplated at
the time things like sovereign wealth funds
which foreign sovereigns now engage in for
example who knows what the State Department
would have thought then
I think theres every reason then to
fall back on the reference canon And if I can
say one more thing before reserving my time if
you have any doubt about just the plain text
argument Ive given you I would urge you to
compare the text in Section 288a to the text -shy
Section 288d which has the exact dichotomy
that -- that Ive been discussing today
One subsection subsection (a) says
that the same immunity rules apply and
subsection (b) says that foreign officials -shy
Im sorry international organization officials
are entitled to absolute immunity
So this is yet another reason why if
the other side were correct and if Congress had
wanted to lay down the rule they did why would
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they not have just used the absolute immunity
language in subsection (b) of subsection (d)
and that indeed was the original draft of
this act that was discarded
So I could go on but Id rather save
the rest of my time for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Ellis
ORAL ARGUMENT OF JONATHAN ELLIS FOR
THE UNITED STATES AS AMICUS
CURIAE SUPPORTING THE PETITIONERS
MR ELLIS Mr Chief Justice and may
it please the Court
If I could Id just like to pick up
right where my friend left off Theres been a
lot of discussion so far this morning on the
text of Section 288a We agree that the
Petitioners have the far better reading of that
phrase in isolation but I think it really
settles the deal when you look at the entire
structure of the Act
The -- the IOIA doesnt just grant
immunity in Section 288a(b) but it provides a
whole host of immunities and it does it in two
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different ways In several different
provisions the Act sets a fixed rule of
immunity So archives are inviolable and
officers and employees of the organizations are
immune from suit with respect to their official
acts
And then there are a -- a host a
collection of three provisions that set the
immunity by reference to foreign governments
Theyre Section 288a(d) Section 288d(a) and
theres Section 288a(b) the one at issue here
Respondents concede that the
referential language in those other two
provisions do refer to the state of the law as
it is today
Its only the one thats at issue in
this case that they say was frozen We dont
see how that can be and thats particularly
true when you look at the drafting history that
my friend referred to
JUSTICE KAGAN Mr Ellis before you
get to that another part of the structure is
this provision that deals with presidential
authority and thats essentially a roll-back
authority of immunity
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Doesnt that make a lot more sense
that provision if you assume that Congress
meant for there to be absolute immunity In
other words the presidential authority is a
one-way ratchet The President can only under
this provision roll it back It cant increase
it
So to me if I -- if -- if -- if -shy
if the immunity -- if the immunity is less than
absolute you would think that they would have
given the presidential authority both ways
MR ELLIS Sure The reason that
argument doesnt work is because Section 288
the Presidents authority under that provision
doesnt just apply to Section 288a(b) It
applies to all of the immunities provided by
the IOIA
And as I was just describing some of
those are fixed immunity rules that are not
absolute And so for instance the officers
and employees of international organizations do
not receive diplomatic immunity That was a
big deal at the time
And -- and yet the President cant -shy
couldnt grant that up I think what that
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provision shows is that Congress wanted to
provide international organizations at most the
immunity from suit and other privileges of
immunities that foreign governments received
and not more so
And yet Respondents are here today
asking you for exactly that more immunity -shy
JUSTICE BREYER But on that -shy
MR ELLIS -- than foreign
governments receive
JUSTICE BREYER But look whatever
other things it refers to the provision allows
the President to waive immunity not to grant
immunity And your argument is they have
immunity Right
Do I have -- I get this backwards
This is the third time Ive got it backwards
(Laughter)
JUSTICE BREYER Sorry The provision
allows the person to be sued Is that right
MR ELLIS It does allow them to be
sued
JUSTICE BREYER Okay So I was
right I had it backwards the first time but
not the second not the third all right
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(Laughter)
JUSTICE BREYER It allows the
President to waive the immunity
MR ELLIS Thats right
JUSTICE BREYER Okay It doesnt
allow him to grant the immunity
MR ELLIS It does in a sense I
mean -shy
JUSTICE BREYER But the power to
waive the immunity at least in this section
amounts to nothing if they have no immunity
because for example all they do is lend
money
MR ELLIS So -- so a couple -shy
JUSTICE BREYER Thats -- thats -shy
and the other way it seems to work itself out
MR ELLIS Understood
JUSTICE BREYER Okay
MR ELLIS A couple responses to
that Your Honor
JUSTICE BREYER Thats the question
I think
MR ELLIS Glad to be able to address
that Number -- number one just to be clear
we -- they do have a great deal of immunity I
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mean foreign -- international organizations
and foreign states are presumptively immune
And I would agree with almost everything
that -- maybe everything that -- that my friend
said about why the commercial activity
exception even with regard to IFC and -- and
most -- more importantly with regard to the
vast sweep of these organizations is not going
to eliminate immunity
I would add one more is that even a
case like this we have serious doubts I
think -- we think in fact from what we know
this suit isnt going to be able to go forward
regardless of the answer to the question
presented because in addition to having -- to
being connected in some way to commercial
activity there must be a much stronger nexus
It must be based on commercial activity that
occurs in the United States
We think the Courts decision in OBB
makes clear that the way you apply that is to
ask Whats the gravamen of this suit Its
not enough to have some attenuated connection
but whats the gravamen
And the gravamen of this suit as we
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understand it is -- is tortious conduct that
occurred in India injuries that occurred in
India And we dont think -- we have serious
doubts that this is going to be able to go
forward even under restrictive immunity
And so we do not think that what were
doing is opening the floodgates here rather
that the sort of concerns that would be barred
-- cases that would be barred by Respondents
absolute rule of immunity and would be allowed
by ours are -- are sort of quintessential
domestic disputes contract disputes with your
contractor who renovated the building the slip
and fall at the -- at the organizations
headquarters or the driving accident on the
streets of New York and DC
JUSTICE SOTOMAYOR Do you have -- do
you have any idea about how many of these kinds
of organizations are headquartered in the
United States
MR ELLIS I think the numbers are in
the 20 to 30 range Theres about -- somewhere
80-some organizations that have been designated
for protection under IOIA and 20-some that have
-- I think are headquartered in the United
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States
JUSTICE SOTOMAYOR That are
commercial like this one
MR ELLIS No no no No I did
not -- no
JUSTICE SOTOMAYOR Were -shy
everybodys assuming -shy
MR ELLIS Right
JUSTICE SOTOMAYOR -- a floodgate
MR ELLIS Sure no There are -shy
JUSTICE SOTOMAYOR Including Justice
Breyer
MR ELLIS -- there are a number of
development banks but even then even -- even
the development banks even if you talk about
the World Bank its not clear that those
commercial activities are the sorts that the -shy
the FSIA captures with the commercial activity
exception Lending there is to sovereign
governments
And -- and as the Court has been -- as
lower courts have explained that sort of
commercial activity is not the sort that a
private party could engage in So its not the
sort that the commercial activity exception
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picks up
JUSTICE BREYER Well I -- I have the
IFC the IMF the World Bank the
Inter-American Development Bank the Asian
Development Bank the African Development Bank
the International Development Association So
I -shy
MR ELLIS Sure I -shy
JUSTICE BREYER -- Ive got -- thats
only half of them
MR ELLIS Thats -- that -- Im not
sure what percentage that is I want to point
out that some of those organizations -shy
JUSTICE BREYER There are a lot
MR ELLIS -- have their own immunity
provision in the -- in their charter And so
thats what we think -- if you look at the
history thats what -- thats how it has been
dealt with for organizations that require
absolute immunity Weve entered into
agreements
I would point again to the OAS
agreement where the State Department is just
crystal-clear that what OAS did in that
agreement was to negotiate absolute immunity
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because they thought thats what they needed in
order to put their headquarters here
JUSTICE KAGAN But Mister -shy
MR ELLIS We agreed to that and we
said But hey this is not our usual
practice Ordinarily we -- we afford only
restrictive immunity We point to the FSIA
JUSTICE KAGAN Mr Ellis I -- I
guess Im not sure I -- I quite understood what
you meant As to the core lending activities
of these multinational development banks in
other words making loans where private actors
would not make loans do you have a view as to
whether that counts as a commercial activity or
not
Did you say that that would not count
as a commercial activity because theyre making
loans that the -- that the private market would
not make
MR ELLIS No Im -- Im not saying
that its -- that its enough that theyre
making loans that a -- that a private -- they
couldnt find a private party to provide Im
saying if the nature of the loan is such that
its -- its not the sort of transaction that a
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private party would enter into so think about
the IMF that grants -- that lends to sovereigns
and they do so on the requirement that the
sovereign enact certain restrictions -shy
regulations and change their -- their -- their
laws in order to assure that they dont need
the money again
That is the sort of thing thats been
held by lower courts and weve advocated is
not a commercial activity Thats just not the
sort of transaction that a private party can
enter -- enter into Its not just that a
private party didnt Its that -- that no one
-- thats not something that you can do
Thats a sovereign act
JUSTICE BREYER But can you give
me -shy
MR ELLIS Or a quasi-sovereign act
JUSTICE BREYER -- anything to assure
me because when I looked through this list I
thought that there were development banks like
the World Bank which is a pretty big deal as
well as in Asia in Africa were trying to
encourage development all over the world and
suddenly by removing the sovereign immunity
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because the plaintiff will claim this is a
commercial activity
MR ELLIS So -- so -shy
JUSTICE BREYER And youre not
denying it
MR ELLIS And so -shy
JUSTICE BREYER So what is the
assurance that the government can give us that
this isnt going to lead to a lot of lawsuits
and this isnt going to interfere with perhaps
activity that the United States traditionally
has been very much in favor of
MR ELLIS Absolutely Let me -- let
me give you a couple things I think weve
given you a number of -- of points already this
morning as to why we dont think the floodgates
are going to open
If -- if theres one more Ill say
just look at the -- the charter of these
organizations Look at the IFCs charter
They already waive suit waive immunity for
suits going directly to their core activities
They -- they in fact indicate that they -shy
they need to waive suit in these suits
And so I -- I think when youre
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talking about what are the suits that are going
to come up under commercial activity many of
them are already going forward because the IFC
and the World Bank and others have waived their
immunity
JUSTICE GINSBURG And they need to
because
MR ELLIS They need to because no
ones going to enter into a financial
transaction with them if they -- they know they
cant sue if it -- if it goes south
The other thing -- I want to also
focus the Court on the -- on the suits that we
know are not going to go forward on the
absolute immunity side Were talking about
suits by -- by US citizens and residents
about domestic conduct and theyre seeking
redress in US courts
These are the suits that foreign
governments are -- are able to be sued on and
dont have immunity And we dont see any
reason why international organizations should
not also be subject to suit in those
circumstances and we think thats exactly what
the Congress was trying to do when it enacted
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Section 288 in 1945
If there are no -- no further
questions we ask the Court to reverse
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Verrilli
ORAL ARGUMENT OF DONALD B VERRILLI
ON BEHALF OF THE RESPONDENT
MR VERRILLI Thank you Mr Chief
Justice and may it please the Court
The IOIA prescribes a standard of
virtual absolute immunity that is fixed and not
evolving We know that because the text
incorporated common law terms that had a
settled meaning of virtually absolute immunity
and because a fixed standard makes the most
sense in light of the statutory context and
purpose
Now the reason that Congress enacted
the IOIA was to fulfill treaty obligations that
committed us to provide virtually absolute
immunity Those treaty obligations did not
commit us to treat international organizations
the same as foreign states were treated They
committed us to the substantive standard of
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virtually absolute immunity
And therefore if -- if -- if the
language in section 288b is interpreted in the
way my friends on the other side suggest -shy
JUSTICE SOTOMAYOR So why didnt
Congress say that the way it did in the other
provisions of this Act And if it intended
that in no change it could have said it and
given the very exception it gave which is that
the President or the executive could reduce
immunity which was the standard at the time
MR VERRILLI So let me start with
the basic question We think if the Court
applies the normal rules of construction that
it applies in statutory interpretation cases
that Congress did say that it was providing
virtually absolute immunity
And I think a case in particular that
I would point the Court to is the Nader
decision 527 US and in particular to page
21 of the Nader decision Thats a case -shy
that case of course was about whether mail
fraud and wire fraud incorporated a materiality
standard This is an opinion by Chief Justice
Rehnquist unanimous for the Court on this
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point The Court said first we look to the
text of course and when looking to the text
if we -- if -- and in looking to the text
based solely on a natural reading of the full
text materiality wouldnt be an element of the
fraud statute
And then the Court says But that
does not end the inquiry because in
interpreting statutory language theres a
necessary second step And this is -- Im
coming to the point that I think governs here
which is that it is a well-established rule of
construction a rule of construction that
where Congress uses terms that have accumulated
settled meaning under the common law a court
must infer must infer unless the statute
dictates otherwise that Congress means to
incorporate the established meaning of those
terms Now the -shy
JUSTICE GINSBURG What about the
argument that there wasnt an established
meaning in -- what was it -- 1945 that it -shy
the -- the status of the immunity was in flux
It had been absolute but then we were going
over -- the State Department was advising the
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court whether immunity should be given in a
particular case
MR VERRILLI Theres a bit of a
suggestion to that effect in the brief of the
United States Your Honor but I would
respectfully suggest that is not a fair
characterization of where things stood in 1945
at all
It is true that some people within the
State Department in 1945 thought that immunity
should move to a more restrictive standard but
the Justice Department would not even advance
that standard in this Court at the request of
the State Department and this Court did not
describe the immunity as being in flux This
Court said the standard was virtually absolute
immunity
If one looks even in 1952 at the Tate
Letter the Tate Letter didnt say the law was
in flux in the United States It said the
United States was hewing to the standard of
virtually absolute immunity but other
countries were moving towards a standard of
restrictive immunity and therefore we ought
to reconsider what were doing
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So I just -- I mean the Court can
read these materials for -- for itself but I
just respectfully do not think its a fair
consideration of where things stood in 1945 at
all
And then if I could Id like to pick
up on a related point that came up in the brief
of the United States Its another statement
in the brief of the United States and it came
up in argument today that look this really
isnt a problem because for those organizations
that need immunity that goes beyond the -- the
restrictive immunity weve always understood
that they get -- they can go get a special
statute and theyve gone and gotten special
statutes
The United States says on page 27 of
its brief precisely because the IOIA didnt
provide that level of immunity they give these
three examples IMF World Trade Organization
and Organization of American States
Id like to take a minute and go
through each of them because it doesnt hold up
with respect to each of them With respect to
the IMF for example it is true the IMF you
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know it has a -- has a treaty There was a
statute that gave that treaty effect under US
law which ended up providing for absolute
immunity
But it cant possibly be that that was
undertaken based on any sense that the IOIA
didnt provide that level of immunity because
the IMF statute was enacted in July of 1945
and the IOIA wasnt enacted until five months
later So it cant possibly substantiate what
the government was saying
If one looks at the WTO treaty it is
true with respect to that treaty that it
committed us to a very wide scope of
immunities It said that the United -- that
the United States will commit to providing all
or virtually all of the immunities provided
under a whole different UN convention the
UN convention on specialized agencies
Now that convention has all kinds of
tax immunities and property immunities that go
way beyond what the IOIA provides So of
course they needed another statute in order to
make those treaty commitments That doesnt
prove anything about whether anybody thought
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that the IOIA failed to provide virtually
absolute immunity
In fact the historical evidence I
think really to the extent it points in any
direction it points very much more in our
direction And the best way to see that is
with respect to the way the United Nations was
treated under -- by the executive branch in
this country
Now we signed the UN charter in
1945 committed us to provide what the charter
describes as the necessary immunities Then
the UN Convention on Immunities was
negotiated in 1946 which said that the UN
should get virtually absolute immunity Not
the same immunity as foreign states virtually
absolute immunity
Now the United States did not ratify
that convention until 1970 So on the theory
that my friends on the other side have from
the moment of the Tate Letter in 1952 when
foreign state immunity became restrictive and
not virtually absolute anymore we were in
violation of the commitment we made in the UN
charter
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Now if that was true you would
certainly expect the State Department A to
address it in the Tate Letter but theres
nothing in there Its a classic case of the
dog that didnt bark And B you would expect
them to try to do something about it like get
the UN Convention ratified immediately
because otherwise we were going to be out of -shy
out of compliance with our obligations to the
granddaddy of all international organizations
the United Nations
But theres not a -- from 1952 until
the ratification of the Convention in 1970 you
cant find one word by anybody in the executive
branch ever saying that What you do find -shy
JUSTICE SOTOMAYOR What commercial
activities was the UN doing at that time
MR VERRILLI Well -shy
JUSTICE SOTOMAYOR I know today its
a very different organization but its not
clear to me that there was much going on that
was commercial at its initial stages
MR VERRILLI I take that point Your
Honor but what I would say in response is that
there was a very great deal of sensitivity
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about the whole package of -- of immunities
that were available to the UN and its
diplomats and its -- and its workers
And there was concern all along from
1952 to 1970 that -- that -- where the
executive was urging Congress to ratify the
convention but the only things ever mentioned
were the diplomats -- immunities for diplomatic
individuals
And then when you get to 1970 and you
actually look at the Senate report accompanying
the ratification this was not in our brief
but its at page 31 of the brief of the -- of
the scholars who filed the brief in support of
us It quotes the Senate report from 1970 and
what the Senate report says is were not
granting the UN any -- the UN as an
organization any immunity it didnt already
have under the IOIA
So as late as 1970 it was just quite
clear that everybody understood the IOIA
conferred virtually absolute immunity And of
course thats because it was -- it was enacted
to comply with our treaty obligations
It wasnt enacted to make sure that
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come what may that international organizations
would get treated the same as foreign states
That is -- you know thats the best way to
think about it is its just a completely
anachronistic way of thinking about the body of
materials in front of you
JUSTICE KAGAN But even what you just
said Mr Verrilli it wasnt enacted to make
sure that foreign organizations would get
treated the same as foreign states
I mean thats exactly what the
language of the thing says
MR VERRILLI Well so I guess a
couple of things about that I think the right
way to think about the language Justice Kagan
is that it was a means to an end in 1945 when
it was enacted
It was not the end in itself to assure
equivalence of treatment come what may It was
the means by which Congress ensured that it
would fulfill its treaty commitments which were
-- and those treaty commitments were to provide
virtually absolute immunity
And we know the Senate report says
were enacting this provision to fulfill our
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treaty commitments And our treaty
commitments again were not to treat them the
same They were to provide virtually absolute
immunity So -shy
JUSTICE KAGAN Do you think it was -shy
you answered Justice Ginsburgs questions about
how far we were from the Tate Letter in 1945
but do you think it was inconceivable to
Congress that the common law of immunity would
change
MR VERRILLI Well I -- I -- I cant
say that it would be inconceivable to anybody
but what I can say is if one looks at the
debates surrounding the passage of the IOIA
is once again its a dog that didnt bark
You cant find a single person
anywhere saying anything remotely like the
proposition that we need to adopt a standard
that will evolve over time because we have a
concern that foreign sovereign immunity law
will evolve over time
That just was not any part of
anybodys thinking at that time They were
trying -- you have to remember this is coming
out of the Bretten Woods system We have
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Bretten Woods We set up all these
organizations
They have a -- they have a desperate
mission in front of them to try to rebuild the
world -- the world after the carnage of World
War II Theres a lot of pressure on Congress
to get these organizations up and going and
give them the immunity we promised them so they
can go out and do their work Thats what led
to the enactment of the IOIA
It was none of these other things as
I said I really think if you look at the
historical materials its the -- the gloss
that my friends on the other side are trying to
put on it is completely anachronistic
Theyre taking a different concept
that theyve come up with now and trying to
retrofit the historical facts to match it and
it just isnt right
JUSTICE BREYER Is that -- is that -shy
the Russians at that time 45 and so forth
were putting all these businesses into state
entities So my guess is there were -- there
were a number of cases and what I thought I
heard Mr Fisher say is if we really go back
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and look at this well see that the status quo
before this passed was not absolute immunity
but the status quo was a kind of mess where
sometimes the State Department would say give
them immunity and sometimes the State
Department would say not
Now what is the actual situation as
far as youve been able to find it
MR VERRILLI Well I dont -shy
respectfully with respect to my friends on the
other side I dont think thats a fair
characterization of the historical materials
JUSTICE GINSBURG Thats the same -shy
the answer you gave to me is the answer you
would give to Justice Breyer
MR VERRILLI Yes
JUSTICE GINSBURG Same question
MR VERRILLI Yes I mean its just
not there I mean look at what this Courts
cases said This Courts cases didnt say
anything like that
The -- the -- the governments briefs
to this Court didnt say anything like that
When this Court has looked back on the law in
Verlinden and in Samantar it hadnt said
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anything like that It said the standard was a
common law standard of virtually absolute
immunity
And thats in fact how the Tate
Letter describes it too And then as a process
matter -shy
JUSTICE BREYER Okay I got it
MR VERRILLI -- my friends on the
other side have made this argument that well
our position would also require you to go back
to the process of the State Department making
an ad hoc case-by-case determination but
thats wrong too
And thats clear on the face of the
statute that its wrong And the reason -- and
-- and thats right in Section 288 This
creates an entirely different mechanism
What the -- what the IOIA says is that
-- that the President shall have the authority
under executive order once Congress has
enacted a statute to grant an international
organization the privileges and immunities
And if you look at the face of the
statute its obvious that they are granted on
a categorical basis in gross by an executive
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order not on a case-by-case basis by the State
Department when -- when a lawsuit is -- or when
a -- when a lawsuit is filed
And then similarly in terms of the
Presidents authority as to an executive order
to reduce or eliminate the -- the immunity of
an international organization that -- its -shy
again its completely different than the
situation that -- than the common law process
at work So obviously Congress made a
judgment that it was going to put a different
structure and system in place
And the fact that Congress did that I
do say -- I do think quite clearly presupposes
that theres a -- the existence of a
substantive standard being prescribed And the
substantive standard as I said is virtually
absolute immunity
And then in terms of the structural
indicators in the statutory text going back to
a question you asked Justice Sotomayor I
really think the most telling one to -- to
show you I think why my friends on the other
sides case is completely anachronistic and
were correct -- is Section 288f which you can
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find at page 6a of the appendix to the blue
brief
That provision says that the
privileges exemptions and immunities of
international organizations and then of -- of
members and employees et cetera shall be
granted notwithstanding the fact that similar
privileges exemptions and immunities granted
to a foreign government et cetera et cetera
may be conditioned upon the existence of
reciprocity by that foreign government
So right there in the text it
decouples the treatment of international
organizations from the treatment of foreign
states Even in a situation in which the
United States would not grant the full range of
virtually absolute immunity because it wasnt
being -- receiving reciprocal treatment this
statute says the international organization
gets it So -shy
JUSTICE GINSBURG How do you deal
with the argument that we just heard that we
can compare 288a on the one hand which -shy
which keeps the international organizations in
tune with foreign sovereigns and 288 -- was it
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b and d
MR VERRILLI Yes I do think that
the -- the differences break down into two
categories Your Honor There -- some of the
provisions do prescribe fixed standards
Thats true But those fixed standards as we
explained in our brief or at least tried to
are always situations in which the IOIA is
conferring a narrower set of immunities on -shy
on diplomats and individuals than the common
law would have at the time
So incorporation of the standard in
the way this 288a(b) did wouldnt accomplish
the objective there because there was -- they
were quite consciously trying to narrow the
overall scope of immunities and not give the
individuals who worked at these organizations
the same full treatment that diplomats got who
-- from foreign states
Now the second subcategory are the
provisions where the -- the statute says that
their -- the treatment shall be the same But
theres two things about that that are
significant
One is it says they shall be the same
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as under another statutory provision And as
we said we think thats vitally important
here We think its quite clear that in
addition to Justice Breyers points about the
reference canon that the reference canon
applies when one statute incorporates another
It doesnt apply when one statute incorporates
the common law And here they were
incorporating statutes
And if you look at those provisions
anyway theyre basically just instructions to
the executive branch when do you fingerprint
the people when theyre coming in What do you
do about that -- this detail or that detail
They dont go to the heart of the
matter at all And the heart of the matter
here is the immunity being conferred on these
international organizations
I just want to make a point about that
and then if I could talk about the
consequences that will ensue I think if we go
down the path that my friends on the other side
are suggesting
I think this is a critical point I
just want to make sure its clear Another
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reason why you shouldnt draw this equivalence
-- and it cant be that Congress really
intended to draw an equivalence between foreign
states and international organizations such
that they would just move in tandem no matter
what -- is that immunity is granted for
different reasons
The reason you give an international
organization immunity is a functional reason
not a status reason Its not about according
the appropriate respect to the sovereigns
because international organizations arent
sovereigns Theyre separate juridical
persons And whats quite clear -- its clear
from the U -- the San Francisco report on the
foundation of the UN its clear from the
Senate report in 1945 its clear from all the
commentators that we discussed in our brief
its clear from the Restatement of Foreign
Relations which weve cited in our brief that
you grant immunity to international
organizations so that they can carry out their
functions effectively And -- and just take -shy
let me take a minute and kind of elaborate on
that because I think its critical
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Remember these are -shy
CHIEF JUSTICE ROBERTS If you dont
mind Im afraid Im about five minutes behind
you here but going -- going back to your point
on 288f you said its there theyre decoupling
the international organizations and the foreign
sovereigns But as I go back and read it
its simply because the -- the foreign
sovereigns have the capability to use
reciprocity and the foreign -- and the
multi-country organizations do not
I dont -- I mean thats the
difference theyre drawing there not something
between the scope of the actual immunities
MR VERRILLI Well I -- well the
way I read it Mr Chief Justice is what -shy
what theyre doing there is saying even in a
situation in which the United States concludes
that it wont afford a foreign sovereign the
full virtually absolute immunity because of
reciprocity in other words were not getting
it back from them even in that situation an
international organization of -- where those
sovereigns are members will still receive the
full level of immunity
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And so I think what that tells us is
that what Congress was trying to do in this
statute overall was prescribe a fixed
substantive standard not a floating standard
where the two things move in tandem So -- and
I -- I do think it supports that
And if I could just go back to the
functional point remember these are
collective bodies and members come together
they make -- they -- they take resources from
each of their own countries They put them
into these organizations They make collective
decisions about how to deploy those resources
And the point of the immunity here is
so that the courts of any country but
especially the host country which for the most
important organizations are going to be here in
the United States cant override the
collective judgments that they make about how
their resources would be deployed and what
conditions they ought to impose et cetera by
the intervention of domestic law in US courts
and cant redirect the funds that are put into
these organizations to pay massive class action
tort judgments because of course the member
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countries are contributing this money because
they believe its going to be put to the use
that the -- for example the development bank
the development bank decides it should be put
to not to pay massive tort judgments
And I think one place you see this
very clearly if you look at the report of the
San Francisco conference about the founding of
the UN the State Departments -shy
Departments response coming -- report coming
out of that conference specifically says this
It says of course the United Nations cant be
subject to the jurisdiction of any one state or
its courts
And its for exactly this reason And
the same thing is true generally Thats why
you give it not for functional reasons -- I
mean excuse me not for reasons of status but
for functional reasons
And I think a key -- another key
reason why you shouldnt be thinking about this
as a standard that evolves evolves now and
over time is that those functional reasons
dont evolve now and over time
CHIEF JUSTICE ROBERTS Well what
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about the point that most of the concerns you
have are going to be dealt with by the
requirement of a nexus to activity in the
United States as opposed to simply abroad
where the projects are funded
MR VERRILLI Yes I was gratified
to hear the United States say that but -- and
-- but I could just -- Ill answer Your Honors
question directly but I want to broaden it out
a little bit because I think what essentially
the United States is saying here is look the
statute leaves one with no choice but to apply
restrictive principles of immunity Youve got
to jump off that cliff but dont worry it
will be a soft landing because the FSIA will
take care of a lot of these problems
And I guess what I would say about
that is in the unlikely event you dont agree
with me I -shy
(Laughter)
MR VERRILLI -- I hope theyre
right But theres no guarantee that theyre
right
JUSTICE BREYER Are the -- are the
lending decisions which may be fairly detailed
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and may include dozens of conditions made
within the United States
MR VERRILLI Well yes I think
thats a big part of the problem and -shy
JUSTICE BREYER Is there -- are there
lawsuits that could say that there was
negligence in determining in a different
country who the persons were or the conditions
under which the money would be spent Is that
an American lawsuit saying what youve done
here is commit the act of negligence or failure
to be a fiduciary here
MR VERRILLI Thats this lawsuit
Thats this lawsuit Justice Breyer Thats
exactly what theyre alleging
CHIEF JUSTICE ROBERTS Well but I
mean is that consistent with our opinion in
the OBB case which I think -- if the complaint
is based the gravamen of the complaint not
specific steps along the way and that was the
issue we dealt with in that case
And I appreciate the fact that its
you know to some extent dependent on the facts
and particular allegations but it would seem
to me to require a lot more than simply the
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specific decisions I think where -- wheres
the gravamen or gravamen however you say it
with whats going on here
MR VERRILLI Well we would
certainly say its India of course
CHIEF JUSTICE ROBERTS Yeah
MR VERRILLI And if -- if we have to
defend ourselves on that basis we will But I
-- but I -- I think it -- it understates the
real concrete risk here And what Id like to
do to illustrate that if I could is first
talk about the organizations that are going to
be exposed in a way that they wouldnt be under
the law
And as Justice Breyer indicated
earlier its important to remember this has
been the law in the DC Circuit for decades
and theres -- and people have ordered their
affairs based on the assumption that there was
virtually absolute immunity
But with respect -- but with respect
to the consequences and the groups affected and
then the types of effects With respect to the
groups affected youve got entities like us
the multilateral development banks And
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Justice Breyers identified many of them
Now the -- the main ones are here
here in Washington DC and theyre making
their decisions here and I think critically
too there are billions of dollars of assets
here
Now were going to make the OBB
argument for sure and I hope we win if we have
to make the argument I hope we win But who
knows how courts are going to come out on that
issue
Were going to have a lot of fighting
about that There are probably going to be
matters of degree Theres certainly going to
be significant disincentives arising out of
that uncertainty
Theres a whole another group of
entities that unlike the banks at least have
articles of agreement where we can try and fall
back on those for alternative arguments of
immunity where their immunity depends entirely
on the statutory grant the International
Committee of the Red Cross the World Health
Organization the fund to fight -- the global
fund to fight AIDS and tuberculosis and
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malaria
They are all entirely dependent on the
IOIA for their immunities and those immunities
are drastically different after this And then
we do have the issue I think with some
organizations that we may even actually now be
out of our -- out of compliance with our treaty
commitments
Now whats going to happen Heres
what I think is going to happen and I think
this lawsuit helps you see it
Now the way -- the basis of this
lawsuit is the following IFC when it loans
money here its loaning money in -- in parts
of the world where private capital wont go
unless we go in there
And very often they have un-developed
legal systems and they certainly dont have
robust environmental protections or labor
protections So what the IFC has done is lien
into those put those kinds of environmental
standards and labor standards into its
agreements saying you want this money to do
this development project these are the
standards that youve got to live up to
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And -- and this lawsuit is that -shy
that the entity that we loan this money to
didnt live up to the standards and its our
fault And so were being sued here
Well its going to create -- if that
kind of a suit can go forward and hopefully it
wont be able to Mr Chief Justice but if it
can its certainly going to create an
extraordinary disincentive for organizations
like ours to lien into those kinds of standards
because were going to be hoist by our own
petard
Now weve also got a robust internal
accountability mechanism where if people think
something has gone wrong on one of our
projects they can come to us and they can say
-- they can say look theres a problem here
And they -- and we investigate We take
internal remedial measures if we find theres a
problem
Well you know the factual basis for
the lawsuit is the report of our internal
accountability process
So if they can just grab that and take
it into court and make it the basis for a class
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action tort lawsuit in which they can make a
claim for all this money its going to create
a powerful disincentive for us not to engage in
that kind of self-policing activity
And I would submit that you know
even if things ultimately work themselves out
under the FSIA and I hope they -- I hope we
dont have to deal with that but even if we
do its going to take a very long time There
are going to be a lot of difficult cases at the
margin There are going to be very serious
disincentives immediately
And conversely you know were a big
fat target here These organizations have lots
of money And of course foreign plaintiffs
want to sue here They can bring a class
action They get liberal discovery They can
get punitive damages They get all of these
advantages by suing here
So instead of suing the person that
actually injured them the power plant in
India they come here and sue us
And I really think what you are going
to see here is that this is just going to
become another version of the sorts of
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foreign-cubed lawsuits that the Court has been
concerned about under the Alien Tort Statute
where the international organization is just
going to be subbed in for the foreign defendant
and its going to be subbed in in a situation
where were going to have a very significant
pile of money
And if I could just close with this
thought -- Im just going to pick up on Justice
Breyers thought -- the law in the District of
Columbia where virtually all these
organizations have been housed are
headquartered has been virtually absent
immunity under DC circuit law for decades
Thats the standard everybody has been
operating on
Nobodys suggested that anything has
gone wrong under this statute that there are
any deleterious policy consequences that the
interests of the United States are adversely
affected in any way In fact if you look at
the amicus brief from the former Secretaries of
Treasury and State they think that the policy
of the government arguing now is going to
disrupt the United States ability to function
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effectively with these organizations
It has all been fine And -- but
theyre asking you essentially to repeat a
metaphor to jump off a cliff And hopefully
it will be a soft landing But we dont know
that And it could easily result in a lot of
disruption to the good work that these
organizations do
And I guess what I would suggest is
that if thats going to happen it ought to
happen through legislation Congress can look
at this Congress can change the law if it
wants to But this has been the law for a very
long time There is no evidence that it has
done anything other than work well
And therefore I think the Court
should affirm the DC Circuit Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Four minutes Mr Fisher
REBUTTAL ARGUMENT OF JEFFREY L FISHER
ON BEHALF OF THE PETITIONERS
MR FISHER Thank you Id like to
make four points and Id like to start with the
text of the statute itself and simply say when
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Mr Verrilli talks about the Neder Doctrine and
the Common Law Doctrine that you look at the
term a terms meaning at the time of
enactment Hes mixing apples and oranges
And I think all the citations in our
reply brief should make it absolutely clear
that theres a doctrine on the one hand that
talks about incorporating a body of law and
theres a doctrine on the other hand about
giving meaning to a specific term Were in
the former camp here
And as to the point about whether the
common law was evolving at the time two
things Well stand on the papers as to the
fact that it was somewhat in flux
But the more important point is even
if it werent in flux it wouldnt matter one
wit because the other side is making a
sweeping proposition which is any general
reference to common law is fixed in time
That would disrupt any number of
federal statutory regimes from the Federal
Tort Claims Act enacted the year after this
statute the Equal Access to Justice Act the
federal governments piracy statute Federal
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Rule of Evidence 501 I could go on and on
with federal statutory regimes that reference
the common law in exactly the same way the
statute does here
The Civil Rights Act of 1866 if you
want one more All of those would come out the
other way from this Courts jurisprudence and
from all the understanding if the other side is
right about statutory interpretation
So I think the only thing the other
side has is they have a bunch of policy points
to make for this Court
Now we dont think they should
control but let me answer them So first as
to our treaty obligations So one about at the
moment of enactment My friend kept saying
that there were various agreements in place
that required virtually absolute immunity
None of the agreements use those
words Instead what those agreements said is
that certain organizations were entitled to
immunity to allow them to perform their
necessary functions Thats a very different
thing than absolute immunity
And its very different because none
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of the organizations involved were performing
Justice Sotomayor commercial activities that
were essential to their core functions not the
UN not any of the other organizations
So we werent in breach of any treaty
rights And if you have any doubt on that I
would urge you to look to the federal
governments position then and now Its not
just a brief filed in this Court
It is the position that four different
Presidential Administrations have taken The
Carter Administration right after the FSIA was
passed the George H W Bush Administration
the Clinton Administration and now the Trump
Administration have all consistently held that
the FSIA rules are incorporated into the FSIA
Next on the floodgates concern I
explained earlier and I hope you will think
about the fact that while the core activities
of the IFC might be commercial activity not
all of the IFCs activities are and certainly
not all the activities of international
organizations are
But let me add one more thing My
friend talked about big lawsuits of ruinous
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liability Well theres two very easy ways to
control that
One is to the extent any claims are
on contracts they can write their own
contracts and negotiate their own contracts
As the Solicitor General points out they can
even deal with third-party beneficiaries in
their contracts if they choose
Secondly as to tort claims they can
and in fact commonly do indemnify themselves
against tort lawsuits In this very case
their agreement indemnifies them against any
judgment and all legal fees
So these organizations have every
manner of method to deal with any potential
liability And in fact they are which sort
of belies the suggestion that they think
theyre absolutely immune from lawsuit
Finally let me say one thing about
the so-called foreign cubed problem or the
facts of this case Now obviously we think
that we would satisfy the gravamen test They
have never made that argument And if they
want to make it we can -- we can have that
conversation in the lower courts
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But bear in mind what youre being
asked to do in this case is to announce a
categorical rule for all cases dealing with
international organizations
So my friend in the Solicitor
Generals Office talked about just regular tort
slip and fall cases and the like in the United
States Let me give you one other thing to
think about
Some international organizations
actually do their work in the United States
The border cooperation -- the Border
Environmental Cooperation Commission does
wastewater treatment plants in Texas and
California
I cant think of any reason why they
would be immune from those infrastructure
projects in a way that no private business or
public government would be
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1206 pm the case
was submitted)
Heritage Reporting Corporation
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1 392151723 4122 4223 433
452 462 4718 4817 5220 57
allegations [1] 5624
alleging [1] 5615 B
1108 [2] 115 32 20 651824 allow [3] 2321 246 6522 back [22] 44 61420 10513 11
1206 [1] 6822 Absolutely [3] 3113 646 6718 allowed [1] 2610 17 154422 172425 1911 226
1602 [1] 1412 Access [1] 6424 allows [3] 231220 242 4425 4524 4610 4720 5247
17-1011 [1] 34 accident [1] 2615 almost [2] 719 253 22 537 5820
1866 [1] 655 accompanying [1] 4111 already [4] 311521 323 4118 backwards [4] 514 23161724
1904 [2] 614 1725 accomplish [1] 4913 alternative [1] 5820 bad [1] 1416
1934 [1] 49 according [2] 1817 5110 Altmann [1] 1318 bank [13] 719 81822 98 2716
1945 [17] 1013 142025 151213 accountability [2] 601423 amended [1] 1615 283455 3022 324 5434
15 1617 331 3522 36710 374 accumulated [1] 3514 American [3] 112 3721 5610 banks [9] 88910 271415 2911
388 3911 4216 437 5117 across [1] 1025 amicus [4] 122 27 2011 6222 3021 5725 5818
1946 [1] 3914 Act [15] 320 6319 1412 1724 20 amounts [1] 2411 bare [1] 1524
1952 [4] 3618 3921 4012 415 422 212 301518 347 5611 64 anachronistic [3] 425 4415 47 bark [2] 405 4315
1970 [6] 3919 4013 415101520 2324 655 24 barred [2] 2689
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1994 [1] 115 activities [11] 8517 195 2717 another [13] 323 144 167 1923 5719
2 2910 3122 4017 662192122 2122 378 3823 501625 5420 basic [1] 3413
20 [2] 28 2622
20-some [1] 2624
2018 [1] 111
21 [1] 3421
27 [1] 3717
288 [4] 2213 331 4616 4825
288a [3] 1915 2018 4823
288a(b [4] 2024 2111 2215 49
13
288a(d [1] 2110
288b [1] 343
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288d(a [1] 2110
288f [2] 4725 525
activity [23] 791820 81015 94
69 2551718 27182325 2914
17 3010 31211 322 553 614
6620
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11
ad [1] 4612
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Administration [4] 66121314
5817 6125
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6
apply [7] 1010 161 1919 2215
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2125
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8 6322
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3 15 2521 507 5512 between [2] 513 5214
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33 [1] 211 adopting [1] 47 area [2] 171618 billions [1] 585
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blue [1] 481
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501 [1] 651
527 [1] 3420
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7 5111 625 1410 1914 2010
2213 2314 337 3521 3710 46
9 4822 5889 6321 6723
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body [4] 32325 425 648
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6 affected [3] 572224 6221 arising [1] 5815 161924 398 4015 5012
63 [1] 214 affirm [1] 6317 Armed [1] 63 breach [1] 665
6a [1] 481 afford [2] 296 5219 articles [1] 5819 break [1] 493
8 afraid [2] 1625 523
Africa [1] 3023
Asia [1] 3023
Asian [1] 284
Bretten [2] 4325 441
BREYER [40] 43 513162022 6
80-some [1] 2623 African [1] 285 assets [1] 585 16 717 817 912 108 1117 12
A agencies [1] 3819
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22 133 147 157 238111923
24259151821 2712 282914 am [2] 115 32
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agreement [4] 282325 5819 67 assuming [1] 277 5524 56514 5715 able [7] 1023 2423 2513 264 32
12 assumption [2] 1223 5719 Breyers [4] 164 504 581 6210 20 458 607
agreements [5] 2821 5923 65 assurance [1] 318 brief [16] 618 115 364 377918 above-entitled [1] 113
171920 assure [3] 30619 4218 41121314 482 497 511820 abroad [1] 554
agricultural [1] 84 attenuated [1] 2523 6222 646 669 absent [1] 6213
AIDS [1] 5825 authority [7] 212425 2241114 briefs [1] 4522 absolute [33] 1922 201 22310
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Alan [1] 1624 available [3] 11810 412 broaden [1] 559 21 34117 3524 361622 383
Alien [1] 622 BUDHA [1] 13
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70Official - Subject to Review
building [1] 2613
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Bush [1] 6613
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Case [35] 34 4189 548 6236
88161718 9162025 14116
191 2117 2511 34182122 36
2 404 4724 561821 671121
6822122
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269 3415 4424 452020 6110
6837
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14 5918 608 6621
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1125
Chase [1] 618
CHIEF [15] 339 20713 3349 34
24 52216 5425 5616 576 607
6318 6820
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Circuit [4] 1814 5717 6214 63
17
circumstances [1] 3224
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325 511414161719 646
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Committee [1] 5823
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17
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Congress [36] 1023 1125 1224
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Department [15] 121 56 917 18
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5316
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Ex [1] 1514
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3725 543
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349
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416 462025 475 5012
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671016
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FINANCE [2] 16 35
financial [2] 814 329
find [7] 2923 401415 4316 458
481 6019
fine [1] 632
fingerprint [1] 5012
first [10] 7123 102 1412 1610
1724 2324 351 5711 6514
FISHER [23] 118 2313 3679 5
12151721 10418 1381013 16
31321 173 4425 63202123
fisheries [1] 81
fit [2] 106 1520
five [3] 818 389 523
fixed [8] 212 2219 331216 495
6 533 6420
floating [1] 534
floodgate [1] 279
floodgates [3] 267 3116 6617
flux [6] 189 3523 361520 6415
17
focus [1] 3213
following [1] 5913
foolish [1] 1816
foreign [39] 3131819 7141518
812 97 1216 19720 219 234
9 2512 3219 3324 391622 42
2910 4320 489111425 4919
51319 52681019 6115 624
6720
foreign-cubed [1] 621
forever [1] 44
forgive [1] 1623
form [5] 1172123 1434
former [2] 6222 6411
forth [1] 4421
forward [8] 131424 142 2513
265 32314 606
foundation [1] 5116
founding [2] 620 548
Four [3] 632024 6610
Francisco [2] 5115 548
fraud [3] 342323 356
friend [6] 2016 2120 254 6516
6625 685
friends [7] 344 3920 4414 4510
468 4723 5022
front [2] 426 444
frozen [1] 2117
FSIA [10] 1411 15423 2718 297
5515 617 66121616
fulfill [3] 3320 422125
full [5] 354 4816 4918 522025
fully [1] 1023
function [1] 6225
functional [5] 519 538 541719
23
functions [3] 5123 6523 663
fund [2] 582425
funded [1] 555
funds [2] 196 5323
further [1] 332
future [1] 102
G gave [5] 517 124 349 382 4514
General [7] 120 322 113 1716
1811 6419 676
Generals [1] 686
generally [1] 5416
George [1] 6613
gets [1] 4820
getting [3] 923 148 5221
GINSBURG [5] 326 3520 4513
17 4821
Ginsburgs [1] 436
give [24] 56 61722 824 1018 11
21 1221115 131 15171920
3016 31814 3719 448 45415
4916 518 5417 688
given [10] 41 15122 175 1914
2211 3115 349 361
gives [4] 31117 812 1116
giving [1] 6410
Glad [1] 2423
global [1] 5824
gloss [1] 4413
goal [1] 1411
Gorsuch [6] 410 163142225
1813
got [9] 510 2317 289 467 4918
5513 5724 5925 6013
gotten [1] 3715
government [7] 127 318 3811
48911 6224 6819
governments [4] 92 4522 6425
668
governmental [1] 123
governments [11] 31319 812 9
1 12110 219 23410 2720 32
20
governs [1] 3511
grab [1] 6024
granddaddy [1] 4010
grant [8] 2023 2225 2313 246
4621 4816 5121 5822
granted [4] 4624 4878 516
granting [1] 4117
grants [2] 824 302
gratified [1] 556
gravamen [7] 25222425 5619
5722 6722
great [3] 188 2425 4025
gross [1] 4625
group [2] 710 5817
groups [2] 572224
guarantee [1] 5522
guess [6] 922 299 4213 4423
5517 639
H
Heritage Reporting Corporation Sheet 3 disruption - guess
72Official - Subject to Review
half [1] 2810 importing [1] 1419 11 595 56101314 591113 60122 61
hand [3] 4823 6479 impose [1] 5321 itself [7] 716 811 116 2416 372 1 6718
happen [4] 59910 631011 incentives [1] 142 4218 6325 lawsuits [5] 319 566 621 6625
hasten [1] 1424 include [1] 561 J 6711
headquarter [1] 1022 Including [1] 2711 lay [1] 1925
headquartered [4] 1022 2619 inconceivable [2] 43812 JAM [2] 13 34 lead [4] 153410 319
25 6213 incorporate [1] 3518 JEFFREY [5] 118 2313 37 63 least [4] 186 2410 497 5818
headquarters [2] 2615 292 incorporated [6] 325 72 169 33 21 leave [1] 420
Health [1] 5823 14 3423 6616 JONATHAN [3] 120 26 2010 leaves [1] 5512
hear [2] 33 557 incorporates [2] 5067 JR [2] 124 210 led [1] 449
heard [2] 4425 4822 incorporating [2] 509 648 judge [1] 1319 left [1] 2016
heart [2] 501516 incorporation [1] 4912 judgment [2] 4711 6713 legal [2] 5918 6713
heightened [1] 144 increase [1] 226 judgments [3] 531925 545 legislation [3] 813 175 6311
held [2] 309 6615 indeed [4] 427 187 203 Judiciary [2] 619 1724 legislative [1] 1119
helps [1] 5911 indemnifies [1] 6712 July [1] 388 lend [2] 423 2412
hewing [1] 3621 indemnify [1] 6710 jump [2] 5514 634 lending [8] 889101623 2719
historical [4] 393 441318 4512 India [4] 2623 575 6122 juridical [1] 5113 2910 5525
history [4] 316 1119 2119 2818 Indian [2] 47 68 jurisdiction [1] 5413 lends [1] 302
hoc [1] 4612 indicate [1] 3123 jurisprudence [2] 523 657 lens [1] 712
Hoffman [1] 1514 indicated [1] 5715 Justice [96] 121 339 4310 513 less [1] 229
hoist [1] 6011 indicators [1] 4720 162022 616 717 817 912 108 Letter [6] 361919 3921 403 437
hold [1] 3723 individualized [1] 1417 1117 121822 133591112 14 465
Honor [4] 2420 365 4024 494 individuals [3] 419 491017 67 156 1634142225 1812 20 level [3] 3719 387 5225
Honors [1] 558 infer [2] 351616 713 2121 238111923 24259 liability [2] 67116
hope [6] 5521 5889 6177 6618 infrastructure [1] 6817 151821 2617 272691111 28 liberal [1] 6117
hopefully [2] 606 634 initial [1] 4022 2914 2938 301619 3147 32 lien [2] 5920 6010
hornbook [1] 1010 injured [1] 6121 6 33410 34524 3520 3612 40 light [1] 3317
hornbooks [1] 43 injuries [1] 262 1619 42715 4356 4420 4513 limited [1] 1224
host [3] 2025 217 5316 inquiry [1] 358 1517 467 4721 4821 504 522 list [1] 3020
housed [1] 6212 insertion [1] 69 16 5425 5524 5651416 576 little [2] 102 5510
however [1] 572 instance [1] 2220 15 581 607 629 6318 6424 66 live [2] 5925 603
I instead [2] 6120 6520
institutions [2] 81823
2 6820
K loan [3] 820 2924 602
loaning [1] 5914 idea [4] 14816 1618 2618
identified [1] 581
IFC [10] 710 8111919 256 283
323 591320 6620
IFCs [2] 3120 6621
II [1] 446
illustrate [1] 5711
IMF [6] 283 302 37202525 388
immediately [2] 407 6112
immune [4] 215 252 6718 6817
immunities [19] 2025 2216 234
instructions [1] 5011
intended [2] 347 513
Inter-American [1] 284
interest [1] 1114
interests [1] 6220
interfere [1] 3110
internal [3] 60131922
INTERNATIONAL [37] 16 3511
17 422 72224 824 1025 1421
1921 2221 232 251 286 3222
3323 4010 421 4621 477 485
KAGAN [6] 2121 2938 42715
435
keeps [1] 4824
kept [1] 6516
key [2] 542020
kind [5] 825 453 5124 606 614
kinds [5] 716 2618 3820 5921
6010
knowing [1] 101
knows [2] 198 5810
loans [5] 2912131822 5913
lobby [1] 1023
locate [1] 1014
lock [1] 175
long [5] 45 1011 1322 619 63
14
look [32] 61315 724 911 108 13
18 168121416 1713 2021 21
19 2311 2817 311920 351 37
10 4111 4412 45119 4623 50
10 547 5511 6017 6221 6311 3815172121 391213 4118 131924 5018 51481221 526 L 642 667 4622 4848 49916 5214 5933 23 5822 623 6622 68410 labor [2] 591922 looked [4] 44 158 3020 4524
immunity [119] 312171820 419 Interpol [1] 83 landing [2] 5515 635 looking [2] 3523 212425 559 9152125 1024 interpret [1] 1017 language [8] 1017 1518 202 21 looks [3] 3618 3812 4313 11672123 1229911161925 interpretation [2] 3415 659 13 343 359 421215 lot [10] 2017 221 2814 319 446 13120 145141721 15219 16 interpreted [1] 343 last [1] 49 5516 5625 5812 6110 636 1 191922 20124 213925 223 interpreting [2] 619 359 late [1] 4120 lots [2] 420 6114 991922 2337131415 2436 intervention [1] 5322 later [3] 4916 3810 lower [3] 2722 309 6725 101125 259 26510 28152025
297 3025 3121 3251521 33 investigate [1] 6018
inviolable [1] 213
latter [1] 1717
Laughter [4] 172 2318 241 55 M
121522 3411117 3523 36110 involved [2] 149 661 20 made [10] 53 1223 1415 18910
15172224 37121319 3847 39 IOIA [21] 31115 11816 2023 22 law [46] 32425 61121 714 82 3924 469 4710 561 6723
215161722 411822 4223 434 17 2624 331120 3718 3869 1056 131516 1419 151212 mail [1] 3422
920 448 4525 463 47618 48 22 391 411921 4314 4410 46 15 1620 17151618 18567 21 main [1] 582
17 5017 516921 522025 53 18 498 593 14 3314 3515 3619 383 439 malaria [1] 591
14 5513 5720 582121 6214 65 ISMAIL [1] 13 20 4524 462 479 4911 508 53 managing [1] 81
182224 isnt [6] 1618 2513 31910 3711 22 571417 621014 631213 64 manner [1] 6715
important [5] 1324 502 5317 57 4419 281320 653 many [9] 413181818 725 1025
16 6416 isolation [1] 2020 laws [1] 306 2618 322 581
importantly [1] 257 issue [6] 1219 211116 5621 58 lawsuit [14] 1223 15225 4723 margin [1] 6111
Heritage Reporting Corporation Sheet 4 half - margin
73Official - Subject to Review
market [2] 820 2918
massive [2] 5324 545
match [1] 4418
materiality [2] 3423 355
materials [4] 372 426 4413 45
12
matter [7] 113 1716 466 5016
16 515 6417
matters [1] 5814
mean [14] 4111213 64 914 248
251 371 4211 451819 5212
5418 5617
meaning [7] 179 3315 351518
22 64310
means [4] 524 3517 421620
meant [3] 64 223 2910
measure [1] 126
measures [1] 6019
mechanism [2] 4617 6014
member [1] 5325
members [3] 486 5224 539
mentioned [2] 1813 417
mess [1] 453
metaphor [1] 634
metes [1] 1714
method [1] 6715
might [2] 718 6620
mind [2] 523 681
minimum [1] 1524
minute [2] 3722 5124
minutes [2] 523 6320
mission [1] 444
mistake [1] 53
Mister [1] 293
mixed [1] 923
mixing [1] 644
modern [1] 1817
moment [5] 4115 105 3921 65
16
monetary [1] 411
money [14] 41223 820 2413 30
7 541 569 59141423 602 612
15 627
months [1] 389
morning [2] 2017 3116
most [6] 232 257 3316 4722 53
16 551
move [3] 3611 515 535
moving [1] 3623
much [5] 141 2517 3112 395 40
21
multi-country [1] 5211
multilateral [1] 5725
multinational [1] 2911
must [4] 251718 351616
N Nader [2] 341921
narrow [1] 4915
narrower [1] 499
nations [4] 418 397 4011 5412
natural [1] 354
nature [2] 123 2924
necessary [4] 1720 3510 3912
6523
Neder [1] 641
need [7] 1116 306 3124 3268
3712 4318
needed [2] 291 3823
negligence [2] 56711
negotiate [4] 1214 143 2825 67
5
negotiated [3] 115 1220 3914
never [1] 6723
New [1] 2616
next [2] 34 6617
nexus [2] 2517 553
nobody [2] 59 925
Nobodys [1] 6217
non-commercial [1] 85
none [3] 4411 651925
normal [1] 3414
nothing [3] 101 2411 404
notwithstanding [1] 487
Number [6] 242424 2713 3115
4424 6421
numbers [1] 2621
O OAS [4] 113 1221 282224
OBB [3] 2520 5618 587
objective [1] 4914
obligations [5] 332022 409 41
24 6515
obvious [1] 4624
obviously [2] 4710 6721
occurred [2] 2622
occurs [1] 2519
October [1] 111
Office [1] 686
officers [2] 214 2220
official [1] 215
officials [2] 192021
often [1] 5917
Okay [5] 512 2323 24518 467
old [1] 187
once [2] 4315 4620
one [47] 41823 5118 6217 819
1317 14369 1622 173 1868
1113 191218 211116 2424 25
10 273 3013 3118 3618 3812
4014 4313 4722 4823 4925 50
67 54613 5512 6015 64717
65615 6624 67319 688
ones [1] 329
one-way [1] 225
ones [1] 582
only [8] 423 62 2116 225 2810
296 417 6510
open [1] 3117
opening [1] 267
operating [1] 6216
opinion [4] 69 1624 3424 5617
opponents [2] 321 61
opportunity [1] 143
opposed [1] 554
opposite [3] 417 1345
oral [7] 114 2259 37 2010 337
oranges [1] 644
order [6] 292 306 3823 4620 47
15
ordered [1] 5718
Ordinarily [1] 296
ordinary [2] 610 117
Organization [16] 1124 1421 19
321 372021 4020 4118 4622
477 4819 519 5223 5824 623
organizations [1] 2614
organizations [56] 31218 422 7
2225 824 101421 1111422
214 2221 232 2518 261923
281319 3120 3222 3323 3711
4010 4219 4427 4851424 49
17 5018 5141222 52611 53
121724 5712 596 609 6114
6212 6318 6521 661423 67
14 68410
original [2] 1118 203
originally [1] 1616
other [41] 421 6225 77 8621
23 95 13125 141019 1715 18
21 1924 2113 224 23312 24
16 2912 3212 3446 3622 39
20 441114 4511 469 4723 50
22 5221 6315 64918 657810
664 688
others [2] 1221 324
otherwise [2] 3517 408
ought [5] 813 161 3624 5321
6310
ourselves [1] 578
out [19] 6810 1413 2416 2813
4089 4325 449 5122 5411 55
9 581015 5977 616 656 676
over [7] 1620 3024 3525 4319
21 542324
overall [2] 4916 533
override [1] 5318
own [10] 615 12131317 1518
2815 5311 6011 6745
P pm [1] 6822
package [1] 411
PAGE [5] 22 3420 3717 4113
481
papers [1] 6414
part [5] 1219 1411 2122 4322
564
Parte [1] 1514
particular [6] 916 178 341820
362 5624
particularly [1] 2118
partly [1] 1120
parts [1] 5914
party [5] 2724 2923 3011113
passage [2] 416 4314
passed [5] 525 813 1316 452
6613
past [3] 41215 92
path [1] 5022
pathway [1] 156
pathways [3] 119 1721 181
pay [2] 5324 545
people [4] 369 5013 5718 6014
percentage [1] 2812
perfect [1] 183
perform [1] 6522
performing [1] 661
perhaps [1] 3110
permissible [2] 623 1321
person [3] 2320 4316 6120
persons [2] 5114 568
pertinent [1] 1618
Peru [1] 1514
petard [1] 6012
Petitioners [10] 141923 24814
38 201219 6322
phrase [1] 2020
pick [4] 164 2015 376 629
picks [1] 281
pile [1] 627
piracy [1] 6425
place [3] 4712 546 6517
plain [2] 314 1913
plaintiff [1] 311
plaintiffs [1] 6115
plant [1] 6121
plants [1] 6814
please [3] 310 2014 3310
point [17] 1718 281222 297 34
19 35111 377 4023 501924
524 53814 551 641216
points [8] 166 3115 3945 504
6324 6511 676
policies [1] 142
policy [9] 1079151516 1418
621923 6511
political [1] 1418
politically [1] 1423
position [5] 1525 1822 4610 66
810
possibly [2] 38510
potential [1] 6715
power [2] 249 6121
powerful [1] 613
practical [2] 101920
practice [1] 296
precisely [1] 3718
prescribe [2] 495 533
prescribed [1] 4716
prescribes [1] 3311
present [1] 324
presented [1] 2515
President [9] 55 1225 136 225
24 2313 243 3410 4619
Presidents [3] 1212 2214 475
presidential [4] 2123 22411 66
11
pressure [1] 446
presumptively [1] 252
presupposes [1] 4714
pretty [1] 3022
principal [1] 1113
principle [1] 614
principles [1] 5513
Heritage Reporting Corporation Sheet 5 market - principles
74Official - Subject to Review
prior [1] 65 10 394 441225 4722 512 61 397 4510 5111 57212123 seen [1] 1520
private [12] 81421 2724 2912 23 respectfully [3] 366 373 4510 self-policing [1] 614
182223 3011113 5915 6818 reams [1] 61 Respondent [4] 1725 211 338 Senate [6] 123 41111516 4224
privileges [4] 233 4622 4848 reason [17] 109 1891012 1910 Respondents [1] 269 5117
probably [3] 815 93 5813 23 2212 3222 3319 4615 511 Respondents [2] 2112 236 sense [5] 183 221 247 3317 38
problem [8] 911 137 1420 3711 8910 541521 6816 response [3] 918 4024 5410 6
564 601720 6720 reasons [7] 1621 173 517 5417 responses [1] 2419 sensitivity [1] 4025
problems [2] 149 5516 181923 responsive [1] 1115 separate [2] 818 5113
process [4] 46511 479 6023 rebuild [1] 444 rest [1] 206 serious [3] 2511 263 6111
procure [1] 144 REBUTTAL [3] 212 206 6321 Restatement [1] 5119 set [3] 218 441 499
profit [1] 820 receive [3] 2222 2310 5224 restrictions [1] 304 sets [1] 212
programs [1] 825 received [1] 234 restrictive [8] 117 265 297 36 setting [1] 176
project [1] 5924 receiving [1] 4818 1124 3713 3922 5513 settled [2] 3315 3515
projects [4] 821 555 6016 6818 reciprocal [1] 4818 result [1] 636 settles [1] 2021
promised [1] 448 reciprocity [3] 4811 521021 retroactive [2] 131821 several [1] 211
property [1] 3821 reconsider [1] 3625 retroactivity [1] 1319 shall [4] 4619 486 492225
proposition [2] 4318 6419 Red [1] 5823 retrofit [1] 4418 shouldnt [4] 91620 511 5421
protection [1] 2624 redirect [1] 5323 reverse [1] 333 show [1] 4723
protections [2] 591920 redress [1] 3218 Rights [2] 655 666 shows [1] 231
prove [1] 3825 reduce [2] 3410 476 risk [1] 5710 side [20] 62625 8619 95 131
provide [9] 232 2923 3321 37 refer [3] 415 1619 2114 ROBERTS [9] 33 207 334 522 25 1419 1924 3215 344 3920
19 387 39111 4222 433 reference [10] 159 165 1719 18 5425 5616 576 6318 6820 4414 4511 469 5022 6418 65
provided [2] 2216 3817 11 1911 219 5055 6420 652 robust [2] 5919 6013 811
provides [2] 2024 3822 referenced [2] 611 185 roll [1] 226 sides [3] 1410 1821 4724
providing [3] 3416 38316 referential [1] 2113 roll-back [1] 2124 signed [1] 3910
provision [16] 3141723 116 17 referred [1] 2120 ruinous [1] 6625 significant [3] 4924 5815 626
6 2123 222614 2311219 28 refers [3] 323 167 2312 rule [13] 322 1425 1511 1757 similar [1] 487
16 4225 483 501 regard [2] 2567 20 1925 212 2610 351213 65 similarly [1] 474
provisions [8] 1320 212814 34 regardless [1] 2514 1 683 simply [4] 528 554 5625 6325
7 49521 5010 regiment [1] 1222 rules [4] 1919 2219 3414 6616 single [1] 4316
public [2] 825 6819 regimes [2] 6422 652 Russians [1] 4421 sitting [1] 1813
punitive [1] 6118 regular [1] 686 S situation [10] 611 1323 161 18
purpose [9] 46 101112161619 regulating [1] 813 4 457 479 4815 521822 625
111820 3318 regulation [1] 725 safer [1] 102 situations [1] 498
put [10] 712 122 292 4415 4711 regulations [1] 305 Samantar [1] 4525 slip [2] 2613 687
531123 5424 5921 Rehnquist [1] 3425 same [22] 3121618 721 1299 so-called [1] 6720
putting [1] 4422 reintroduce [1] 1420 11 1559 1919 3324 3916 422 soft [2] 5515 635
Q rejected [1] 624
related [1] 377
10 433 451317 49182225 54
16 653 solely [1] 354
Solicitor [4] 120 113 676 685 quasi-sovereign [1] 3018 Relations [1] 5120 San [2] 5115 548 sometimes [6] 1113 166 1816 question [13] 71112 107 1122 relief [2] 41112 satisfy [1] 6722 194 4545 1425 164 1822 2421 2514 34 remain [1] 1311 save [1] 205 somewhat [1] 6415 13 4517 4721 559 remains [1] 137 saying [11] 98 292024 3811 40 somewhere [1] 2622
questions [6] 78 109 1317 18 remedial [1] 6019 15 4317 5217 5511 5610 5923 sorry [2] 1921 2319 17 333 436 remedy [2] 62223 6516 sort [10] 1323 26811 27222325
quintessential [1] 2611 Remember [7] 1112 128 1411 says [17] 621 95 176 191820 2925 30811 6716 quite [9] 45 111519 299 4120 4324 521 538 5716 357 3717 4116 421224 4618 sorts [2] 2717 6125 4714 4915 503 5114 remotely [1] 4317 48319 492125 541112 SOTOMAYOR [16] 1218 1359
quo [2] 4513 removing [1] 3025 scholars [1] 4114 1112 146 2617 2726911 345 quotes [1] 4115 renovated [1] 2613 scientific [1] 83 401619 4721 662
R repeat [1] 633 scope [3] 3814 4916 5214 south [1] 3211
raised [1] 1219
range [2] 2622 4816
ratchet [1] 225
rates [1] 820
rather [4] 92121 205 267
ratification [2] 4013 4112
ratified [1] 407
ratify [2] 3918 416
read [3] 372 52716
reading [2] 2019 354
real [1] 5710
really [12] 54 9202224 2020 37
reply [2] 618 646
report [10] 123 41111516 4224
511517 54710 6022
request [1] 3613
require [3] 2819 4610 5625
required [2] 1819 6518
requirement [2] 303 553
research [2] 844
reserving [1] 1912
residents [1] 3216
resolution [1] 82
resources [3] 53101320
respect [10] 215 372424 3813
second [8] 52 72 103 168 18
12 2325 3510 4920
Secondly [1] 679
Secretaries [1] 6222
section [17] 141212 1612 1915
16 201824 21101011 221315
2410 331 343 4616 4725
sector [2] 81421
see [10] 9142223 2118 3221 39
6 451 546 5911 6124
seeking [1] 3217
seem [1] 5624
seems [2] 102 2416
Sovereign [11] 320 9152125 19
6 2719 3041525 4320 5219
sovereigns [8] 197 302 4825
511113 527924
special [6] 88 1024 115 1219
371415
specialized [1] 3819
specific [6] 1619 176 1811 56
20 571 6410
specifically [1] 5411
spending [1] 91
spent [1] 569
stages [1] 4022
Heritage Reporting Corporation Sheet 6 prior - stages
75Official - Subject to Review
stand [1] 6414
standard [20] 33111625 3411
24 361113162123 4318 4612
471617 4912 5344 5422 62
15
standards [7] 4956 59222225
60310
Stanford [1] 118
start [5] 521 15711 3412 6324
started [1] 1522
Starting [2] 321 78
State [23] 55 7141518 9716 18
25 198 2114 2823 3525 3610
14 3922 402 4422 4545 4611
471 54913 6223
statement [1] 378
STATES [39] 111522 27 418
11312 2011 25219 2620 271
3111 3324 3652021 378917
21 3816 391618 42210 4815
16 4919 514 5218 5318 5547
11 562 6220 68811
States [1] 6225
status [5] 3523 4513 5110 54
18
statute [32] 47 525 74 101212
129 167791111 35616 3715
382823 46152124 4819 49
21 5067 533 5512 62218 63
25 642425 654
statutes [2] 3716 509
statutory [13] 323 51922 176
3317 3415 359 4720 501 58
22 6422 6529
Steamboat [2] 61724
step [1] 3510
steps [2] 723 5620
still [2] 137 5224
stilted [1] 1815
stood [2] 367 374
streets [1] 2616
stronger [1] 2517
structural [1] 4719
structure [4] 315 2022 2122 47
12
stuck [1] 910
stuff [1] 75
subbed [2] 6245
subcategory [1] 4920
subject [5] 12111314 3223 54
13
submit [3] 1410 155 615
submitted [2] 682123
subsection [5] 19181820 2022
subsequently [1] 1615
substantiate [1] 3810
substantive [4] 3325 471617 53
4
suddenly [1] 3025
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suggesting [1] 5023
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suggestions [1] 1417
suing [2] 611920
suit [18] 312 41 524 6412 72
1314 15311 215 233 251322
25 312124 3223 606
suits [6] 312224 321131619
support [1] 4114
supporting [3] 122 28 2012
supports [1] 536
SUPREME [2] 1114
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Sutherland [2] 613 1725
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Switzerland [1] 98
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systems [1] 5918
T talked [2] 6625 686
talks [3] 811 6418
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target [1] 6114
Tate [6] 361819 3921 403 437
464
tax [1] 3821
tells [1] 531
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Tenth [1] 1814
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test [2] 1521 6722
Texas [1] 6814
text [16] 31421 51922 191315
15 2018 3313 352235 4720
4812 6325
textual [1] 75
themselves [2] 616 6710
theory [2] 1224 3919
theres [23] 920 181 1910 2016
2111 2622 3118 359 363 403
12 446 4715 4923 5522 5718
581417 601719 6479 671
therefore [3] 342 3624 6316
theyve [2] 3715 4417
thinking [3] 425 4323 5421
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thirdly [1] 1215
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today [5] 1917 2115 236 3710
4019
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took [1] 1718
tort [8] 5325 545 611 622 6423
67911 686
tortious [1] 261
towards [1] 3623
Trade [1] 3720
traditionally [1] 3111
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transactions [1] 814
Treasury [1] 6223
treat [4] 1216 3323 432
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treatment [7] 4219 48131418
491822 6814
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2121324 4124 422122 4311
597 6515 665
tried [1] 497
true [9] 45 721 2119 369 3725
3813 401 496 5416
Truman [1] 1825
Trump [1] 6614
try [4] 1816 406 444 5819
trying [7] 3023 3225 4324 4414
17 4915 532
tuberculosis [1] 5825
tune [1] 4825
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turning [1] 1416
two [15] 416 518 77 1317 1621
17321 181 2025 2113 49323
535 6413 671
type [2] 15325
types [1] 5723
U UN [16] 1013 1220 381819 39
10131424 40717 4121717 51
16 549 664
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18 398 4119 4620 501 569 57
13 617 6221418
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understates [1] 579
Understood [4] 2417 299 3713
4121
undertaken [1] 386
UNITED [33] 111522 27 1112
2011 2519 262025 3111 365
2021 378917 381516 39718
4011 4816 5218 5318 5412 55
4711 562 622025 68711
unless [2] 3516 5916
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unlikely [1] 5518
until [3] 389 3919 4012
up [18] 44 923 164 2015 2225
281 322 37771023 383 441
717 5925 603 629
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3412 363 401823 42813 43
11 4591618 468 492 5215 55
621 56313 5747 641
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versus [2] 34 618
view [1] 2913
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1622 3817 391151623 4122
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20 5720 621113 6518
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W waive [7] 917 2313 24310 3121
2124
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War [1] 446
Washington [4] 1102124 583
wastewater [1] 6814
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157 1615 172325 2416 2516
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6520
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2224 324 3720 44555 5823
5915
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WTO [1] 3812
Yyear [1] 6423
York [1] 2616
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give immunity to the other side
I dont think so
JUSTICE BREYER No its the
opposite
JUSTICE SOTOMAYOR The opposite The
President cant decrease it correct So that
problem still remains with your -shy
MR FISHER Well -shy
JUSTICE SOTOMAYOR Yeah
MR FISHER -- I think it -- it may
or may not remain Justice Sotomayor
JUSTICE SOTOMAYOR Thats my -shy
MR FISHER Certainly we could -- we
would say we can go forward on this suit
because -- because there is no such law
If that law were passed youd have
two questions One is did Congress make it
retroactive And you look to Altmann to think
about how to judge the retroactivity of
immunity provisions And then if it were
retroactive whether that were permissible
But you know were a long way from
-- from that sort of a situation I think the
important thing going forward and this is I
think what the concern is on the other side
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is not so much about this case but about
incentives and policies going forward they
have every opportunity to negotiate in one form
or another or to procure a heightened form of
immunity
And Justice Sotomayor let me say one
more thing to you and Justice Breyer about you
know the idea of the executive branch getting
involved This is one of the problems I
submit with the other sides argument
Remember part of the goal of the FSIA
in the first section of the Act in Section 1602
is to get -- is to get the executive branch out
of the immunity business
Congress made the determination that
it was a bad idea to have every case turning on
individualized suggestions of immunity and
executive branch political policy And so the
other side by importing the common law of
1945 would reintroduce that problem into
international organization immunity in a way
that we dont think would be very good
politically or very workable in the courts
And Id hasten to add that even under
the rule of 1945 if the question were what
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does the executive branch think about any given
lawsuit or any given immunity for any given
type of suit that would just lead you right
back to the FSIA and it would lead you back to
the same conclusion that we submit to you here
So either pathway whether Justice
Breyer you start with the way youve always
looked at cases with the word is and the
word same and the reference canon that Ive
described and say all of those things lead you
to a time of suit rule or if you start with
the law of 1945 and say what was the law in
1945
Well Hoffman and -- in Ex Parte Peru
were clear that the law of 1945 was the
executive branch decides and its not for the
Court -- this is -- Im going to give you the
Courts own language -- its not for the Court
to give immunity where the executive branch has
not seen fit to give it
And if that were the test youd come
right back to where you -- where I started
here which is that the FSIA would control or
at the bare minimum the executive branch
position in this lawsuit on the type of
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immunity that ought to apply in this situation
would control So -shy
JUSTICE GORSUCH Mr Fisher if I can
pick up on Justice Breyers question The
reference canon I take all -- all of your
points but sometimes lets say we have a
statute that -- that refers to another statute
Usually we would look at the second
statute thats being incorporated as of the
time of -- of the adoption of the first
statute Right So if -- if this statute were
to say go look at Section 5 -shy
MR FISHER Right
JUSTICE GORSUCH -- we wouldnt look
at it the way its been subsequently amended
Wed look at it as it was originally enacted in
1945
Why isnt that -- that idea pertinent
here you know when we refer to a specific
law we dont take it to evolve over time
MR FISHER So for two reasons
Justice Gorsuch and one of them if youll
forgive me is going to be something you said
in the Alan Contoe opinion
JUSTICE GORSUCH I was afraid of
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that
(Laughter)
MR FISHER But for two reasons One
is Congress has a choice to make when it writes
legislation It can lock in a given rule by
setting a specific statutory provision and says
thats the rule we want just like if Congress
uses a particular word at the time of the
enactment the meaning of that word at the time
of enactment would be what Congress -- wed
assume Congress wanted
Or Congress could do something
different which is to say look were not
sure exactly of the metes and bounds of the
law Were just going to tie it to this other
area of law as a general matter And thats
what Congress did here It did the latter
So it took an area of law as a point
of reference and said Just use that as the
default rule and then adjust as necessary And
those are just two different pathways Congress
can go down
And they date as I said all the way
back to the First Judiciary Act there in the
Sutherland treatise all the way back to 1904
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and so theres just two different pathways
Congress can go down
And it makes perfect sense I think
in a situation like this especially where you
have a common law doctrine being referenced at
least a common law at the time and one that
was indeed not just any old common law
doctrine but one that was in a great deal of
flux at the time So it made every reason -shy
it made every good reason for Congress to have
a general reference not a specific one
And then the second reason Justice
Gorsuch is the one you mentioned sitting on
the Tenth Circuit which is that as time goes
by it becomes all the more stilted or
antiquated or even foolish sometimes to try to
answer questions in the modern day according to
what some bygone era doctrine would have
required and especially a bygone era doctrine
like this
If I understand the other sides
position correctly basically the question
theyre having -- they would want every federal
court to ask in these cases is what would the
Truman Administrations State Department have
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wanted to do in this case
And when you have things like this
which didnt even -- an organization that
didnt even exist at the time sometimes doing
activities that werent even contemplated at
the time things like sovereign wealth funds
which foreign sovereigns now engage in for
example who knows what the State Department
would have thought then
I think theres every reason then to
fall back on the reference canon And if I can
say one more thing before reserving my time if
you have any doubt about just the plain text
argument Ive given you I would urge you to
compare the text in Section 288a to the text -shy
Section 288d which has the exact dichotomy
that -- that Ive been discussing today
One subsection subsection (a) says
that the same immunity rules apply and
subsection (b) says that foreign officials -shy
Im sorry international organization officials
are entitled to absolute immunity
So this is yet another reason why if
the other side were correct and if Congress had
wanted to lay down the rule they did why would
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they not have just used the absolute immunity
language in subsection (b) of subsection (d)
and that indeed was the original draft of
this act that was discarded
So I could go on but Id rather save
the rest of my time for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Ellis
ORAL ARGUMENT OF JONATHAN ELLIS FOR
THE UNITED STATES AS AMICUS
CURIAE SUPPORTING THE PETITIONERS
MR ELLIS Mr Chief Justice and may
it please the Court
If I could Id just like to pick up
right where my friend left off Theres been a
lot of discussion so far this morning on the
text of Section 288a We agree that the
Petitioners have the far better reading of that
phrase in isolation but I think it really
settles the deal when you look at the entire
structure of the Act
The -- the IOIA doesnt just grant
immunity in Section 288a(b) but it provides a
whole host of immunities and it does it in two
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different ways In several different
provisions the Act sets a fixed rule of
immunity So archives are inviolable and
officers and employees of the organizations are
immune from suit with respect to their official
acts
And then there are a -- a host a
collection of three provisions that set the
immunity by reference to foreign governments
Theyre Section 288a(d) Section 288d(a) and
theres Section 288a(b) the one at issue here
Respondents concede that the
referential language in those other two
provisions do refer to the state of the law as
it is today
Its only the one thats at issue in
this case that they say was frozen We dont
see how that can be and thats particularly
true when you look at the drafting history that
my friend referred to
JUSTICE KAGAN Mr Ellis before you
get to that another part of the structure is
this provision that deals with presidential
authority and thats essentially a roll-back
authority of immunity
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Doesnt that make a lot more sense
that provision if you assume that Congress
meant for there to be absolute immunity In
other words the presidential authority is a
one-way ratchet The President can only under
this provision roll it back It cant increase
it
So to me if I -- if -- if -- if -shy
if the immunity -- if the immunity is less than
absolute you would think that they would have
given the presidential authority both ways
MR ELLIS Sure The reason that
argument doesnt work is because Section 288
the Presidents authority under that provision
doesnt just apply to Section 288a(b) It
applies to all of the immunities provided by
the IOIA
And as I was just describing some of
those are fixed immunity rules that are not
absolute And so for instance the officers
and employees of international organizations do
not receive diplomatic immunity That was a
big deal at the time
And -- and yet the President cant -shy
couldnt grant that up I think what that
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provision shows is that Congress wanted to
provide international organizations at most the
immunity from suit and other privileges of
immunities that foreign governments received
and not more so
And yet Respondents are here today
asking you for exactly that more immunity -shy
JUSTICE BREYER But on that -shy
MR ELLIS -- than foreign
governments receive
JUSTICE BREYER But look whatever
other things it refers to the provision allows
the President to waive immunity not to grant
immunity And your argument is they have
immunity Right
Do I have -- I get this backwards
This is the third time Ive got it backwards
(Laughter)
JUSTICE BREYER Sorry The provision
allows the person to be sued Is that right
MR ELLIS It does allow them to be
sued
JUSTICE BREYER Okay So I was
right I had it backwards the first time but
not the second not the third all right
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(Laughter)
JUSTICE BREYER It allows the
President to waive the immunity
MR ELLIS Thats right
JUSTICE BREYER Okay It doesnt
allow him to grant the immunity
MR ELLIS It does in a sense I
mean -shy
JUSTICE BREYER But the power to
waive the immunity at least in this section
amounts to nothing if they have no immunity
because for example all they do is lend
money
MR ELLIS So -- so a couple -shy
JUSTICE BREYER Thats -- thats -shy
and the other way it seems to work itself out
MR ELLIS Understood
JUSTICE BREYER Okay
MR ELLIS A couple responses to
that Your Honor
JUSTICE BREYER Thats the question
I think
MR ELLIS Glad to be able to address
that Number -- number one just to be clear
we -- they do have a great deal of immunity I
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mean foreign -- international organizations
and foreign states are presumptively immune
And I would agree with almost everything
that -- maybe everything that -- that my friend
said about why the commercial activity
exception even with regard to IFC and -- and
most -- more importantly with regard to the
vast sweep of these organizations is not going
to eliminate immunity
I would add one more is that even a
case like this we have serious doubts I
think -- we think in fact from what we know
this suit isnt going to be able to go forward
regardless of the answer to the question
presented because in addition to having -- to
being connected in some way to commercial
activity there must be a much stronger nexus
It must be based on commercial activity that
occurs in the United States
We think the Courts decision in OBB
makes clear that the way you apply that is to
ask Whats the gravamen of this suit Its
not enough to have some attenuated connection
but whats the gravamen
And the gravamen of this suit as we
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understand it is -- is tortious conduct that
occurred in India injuries that occurred in
India And we dont think -- we have serious
doubts that this is going to be able to go
forward even under restrictive immunity
And so we do not think that what were
doing is opening the floodgates here rather
that the sort of concerns that would be barred
-- cases that would be barred by Respondents
absolute rule of immunity and would be allowed
by ours are -- are sort of quintessential
domestic disputes contract disputes with your
contractor who renovated the building the slip
and fall at the -- at the organizations
headquarters or the driving accident on the
streets of New York and DC
JUSTICE SOTOMAYOR Do you have -- do
you have any idea about how many of these kinds
of organizations are headquartered in the
United States
MR ELLIS I think the numbers are in
the 20 to 30 range Theres about -- somewhere
80-some organizations that have been designated
for protection under IOIA and 20-some that have
-- I think are headquartered in the United
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States
JUSTICE SOTOMAYOR That are
commercial like this one
MR ELLIS No no no No I did
not -- no
JUSTICE SOTOMAYOR Were -shy
everybodys assuming -shy
MR ELLIS Right
JUSTICE SOTOMAYOR -- a floodgate
MR ELLIS Sure no There are -shy
JUSTICE SOTOMAYOR Including Justice
Breyer
MR ELLIS -- there are a number of
development banks but even then even -- even
the development banks even if you talk about
the World Bank its not clear that those
commercial activities are the sorts that the -shy
the FSIA captures with the commercial activity
exception Lending there is to sovereign
governments
And -- and as the Court has been -- as
lower courts have explained that sort of
commercial activity is not the sort that a
private party could engage in So its not the
sort that the commercial activity exception
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picks up
JUSTICE BREYER Well I -- I have the
IFC the IMF the World Bank the
Inter-American Development Bank the Asian
Development Bank the African Development Bank
the International Development Association So
I -shy
MR ELLIS Sure I -shy
JUSTICE BREYER -- Ive got -- thats
only half of them
MR ELLIS Thats -- that -- Im not
sure what percentage that is I want to point
out that some of those organizations -shy
JUSTICE BREYER There are a lot
MR ELLIS -- have their own immunity
provision in the -- in their charter And so
thats what we think -- if you look at the
history thats what -- thats how it has been
dealt with for organizations that require
absolute immunity Weve entered into
agreements
I would point again to the OAS
agreement where the State Department is just
crystal-clear that what OAS did in that
agreement was to negotiate absolute immunity
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because they thought thats what they needed in
order to put their headquarters here
JUSTICE KAGAN But Mister -shy
MR ELLIS We agreed to that and we
said But hey this is not our usual
practice Ordinarily we -- we afford only
restrictive immunity We point to the FSIA
JUSTICE KAGAN Mr Ellis I -- I
guess Im not sure I -- I quite understood what
you meant As to the core lending activities
of these multinational development banks in
other words making loans where private actors
would not make loans do you have a view as to
whether that counts as a commercial activity or
not
Did you say that that would not count
as a commercial activity because theyre making
loans that the -- that the private market would
not make
MR ELLIS No Im -- Im not saying
that its -- that its enough that theyre
making loans that a -- that a private -- they
couldnt find a private party to provide Im
saying if the nature of the loan is such that
its -- its not the sort of transaction that a
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private party would enter into so think about
the IMF that grants -- that lends to sovereigns
and they do so on the requirement that the
sovereign enact certain restrictions -shy
regulations and change their -- their -- their
laws in order to assure that they dont need
the money again
That is the sort of thing thats been
held by lower courts and weve advocated is
not a commercial activity Thats just not the
sort of transaction that a private party can
enter -- enter into Its not just that a
private party didnt Its that -- that no one
-- thats not something that you can do
Thats a sovereign act
JUSTICE BREYER But can you give
me -shy
MR ELLIS Or a quasi-sovereign act
JUSTICE BREYER -- anything to assure
me because when I looked through this list I
thought that there were development banks like
the World Bank which is a pretty big deal as
well as in Asia in Africa were trying to
encourage development all over the world and
suddenly by removing the sovereign immunity
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because the plaintiff will claim this is a
commercial activity
MR ELLIS So -- so -shy
JUSTICE BREYER And youre not
denying it
MR ELLIS And so -shy
JUSTICE BREYER So what is the
assurance that the government can give us that
this isnt going to lead to a lot of lawsuits
and this isnt going to interfere with perhaps
activity that the United States traditionally
has been very much in favor of
MR ELLIS Absolutely Let me -- let
me give you a couple things I think weve
given you a number of -- of points already this
morning as to why we dont think the floodgates
are going to open
If -- if theres one more Ill say
just look at the -- the charter of these
organizations Look at the IFCs charter
They already waive suit waive immunity for
suits going directly to their core activities
They -- they in fact indicate that they -shy
they need to waive suit in these suits
And so I -- I think when youre
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talking about what are the suits that are going
to come up under commercial activity many of
them are already going forward because the IFC
and the World Bank and others have waived their
immunity
JUSTICE GINSBURG And they need to
because
MR ELLIS They need to because no
ones going to enter into a financial
transaction with them if they -- they know they
cant sue if it -- if it goes south
The other thing -- I want to also
focus the Court on the -- on the suits that we
know are not going to go forward on the
absolute immunity side Were talking about
suits by -- by US citizens and residents
about domestic conduct and theyre seeking
redress in US courts
These are the suits that foreign
governments are -- are able to be sued on and
dont have immunity And we dont see any
reason why international organizations should
not also be subject to suit in those
circumstances and we think thats exactly what
the Congress was trying to do when it enacted
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Section 288 in 1945
If there are no -- no further
questions we ask the Court to reverse
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Verrilli
ORAL ARGUMENT OF DONALD B VERRILLI
ON BEHALF OF THE RESPONDENT
MR VERRILLI Thank you Mr Chief
Justice and may it please the Court
The IOIA prescribes a standard of
virtual absolute immunity that is fixed and not
evolving We know that because the text
incorporated common law terms that had a
settled meaning of virtually absolute immunity
and because a fixed standard makes the most
sense in light of the statutory context and
purpose
Now the reason that Congress enacted
the IOIA was to fulfill treaty obligations that
committed us to provide virtually absolute
immunity Those treaty obligations did not
commit us to treat international organizations
the same as foreign states were treated They
committed us to the substantive standard of
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virtually absolute immunity
And therefore if -- if -- if the
language in section 288b is interpreted in the
way my friends on the other side suggest -shy
JUSTICE SOTOMAYOR So why didnt
Congress say that the way it did in the other
provisions of this Act And if it intended
that in no change it could have said it and
given the very exception it gave which is that
the President or the executive could reduce
immunity which was the standard at the time
MR VERRILLI So let me start with
the basic question We think if the Court
applies the normal rules of construction that
it applies in statutory interpretation cases
that Congress did say that it was providing
virtually absolute immunity
And I think a case in particular that
I would point the Court to is the Nader
decision 527 US and in particular to page
21 of the Nader decision Thats a case -shy
that case of course was about whether mail
fraud and wire fraud incorporated a materiality
standard This is an opinion by Chief Justice
Rehnquist unanimous for the Court on this
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point The Court said first we look to the
text of course and when looking to the text
if we -- if -- and in looking to the text
based solely on a natural reading of the full
text materiality wouldnt be an element of the
fraud statute
And then the Court says But that
does not end the inquiry because in
interpreting statutory language theres a
necessary second step And this is -- Im
coming to the point that I think governs here
which is that it is a well-established rule of
construction a rule of construction that
where Congress uses terms that have accumulated
settled meaning under the common law a court
must infer must infer unless the statute
dictates otherwise that Congress means to
incorporate the established meaning of those
terms Now the -shy
JUSTICE GINSBURG What about the
argument that there wasnt an established
meaning in -- what was it -- 1945 that it -shy
the -- the status of the immunity was in flux
It had been absolute but then we were going
over -- the State Department was advising the
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court whether immunity should be given in a
particular case
MR VERRILLI Theres a bit of a
suggestion to that effect in the brief of the
United States Your Honor but I would
respectfully suggest that is not a fair
characterization of where things stood in 1945
at all
It is true that some people within the
State Department in 1945 thought that immunity
should move to a more restrictive standard but
the Justice Department would not even advance
that standard in this Court at the request of
the State Department and this Court did not
describe the immunity as being in flux This
Court said the standard was virtually absolute
immunity
If one looks even in 1952 at the Tate
Letter the Tate Letter didnt say the law was
in flux in the United States It said the
United States was hewing to the standard of
virtually absolute immunity but other
countries were moving towards a standard of
restrictive immunity and therefore we ought
to reconsider what were doing
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So I just -- I mean the Court can
read these materials for -- for itself but I
just respectfully do not think its a fair
consideration of where things stood in 1945 at
all
And then if I could Id like to pick
up on a related point that came up in the brief
of the United States Its another statement
in the brief of the United States and it came
up in argument today that look this really
isnt a problem because for those organizations
that need immunity that goes beyond the -- the
restrictive immunity weve always understood
that they get -- they can go get a special
statute and theyve gone and gotten special
statutes
The United States says on page 27 of
its brief precisely because the IOIA didnt
provide that level of immunity they give these
three examples IMF World Trade Organization
and Organization of American States
Id like to take a minute and go
through each of them because it doesnt hold up
with respect to each of them With respect to
the IMF for example it is true the IMF you
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know it has a -- has a treaty There was a
statute that gave that treaty effect under US
law which ended up providing for absolute
immunity
But it cant possibly be that that was
undertaken based on any sense that the IOIA
didnt provide that level of immunity because
the IMF statute was enacted in July of 1945
and the IOIA wasnt enacted until five months
later So it cant possibly substantiate what
the government was saying
If one looks at the WTO treaty it is
true with respect to that treaty that it
committed us to a very wide scope of
immunities It said that the United -- that
the United States will commit to providing all
or virtually all of the immunities provided
under a whole different UN convention the
UN convention on specialized agencies
Now that convention has all kinds of
tax immunities and property immunities that go
way beyond what the IOIA provides So of
course they needed another statute in order to
make those treaty commitments That doesnt
prove anything about whether anybody thought
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that the IOIA failed to provide virtually
absolute immunity
In fact the historical evidence I
think really to the extent it points in any
direction it points very much more in our
direction And the best way to see that is
with respect to the way the United Nations was
treated under -- by the executive branch in
this country
Now we signed the UN charter in
1945 committed us to provide what the charter
describes as the necessary immunities Then
the UN Convention on Immunities was
negotiated in 1946 which said that the UN
should get virtually absolute immunity Not
the same immunity as foreign states virtually
absolute immunity
Now the United States did not ratify
that convention until 1970 So on the theory
that my friends on the other side have from
the moment of the Tate Letter in 1952 when
foreign state immunity became restrictive and
not virtually absolute anymore we were in
violation of the commitment we made in the UN
charter
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Now if that was true you would
certainly expect the State Department A to
address it in the Tate Letter but theres
nothing in there Its a classic case of the
dog that didnt bark And B you would expect
them to try to do something about it like get
the UN Convention ratified immediately
because otherwise we were going to be out of -shy
out of compliance with our obligations to the
granddaddy of all international organizations
the United Nations
But theres not a -- from 1952 until
the ratification of the Convention in 1970 you
cant find one word by anybody in the executive
branch ever saying that What you do find -shy
JUSTICE SOTOMAYOR What commercial
activities was the UN doing at that time
MR VERRILLI Well -shy
JUSTICE SOTOMAYOR I know today its
a very different organization but its not
clear to me that there was much going on that
was commercial at its initial stages
MR VERRILLI I take that point Your
Honor but what I would say in response is that
there was a very great deal of sensitivity
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about the whole package of -- of immunities
that were available to the UN and its
diplomats and its -- and its workers
And there was concern all along from
1952 to 1970 that -- that -- where the
executive was urging Congress to ratify the
convention but the only things ever mentioned
were the diplomats -- immunities for diplomatic
individuals
And then when you get to 1970 and you
actually look at the Senate report accompanying
the ratification this was not in our brief
but its at page 31 of the brief of the -- of
the scholars who filed the brief in support of
us It quotes the Senate report from 1970 and
what the Senate report says is were not
granting the UN any -- the UN as an
organization any immunity it didnt already
have under the IOIA
So as late as 1970 it was just quite
clear that everybody understood the IOIA
conferred virtually absolute immunity And of
course thats because it was -- it was enacted
to comply with our treaty obligations
It wasnt enacted to make sure that
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come what may that international organizations
would get treated the same as foreign states
That is -- you know thats the best way to
think about it is its just a completely
anachronistic way of thinking about the body of
materials in front of you
JUSTICE KAGAN But even what you just
said Mr Verrilli it wasnt enacted to make
sure that foreign organizations would get
treated the same as foreign states
I mean thats exactly what the
language of the thing says
MR VERRILLI Well so I guess a
couple of things about that I think the right
way to think about the language Justice Kagan
is that it was a means to an end in 1945 when
it was enacted
It was not the end in itself to assure
equivalence of treatment come what may It was
the means by which Congress ensured that it
would fulfill its treaty commitments which were
-- and those treaty commitments were to provide
virtually absolute immunity
And we know the Senate report says
were enacting this provision to fulfill our
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treaty commitments And our treaty
commitments again were not to treat them the
same They were to provide virtually absolute
immunity So -shy
JUSTICE KAGAN Do you think it was -shy
you answered Justice Ginsburgs questions about
how far we were from the Tate Letter in 1945
but do you think it was inconceivable to
Congress that the common law of immunity would
change
MR VERRILLI Well I -- I -- I cant
say that it would be inconceivable to anybody
but what I can say is if one looks at the
debates surrounding the passage of the IOIA
is once again its a dog that didnt bark
You cant find a single person
anywhere saying anything remotely like the
proposition that we need to adopt a standard
that will evolve over time because we have a
concern that foreign sovereign immunity law
will evolve over time
That just was not any part of
anybodys thinking at that time They were
trying -- you have to remember this is coming
out of the Bretten Woods system We have
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Bretten Woods We set up all these
organizations
They have a -- they have a desperate
mission in front of them to try to rebuild the
world -- the world after the carnage of World
War II Theres a lot of pressure on Congress
to get these organizations up and going and
give them the immunity we promised them so they
can go out and do their work Thats what led
to the enactment of the IOIA
It was none of these other things as
I said I really think if you look at the
historical materials its the -- the gloss
that my friends on the other side are trying to
put on it is completely anachronistic
Theyre taking a different concept
that theyve come up with now and trying to
retrofit the historical facts to match it and
it just isnt right
JUSTICE BREYER Is that -- is that -shy
the Russians at that time 45 and so forth
were putting all these businesses into state
entities So my guess is there were -- there
were a number of cases and what I thought I
heard Mr Fisher say is if we really go back
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and look at this well see that the status quo
before this passed was not absolute immunity
but the status quo was a kind of mess where
sometimes the State Department would say give
them immunity and sometimes the State
Department would say not
Now what is the actual situation as
far as youve been able to find it
MR VERRILLI Well I dont -shy
respectfully with respect to my friends on the
other side I dont think thats a fair
characterization of the historical materials
JUSTICE GINSBURG Thats the same -shy
the answer you gave to me is the answer you
would give to Justice Breyer
MR VERRILLI Yes
JUSTICE GINSBURG Same question
MR VERRILLI Yes I mean its just
not there I mean look at what this Courts
cases said This Courts cases didnt say
anything like that
The -- the -- the governments briefs
to this Court didnt say anything like that
When this Court has looked back on the law in
Verlinden and in Samantar it hadnt said
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anything like that It said the standard was a
common law standard of virtually absolute
immunity
And thats in fact how the Tate
Letter describes it too And then as a process
matter -shy
JUSTICE BREYER Okay I got it
MR VERRILLI -- my friends on the
other side have made this argument that well
our position would also require you to go back
to the process of the State Department making
an ad hoc case-by-case determination but
thats wrong too
And thats clear on the face of the
statute that its wrong And the reason -- and
-- and thats right in Section 288 This
creates an entirely different mechanism
What the -- what the IOIA says is that
-- that the President shall have the authority
under executive order once Congress has
enacted a statute to grant an international
organization the privileges and immunities
And if you look at the face of the
statute its obvious that they are granted on
a categorical basis in gross by an executive
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order not on a case-by-case basis by the State
Department when -- when a lawsuit is -- or when
a -- when a lawsuit is filed
And then similarly in terms of the
Presidents authority as to an executive order
to reduce or eliminate the -- the immunity of
an international organization that -- its -shy
again its completely different than the
situation that -- than the common law process
at work So obviously Congress made a
judgment that it was going to put a different
structure and system in place
And the fact that Congress did that I
do say -- I do think quite clearly presupposes
that theres a -- the existence of a
substantive standard being prescribed And the
substantive standard as I said is virtually
absolute immunity
And then in terms of the structural
indicators in the statutory text going back to
a question you asked Justice Sotomayor I
really think the most telling one to -- to
show you I think why my friends on the other
sides case is completely anachronistic and
were correct -- is Section 288f which you can
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find at page 6a of the appendix to the blue
brief
That provision says that the
privileges exemptions and immunities of
international organizations and then of -- of
members and employees et cetera shall be
granted notwithstanding the fact that similar
privileges exemptions and immunities granted
to a foreign government et cetera et cetera
may be conditioned upon the existence of
reciprocity by that foreign government
So right there in the text it
decouples the treatment of international
organizations from the treatment of foreign
states Even in a situation in which the
United States would not grant the full range of
virtually absolute immunity because it wasnt
being -- receiving reciprocal treatment this
statute says the international organization
gets it So -shy
JUSTICE GINSBURG How do you deal
with the argument that we just heard that we
can compare 288a on the one hand which -shy
which keeps the international organizations in
tune with foreign sovereigns and 288 -- was it
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b and d
MR VERRILLI Yes I do think that
the -- the differences break down into two
categories Your Honor There -- some of the
provisions do prescribe fixed standards
Thats true But those fixed standards as we
explained in our brief or at least tried to
are always situations in which the IOIA is
conferring a narrower set of immunities on -shy
on diplomats and individuals than the common
law would have at the time
So incorporation of the standard in
the way this 288a(b) did wouldnt accomplish
the objective there because there was -- they
were quite consciously trying to narrow the
overall scope of immunities and not give the
individuals who worked at these organizations
the same full treatment that diplomats got who
-- from foreign states
Now the second subcategory are the
provisions where the -- the statute says that
their -- the treatment shall be the same But
theres two things about that that are
significant
One is it says they shall be the same
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as under another statutory provision And as
we said we think thats vitally important
here We think its quite clear that in
addition to Justice Breyers points about the
reference canon that the reference canon
applies when one statute incorporates another
It doesnt apply when one statute incorporates
the common law And here they were
incorporating statutes
And if you look at those provisions
anyway theyre basically just instructions to
the executive branch when do you fingerprint
the people when theyre coming in What do you
do about that -- this detail or that detail
They dont go to the heart of the
matter at all And the heart of the matter
here is the immunity being conferred on these
international organizations
I just want to make a point about that
and then if I could talk about the
consequences that will ensue I think if we go
down the path that my friends on the other side
are suggesting
I think this is a critical point I
just want to make sure its clear Another
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reason why you shouldnt draw this equivalence
-- and it cant be that Congress really
intended to draw an equivalence between foreign
states and international organizations such
that they would just move in tandem no matter
what -- is that immunity is granted for
different reasons
The reason you give an international
organization immunity is a functional reason
not a status reason Its not about according
the appropriate respect to the sovereigns
because international organizations arent
sovereigns Theyre separate juridical
persons And whats quite clear -- its clear
from the U -- the San Francisco report on the
foundation of the UN its clear from the
Senate report in 1945 its clear from all the
commentators that we discussed in our brief
its clear from the Restatement of Foreign
Relations which weve cited in our brief that
you grant immunity to international
organizations so that they can carry out their
functions effectively And -- and just take -shy
let me take a minute and kind of elaborate on
that because I think its critical
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Remember these are -shy
CHIEF JUSTICE ROBERTS If you dont
mind Im afraid Im about five minutes behind
you here but going -- going back to your point
on 288f you said its there theyre decoupling
the international organizations and the foreign
sovereigns But as I go back and read it
its simply because the -- the foreign
sovereigns have the capability to use
reciprocity and the foreign -- and the
multi-country organizations do not
I dont -- I mean thats the
difference theyre drawing there not something
between the scope of the actual immunities
MR VERRILLI Well I -- well the
way I read it Mr Chief Justice is what -shy
what theyre doing there is saying even in a
situation in which the United States concludes
that it wont afford a foreign sovereign the
full virtually absolute immunity because of
reciprocity in other words were not getting
it back from them even in that situation an
international organization of -- where those
sovereigns are members will still receive the
full level of immunity
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And so I think what that tells us is
that what Congress was trying to do in this
statute overall was prescribe a fixed
substantive standard not a floating standard
where the two things move in tandem So -- and
I -- I do think it supports that
And if I could just go back to the
functional point remember these are
collective bodies and members come together
they make -- they -- they take resources from
each of their own countries They put them
into these organizations They make collective
decisions about how to deploy those resources
And the point of the immunity here is
so that the courts of any country but
especially the host country which for the most
important organizations are going to be here in
the United States cant override the
collective judgments that they make about how
their resources would be deployed and what
conditions they ought to impose et cetera by
the intervention of domestic law in US courts
and cant redirect the funds that are put into
these organizations to pay massive class action
tort judgments because of course the member
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countries are contributing this money because
they believe its going to be put to the use
that the -- for example the development bank
the development bank decides it should be put
to not to pay massive tort judgments
And I think one place you see this
very clearly if you look at the report of the
San Francisco conference about the founding of
the UN the State Departments -shy
Departments response coming -- report coming
out of that conference specifically says this
It says of course the United Nations cant be
subject to the jurisdiction of any one state or
its courts
And its for exactly this reason And
the same thing is true generally Thats why
you give it not for functional reasons -- I
mean excuse me not for reasons of status but
for functional reasons
And I think a key -- another key
reason why you shouldnt be thinking about this
as a standard that evolves evolves now and
over time is that those functional reasons
dont evolve now and over time
CHIEF JUSTICE ROBERTS Well what
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about the point that most of the concerns you
have are going to be dealt with by the
requirement of a nexus to activity in the
United States as opposed to simply abroad
where the projects are funded
MR VERRILLI Yes I was gratified
to hear the United States say that but -- and
-- but I could just -- Ill answer Your Honors
question directly but I want to broaden it out
a little bit because I think what essentially
the United States is saying here is look the
statute leaves one with no choice but to apply
restrictive principles of immunity Youve got
to jump off that cliff but dont worry it
will be a soft landing because the FSIA will
take care of a lot of these problems
And I guess what I would say about
that is in the unlikely event you dont agree
with me I -shy
(Laughter)
MR VERRILLI -- I hope theyre
right But theres no guarantee that theyre
right
JUSTICE BREYER Are the -- are the
lending decisions which may be fairly detailed
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and may include dozens of conditions made
within the United States
MR VERRILLI Well yes I think
thats a big part of the problem and -shy
JUSTICE BREYER Is there -- are there
lawsuits that could say that there was
negligence in determining in a different
country who the persons were or the conditions
under which the money would be spent Is that
an American lawsuit saying what youve done
here is commit the act of negligence or failure
to be a fiduciary here
MR VERRILLI Thats this lawsuit
Thats this lawsuit Justice Breyer Thats
exactly what theyre alleging
CHIEF JUSTICE ROBERTS Well but I
mean is that consistent with our opinion in
the OBB case which I think -- if the complaint
is based the gravamen of the complaint not
specific steps along the way and that was the
issue we dealt with in that case
And I appreciate the fact that its
you know to some extent dependent on the facts
and particular allegations but it would seem
to me to require a lot more than simply the
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specific decisions I think where -- wheres
the gravamen or gravamen however you say it
with whats going on here
MR VERRILLI Well we would
certainly say its India of course
CHIEF JUSTICE ROBERTS Yeah
MR VERRILLI And if -- if we have to
defend ourselves on that basis we will But I
-- but I -- I think it -- it understates the
real concrete risk here And what Id like to
do to illustrate that if I could is first
talk about the organizations that are going to
be exposed in a way that they wouldnt be under
the law
And as Justice Breyer indicated
earlier its important to remember this has
been the law in the DC Circuit for decades
and theres -- and people have ordered their
affairs based on the assumption that there was
virtually absolute immunity
But with respect -- but with respect
to the consequences and the groups affected and
then the types of effects With respect to the
groups affected youve got entities like us
the multilateral development banks And
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Justice Breyers identified many of them
Now the -- the main ones are here
here in Washington DC and theyre making
their decisions here and I think critically
too there are billions of dollars of assets
here
Now were going to make the OBB
argument for sure and I hope we win if we have
to make the argument I hope we win But who
knows how courts are going to come out on that
issue
Were going to have a lot of fighting
about that There are probably going to be
matters of degree Theres certainly going to
be significant disincentives arising out of
that uncertainty
Theres a whole another group of
entities that unlike the banks at least have
articles of agreement where we can try and fall
back on those for alternative arguments of
immunity where their immunity depends entirely
on the statutory grant the International
Committee of the Red Cross the World Health
Organization the fund to fight -- the global
fund to fight AIDS and tuberculosis and
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malaria
They are all entirely dependent on the
IOIA for their immunities and those immunities
are drastically different after this And then
we do have the issue I think with some
organizations that we may even actually now be
out of our -- out of compliance with our treaty
commitments
Now whats going to happen Heres
what I think is going to happen and I think
this lawsuit helps you see it
Now the way -- the basis of this
lawsuit is the following IFC when it loans
money here its loaning money in -- in parts
of the world where private capital wont go
unless we go in there
And very often they have un-developed
legal systems and they certainly dont have
robust environmental protections or labor
protections So what the IFC has done is lien
into those put those kinds of environmental
standards and labor standards into its
agreements saying you want this money to do
this development project these are the
standards that youve got to live up to
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And -- and this lawsuit is that -shy
that the entity that we loan this money to
didnt live up to the standards and its our
fault And so were being sued here
Well its going to create -- if that
kind of a suit can go forward and hopefully it
wont be able to Mr Chief Justice but if it
can its certainly going to create an
extraordinary disincentive for organizations
like ours to lien into those kinds of standards
because were going to be hoist by our own
petard
Now weve also got a robust internal
accountability mechanism where if people think
something has gone wrong on one of our
projects they can come to us and they can say
-- they can say look theres a problem here
And they -- and we investigate We take
internal remedial measures if we find theres a
problem
Well you know the factual basis for
the lawsuit is the report of our internal
accountability process
So if they can just grab that and take
it into court and make it the basis for a class
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action tort lawsuit in which they can make a
claim for all this money its going to create
a powerful disincentive for us not to engage in
that kind of self-policing activity
And I would submit that you know
even if things ultimately work themselves out
under the FSIA and I hope they -- I hope we
dont have to deal with that but even if we
do its going to take a very long time There
are going to be a lot of difficult cases at the
margin There are going to be very serious
disincentives immediately
And conversely you know were a big
fat target here These organizations have lots
of money And of course foreign plaintiffs
want to sue here They can bring a class
action They get liberal discovery They can
get punitive damages They get all of these
advantages by suing here
So instead of suing the person that
actually injured them the power plant in
India they come here and sue us
And I really think what you are going
to see here is that this is just going to
become another version of the sorts of
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foreign-cubed lawsuits that the Court has been
concerned about under the Alien Tort Statute
where the international organization is just
going to be subbed in for the foreign defendant
and its going to be subbed in in a situation
where were going to have a very significant
pile of money
And if I could just close with this
thought -- Im just going to pick up on Justice
Breyers thought -- the law in the District of
Columbia where virtually all these
organizations have been housed are
headquartered has been virtually absent
immunity under DC circuit law for decades
Thats the standard everybody has been
operating on
Nobodys suggested that anything has
gone wrong under this statute that there are
any deleterious policy consequences that the
interests of the United States are adversely
affected in any way In fact if you look at
the amicus brief from the former Secretaries of
Treasury and State they think that the policy
of the government arguing now is going to
disrupt the United States ability to function
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effectively with these organizations
It has all been fine And -- but
theyre asking you essentially to repeat a
metaphor to jump off a cliff And hopefully
it will be a soft landing But we dont know
that And it could easily result in a lot of
disruption to the good work that these
organizations do
And I guess what I would suggest is
that if thats going to happen it ought to
happen through legislation Congress can look
at this Congress can change the law if it
wants to But this has been the law for a very
long time There is no evidence that it has
done anything other than work well
And therefore I think the Court
should affirm the DC Circuit Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Four minutes Mr Fisher
REBUTTAL ARGUMENT OF JEFFREY L FISHER
ON BEHALF OF THE PETITIONERS
MR FISHER Thank you Id like to
make four points and Id like to start with the
text of the statute itself and simply say when
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Mr Verrilli talks about the Neder Doctrine and
the Common Law Doctrine that you look at the
term a terms meaning at the time of
enactment Hes mixing apples and oranges
And I think all the citations in our
reply brief should make it absolutely clear
that theres a doctrine on the one hand that
talks about incorporating a body of law and
theres a doctrine on the other hand about
giving meaning to a specific term Were in
the former camp here
And as to the point about whether the
common law was evolving at the time two
things Well stand on the papers as to the
fact that it was somewhat in flux
But the more important point is even
if it werent in flux it wouldnt matter one
wit because the other side is making a
sweeping proposition which is any general
reference to common law is fixed in time
That would disrupt any number of
federal statutory regimes from the Federal
Tort Claims Act enacted the year after this
statute the Equal Access to Justice Act the
federal governments piracy statute Federal
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Rule of Evidence 501 I could go on and on
with federal statutory regimes that reference
the common law in exactly the same way the
statute does here
The Civil Rights Act of 1866 if you
want one more All of those would come out the
other way from this Courts jurisprudence and
from all the understanding if the other side is
right about statutory interpretation
So I think the only thing the other
side has is they have a bunch of policy points
to make for this Court
Now we dont think they should
control but let me answer them So first as
to our treaty obligations So one about at the
moment of enactment My friend kept saying
that there were various agreements in place
that required virtually absolute immunity
None of the agreements use those
words Instead what those agreements said is
that certain organizations were entitled to
immunity to allow them to perform their
necessary functions Thats a very different
thing than absolute immunity
And its very different because none
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of the organizations involved were performing
Justice Sotomayor commercial activities that
were essential to their core functions not the
UN not any of the other organizations
So we werent in breach of any treaty
rights And if you have any doubt on that I
would urge you to look to the federal
governments position then and now Its not
just a brief filed in this Court
It is the position that four different
Presidential Administrations have taken The
Carter Administration right after the FSIA was
passed the George H W Bush Administration
the Clinton Administration and now the Trump
Administration have all consistently held that
the FSIA rules are incorporated into the FSIA
Next on the floodgates concern I
explained earlier and I hope you will think
about the fact that while the core activities
of the IFC might be commercial activity not
all of the IFCs activities are and certainly
not all the activities of international
organizations are
But let me add one more thing My
friend talked about big lawsuits of ruinous
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liability Well theres two very easy ways to
control that
One is to the extent any claims are
on contracts they can write their own
contracts and negotiate their own contracts
As the Solicitor General points out they can
even deal with third-party beneficiaries in
their contracts if they choose
Secondly as to tort claims they can
and in fact commonly do indemnify themselves
against tort lawsuits In this very case
their agreement indemnifies them against any
judgment and all legal fees
So these organizations have every
manner of method to deal with any potential
liability And in fact they are which sort
of belies the suggestion that they think
theyre absolutely immune from lawsuit
Finally let me say one thing about
the so-called foreign cubed problem or the
facts of this case Now obviously we think
that we would satisfy the gravamen test They
have never made that argument And if they
want to make it we can -- we can have that
conversation in the lower courts
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But bear in mind what youre being
asked to do in this case is to announce a
categorical rule for all cases dealing with
international organizations
So my friend in the Solicitor
Generals Office talked about just regular tort
slip and fall cases and the like in the United
States Let me give you one other thing to
think about
Some international organizations
actually do their work in the United States
The border cooperation -- the Border
Environmental Cooperation Commission does
wastewater treatment plants in Texas and
California
I cant think of any reason why they
would be immune from those infrastructure
projects in a way that no private business or
public government would be
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1206 pm the case
was submitted)
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1 392151723 4122 4223 433
452 462 4718 4817 5220 57
allegations [1] 5624
alleging [1] 5615 B
1108 [2] 115 32 20 651824 allow [3] 2321 246 6522 back [22] 44 61420 10513 11
1206 [1] 6822 Absolutely [3] 3113 646 6718 allowed [1] 2610 17 154422 172425 1911 226
1602 [1] 1412 Access [1] 6424 allows [3] 231220 242 4425 4524 4610 4720 5247
17-1011 [1] 34 accident [1] 2615 almost [2] 719 253 22 537 5820
1866 [1] 655 accompanying [1] 4111 already [4] 311521 323 4118 backwards [4] 514 23161724
1904 [2] 614 1725 accomplish [1] 4913 alternative [1] 5820 bad [1] 1416
1934 [1] 49 according [2] 1817 5110 Altmann [1] 1318 bank [13] 719 81822 98 2716
1945 [17] 1013 142025 151213 accountability [2] 601423 amended [1] 1615 283455 3022 324 5434
15 1617 331 3522 36710 374 accumulated [1] 3514 American [3] 112 3721 5610 banks [9] 88910 271415 2911
388 3911 4216 437 5117 across [1] 1025 amicus [4] 122 27 2011 6222 3021 5725 5818
1946 [1] 3914 Act [15] 320 6319 1412 1724 20 amounts [1] 2411 bare [1] 1524
1952 [4] 3618 3921 4012 415 422 212 301518 347 5611 64 anachronistic [3] 425 4415 47 bark [2] 405 4315
1970 [6] 3919 4013 415101520 2324 655 24 barred [2] 2689
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1994 [1] 115 activities [11] 8517 195 2717 another [13] 323 144 167 1923 5719
2 2910 3122 4017 662192122 2122 378 3823 501625 5420 basic [1] 3413
20 [2] 28 2622
20-some [1] 2624
2018 [1] 111
21 [1] 3421
27 [1] 3717
288 [4] 2213 331 4616 4825
288a [3] 1915 2018 4823
288a(b [4] 2024 2111 2215 49
13
288a(d [1] 2110
288b [1] 343
288d [1] 1916
288d(a [1] 2110
288f [2] 4725 525
activity [23] 791820 81015 94
69 2551718 27182325 2914
17 3010 31211 322 553 614
6620
actors [1] 2912
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actually [4] 4111 596 6121 68
11
ad [1] 4612
add [3] 1424 2510 6624
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address [4] 417 78 2423 403
adjust [2] 1212 1720
Administration [4] 66121314
5817 6125
answer [11] 71122 10191920
1817 2514 451414 558 6514
answered [1] 436
antiquated [1] 1816
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APPEARANCES [1] 117
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6
apply [7] 1010 161 1919 2215
basically [2] 1822 5011
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2125
bear [1] 681
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8 6322
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better [1] 2019
3 15 2521 507 5512 between [2] 513 5214
3 [1] 24 Administrations [1] 1825 appreciate [1] 5622 beyond [2] 3712 3822
30 [1] 2622 Administrations [1] 6611 appropriate [1] 5111 big [5] 2223 3022 564 6113 66
31 [2] 111 4113 adopt [1] 4318 archives [1] 213 25
33 [1] 211 adopting [1] 47 area [2] 171618 billions [1] 585
4 adoption [1] 1610
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arent [1] 5112
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bit [2] 363 5510
blue [1] 481
45 [1] 4421 advantages [1] 6119 arguing [1] 6224 bodies [1] 539
5 5 [1] 1612
501 [1] 651
527 [1] 3420
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argument [24] 114 225912 34
7 5111 625 1410 1914 2010
2213 2314 337 3521 3710 46
9 4822 5889 6321 6723
arguments [2] 416 5820
body [4] 32325 425 648
border [2] 681212
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bounds [1] 1714
branch [11] 1024 1481318 151
6 affected [3] 572224 6221 arising [1] 5815 161924 398 4015 5012
63 [1] 214 affirm [1] 6317 Armed [1] 63 breach [1] 665
6a [1] 481 afford [2] 296 5219 articles [1] 5819 break [1] 493
8 afraid [2] 1625 523
Africa [1] 3023
Asia [1] 3023
Asian [1] 284
Bretten [2] 4325 441
BREYER [40] 43 513162022 6
80-some [1] 2623 African [1] 285 assets [1] 585 16 717 817 912 108 1117 12
A agencies [1] 3819
agree [3] 2018 253 5518
Assistant [1] 120
Association [1] 286
22 133 147 157 238111923
24259151821 2712 282914 am [2] 115 32
agreed [1] 294 assume [3] 1221 1711 222 301619 3147 4420 4515 467 ability [4] 12121315 6225
agreement [4] 282325 5819 67 assuming [1] 277 5524 56514 5715 able [7] 1023 2423 2513 264 32
12 assumption [2] 1223 5719 Breyers [4] 164 504 581 6210 20 458 607
agreements [5] 2821 5923 65 assurance [1] 318 brief [16] 618 115 364 377918 above-entitled [1] 113
171920 assure [3] 30619 4218 41121314 482 497 511820 abroad [1] 554
agricultural [1] 84 attenuated [1] 2523 6222 646 669 absent [1] 6213
AIDS [1] 5825 authority [7] 212425 2241114 briefs [1] 4522 absolute [33] 1922 201 22310
AL [1] 13 4619 475 bring [1] 6116 20 2610 282025 3215 331215
Alan [1] 1624 available [3] 11810 412 broaden [1] 559 21 34117 3524 361622 383
Alien [1] 622 BUDHA [1] 13
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70Official - Subject to Review
building [1] 2613
bunch [1] 6511
Bush [1] 6613
business [2] 1414 6818
businesses [1] 4422
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C California [2] 118 6815
call [1] 412
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capability [1] 529
capital [1] 5915
captures [1] 2718
Carcieri [1] 67
care [1] 5516
Career [1] 63
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Case [35] 34 4189 548 6236
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191 2117 2511 34182122 36
2 404 4724 561821 671121
6822122
case-by-case [2] 4612 471
cases [13] 413 61 92 158 1824
269 3415 4424 452020 6110
6837
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Certainly [7] 1313 402 575 58
14 5918 608 6621
cetera [4] 48699 5321
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characterization [2] 367 4512
charter [6] 2816 311920 3910
1125
Chase [1] 618
CHIEF [15] 339 20713 3349 34
24 52216 5425 5616 576 607
6318 6820
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Circuit [4] 1814 5717 6214 63
17
circumstances [1] 3224
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Civil [1] 655
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325 511414161719 646
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Clinton [1] 6614
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Columbia [1] 6211
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656
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541010
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11
Committee [1] 5823
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17
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Congress [36] 1023 1125 1224
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532 631112
Congresss [1] 1215
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6219
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Contoe [1] 1624
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19 40713 417
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CORPORATION [2] 16 35
correct [3] 136 1924 4725
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counts [1] 2914
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course [9] 621 3422 352 3823
4123 5325 5412 575 6115
COURT [31] 1114 310 6824 15
1718 1824 2014 2721 3213 33
310 34131925 351715 361
131416 371 452324 6025 62
1 6316 6512 669
Courts [6] 523 1518 2520 4519
20 657
courts [9] 1423 2722 309 3218
531522 5414 5810 6725
create [4] 1121 6058 612
creates [1] 4617
Criminal [1] 63
critical [2] 5024 5125
critically [1] 584
Cross [1] 5823
crystal-clear [1] 2824
cubed [1] 6720
curiae [3] 122 28 2012
D DC [7] 1102124 2616 5717 58
3 6317
damages [1] 6118
date [1] 1723
dates [1] 613
day [1] 1817
DC [1] 6214
deal [10] 188 2021 2223 2425
3022 4025 4821 618 67715
dealing [1] 683
deals [1] 2123
dealt [3] 2819 552 5621
debates [1] 4314
decades [2] 5717 6214
decide [6] 527 913141923
decides [2] 1516 544
decision [3] 2520 342021
decisions [4] 5313 5525 571 58
4
decouples [1] 4813
decoupling [1] 525
decrease [1] 136
default [2] 126 1720
defend [1] 578
defendant [1] 624
degree [1] 5814
deleterious [1] 6219
denying [1] 315
Department [15] 121 56 917 18
25 198 2823 3525 36101214
402 4546 4611 472
Departments [2] 54910
dependent [2] 5623 592
depends [1] 5821
deploy [1] 5313
deployed [1] 5320
describe [1] 3615
described [1] 1510
describes [2] 3912 465
describing [1] 2218
designated [1] 2623
desperate [1] 443
detail [2] 501414
detailed [1] 5525
determination [2] 1415 4612
determining [1] 567
development [13] 271415 2845
56 2911 302124 5434 5725
5924
dichotomy [1] 1916
dictates [1] 3517
difference [1] 5213
differences [1] 493
different [20] 7323 97 171321
181 2111 3818 4020 4416 46
17 47811 517 567 594 6523
25 6610
difficult [1] 6110
diplomatic [2] 2222 418
diplomats [4] 4138 491018
direction [2] 3956
directly [2] 3122 559
discarded [1] 204
discovery [1] 6117
discussed [1] 5118
discusses [1] 114
discussing [1] 1917
discussion [1] 2017
disincentive [2] 609 613
disincentives [2] 5815 6112
dispute [3] 322 42 82
disputes [2] 261212
disrupt [2] 6225 6421
Heritage Reporting Corporation Sheet 2 building - disrupt
71Official - Subject to Review
disruption [1] 637
District [1] 6210
doctrine [8] 18581819 64127
9
dog [2] 405 4315
doing [5] 194 267 3625 4017 52
17
dollars [1] 585
domestic [3] 2612 3217 5322
DONALD [3] 124 210 337
done [3] 5610 5920 6315
doubt [2] 1913 666
doubts [2] 2511 264
down [5] 1722 182 1925 493 50
22
dozens [1] 561
draft [1] 203
drafting [2] 316 2119
drastically [1] 594
draw [2] 5113
drawing [1] 5213
driving [1] 2615
E each [3] 372324 5311
earlier [2] 5716 6618
easily [1] 636
easy [1] 671
effect [3] 61 364 382
effectively [2] 5123 631
effects [1] 5723
either [2] 94 156
elaborate [1] 5124
element [1] 355
eliminate [2] 259 476
ELLIS [31] 120 26 2091013 21
21 2212 23921 2447141719
23 2621 27481013 2881115
294820 3018 313613 328
employees [3] 214 2221 486
enact [1] 304
enacted [11] 1616 3225 3319 38
89 412325 42817 4621 6423
enacting [1] 4225
enactment [6] 75 17910 4410
644 6516
encourage [1] 3024
end [4] 425 358 421618
ended [1] 383
enforcement [1] 83
engage [3] 197 2724 613
enjoy [1] 58
enjoyed [2] 313 1210
enough [2] 2523 2921
ensue [1] 5021
ensured [1] 4220
enter [4] 3011212 329
entered [1] 2820
entire [1] 2021
entirely [3] 4617 5821 592
entities [3] 4423 5724 5818
entitled [3] 319 1922 6521
entity [1] 602
environmental [3] 591921 6813
Equal [1] 6424
equivalence [3] 4219 5113
equivalent [1] 424
era [2] 181819
especially [5] 324 1021 18419
5316
ESQ [6] 11824 2361013
essential [1] 663
essentially [3] 2124 5510 633
established [2] 351821
ET [5] 13 48699 5321
Even [30] 63 8816 107 1110 12
1620 1424 1816 19345 256
10 265 2714141415 361218
427 4815 521722 596 6168
6416 677
event [1] 5518
everybody [2] 4121 6215
everybodys [1] 277
everything [4] 96 1013 2534
evidence [3] 393 6314 651
evolve [4] 1620 431921 5424
evolves [2] 542222
evolving [2] 3313 6413
Ex [1] 1514
exact [2] 625 1916
exactly [8] 124 1714 237 3224
4211 5415 5615 653
example [6] 719 81 198 2412
3725 543
examples [2] 1025 3720
exception [5] 79 256 271925
349
excuse [1] 5418
executive [16] 1024 1481318
151161924 3410 398 4014
416 462025 475 5012
exemptions [2] 4848
exist [1] 194
existence [2] 4715 4810
expect [2] 4025
explained [3] 2722 497 6618
exposed [1] 5713
extent [3] 394 5623 673
extraordinary [1] 609
F face [2] 461423
fact [12] 2512 3123 393 464 47
13 487 5622 6221 6415 6619
671016
facts [3] 4418 5623 6721
factual [1] 6021
failed [1] 391
failure [1] 5611
fair [3] 366 373 4511
fairly [1] 5525
fall [4] 1911 2614 5819 687
far [4] 201719 437 458
fat [1] 6114
fault [1] 604
favor [2] 76 3112
federal [8] 1210 1823 642222
2525 652 667
fees [1] 6713
few [1] 723
fiduciary [1] 5612
fight [2] 582425
fighting [1] 5812
filed [3] 4114 473 669
Finally [1] 6719
FINANCE [2] 16 35
financial [2] 814 329
find [7] 2923 401415 4316 458
481 6019
fine [1] 632
fingerprint [1] 5012
first [10] 7123 102 1412 1610
1724 2324 351 5711 6514
FISHER [23] 118 2313 3679 5
12151721 10418 1381013 16
31321 173 4425 63202123
fisheries [1] 81
fit [2] 106 1520
five [3] 818 389 523
fixed [8] 212 2219 331216 495
6 533 6420
floating [1] 534
floodgate [1] 279
floodgates [3] 267 3116 6617
flux [6] 189 3523 361520 6415
17
focus [1] 3213
following [1] 5913
foolish [1] 1816
foreign [39] 3131819 7141518
812 97 1216 19720 219 234
9 2512 3219 3324 391622 42
2910 4320 489111425 4919
51319 52681019 6115 624
6720
foreign-cubed [1] 621
forever [1] 44
forgive [1] 1623
form [5] 1172123 1434
former [2] 6222 6411
forth [1] 4421
forward [8] 131424 142 2513
265 32314 606
foundation [1] 5116
founding [2] 620 548
Four [3] 632024 6610
Francisco [2] 5115 548
fraud [3] 342323 356
friend [6] 2016 2120 254 6516
6625 685
friends [7] 344 3920 4414 4510
468 4723 5022
front [2] 426 444
frozen [1] 2117
FSIA [10] 1411 15423 2718 297
5515 617 66121616
fulfill [3] 3320 422125
full [5] 354 4816 4918 522025
fully [1] 1023
function [1] 6225
functional [5] 519 538 541719
23
functions [3] 5123 6523 663
fund [2] 582425
funded [1] 555
funds [2] 196 5323
further [1] 332
future [1] 102
G gave [5] 517 124 349 382 4514
General [7] 120 322 113 1716
1811 6419 676
Generals [1] 686
generally [1] 5416
George [1] 6613
gets [1] 4820
getting [3] 923 148 5221
GINSBURG [5] 326 3520 4513
17 4821
Ginsburgs [1] 436
give [24] 56 61722 824 1018 11
21 1221115 131 15171920
3016 31814 3719 448 45415
4916 518 5417 688
given [10] 41 15122 175 1914
2211 3115 349 361
gives [4] 31117 812 1116
giving [1] 6410
Glad [1] 2423
global [1] 5824
gloss [1] 4413
goal [1] 1411
Gorsuch [6] 410 163142225
1813
got [9] 510 2317 289 467 4918
5513 5724 5925 6013
gotten [1] 3715
government [7] 127 318 3811
48911 6224 6819
governments [4] 92 4522 6425
668
governmental [1] 123
governments [11] 31319 812 9
1 12110 219 23410 2720 32
20
governs [1] 3511
grab [1] 6024
granddaddy [1] 4010
grant [8] 2023 2225 2313 246
4621 4816 5121 5822
granted [4] 4624 4878 516
granting [1] 4117
grants [2] 824 302
gratified [1] 556
gravamen [7] 25222425 5619
5722 6722
great [3] 188 2425 4025
gross [1] 4625
group [2] 710 5817
groups [2] 572224
guarantee [1] 5522
guess [6] 922 299 4213 4423
5517 639
H
Heritage Reporting Corporation Sheet 3 disruption - guess
72Official - Subject to Review
half [1] 2810 importing [1] 1419 11 595 56101314 591113 60122 61
hand [3] 4823 6479 impose [1] 5321 itself [7] 716 811 116 2416 372 1 6718
happen [4] 59910 631011 incentives [1] 142 4218 6325 lawsuits [5] 319 566 621 6625
hasten [1] 1424 include [1] 561 J 6711
headquarter [1] 1022 Including [1] 2711 lay [1] 1925
headquartered [4] 1022 2619 inconceivable [2] 43812 JAM [2] 13 34 lead [4] 153410 319
25 6213 incorporate [1] 3518 JEFFREY [5] 118 2313 37 63 least [4] 186 2410 497 5818
headquarters [2] 2615 292 incorporated [6] 325 72 169 33 21 leave [1] 420
Health [1] 5823 14 3423 6616 JONATHAN [3] 120 26 2010 leaves [1] 5512
hear [2] 33 557 incorporates [2] 5067 JR [2] 124 210 led [1] 449
heard [2] 4425 4822 incorporating [2] 509 648 judge [1] 1319 left [1] 2016
heart [2] 501516 incorporation [1] 4912 judgment [2] 4711 6713 legal [2] 5918 6713
heightened [1] 144 increase [1] 226 judgments [3] 531925 545 legislation [3] 813 175 6311
held [2] 309 6615 indeed [4] 427 187 203 Judiciary [2] 619 1724 legislative [1] 1119
helps [1] 5911 indemnifies [1] 6712 July [1] 388 lend [2] 423 2412
hewing [1] 3621 indemnify [1] 6710 jump [2] 5514 634 lending [8] 889101623 2719
historical [4] 393 441318 4512 India [4] 2623 575 6122 juridical [1] 5113 2910 5525
history [4] 316 1119 2119 2818 Indian [2] 47 68 jurisdiction [1] 5413 lends [1] 302
hoc [1] 4612 indicate [1] 3123 jurisprudence [2] 523 657 lens [1] 712
Hoffman [1] 1514 indicated [1] 5715 Justice [96] 121 339 4310 513 less [1] 229
hoist [1] 6011 indicators [1] 4720 162022 616 717 817 912 108 Letter [6] 361919 3921 403 437
hold [1] 3723 individualized [1] 1417 1117 121822 133591112 14 465
Honor [4] 2420 365 4024 494 individuals [3] 419 491017 67 156 1634142225 1812 20 level [3] 3719 387 5225
Honors [1] 558 infer [2] 351616 713 2121 238111923 24259 liability [2] 67116
hope [6] 5521 5889 6177 6618 infrastructure [1] 6817 151821 2617 272691111 28 liberal [1] 6117
hopefully [2] 606 634 initial [1] 4022 2914 2938 301619 3147 32 lien [2] 5920 6010
hornbook [1] 1010 injured [1] 6121 6 33410 34524 3520 3612 40 light [1] 3317
hornbooks [1] 43 injuries [1] 262 1619 42715 4356 4420 4513 limited [1] 1224
host [3] 2025 217 5316 inquiry [1] 358 1517 467 4721 4821 504 522 list [1] 3020
housed [1] 6212 insertion [1] 69 16 5425 5524 5651416 576 little [2] 102 5510
however [1] 572 instance [1] 2220 15 581 607 629 6318 6424 66 live [2] 5925 603
I instead [2] 6120 6520
institutions [2] 81823
2 6820
K loan [3] 820 2924 602
loaning [1] 5914 idea [4] 14816 1618 2618
identified [1] 581
IFC [10] 710 8111919 256 283
323 591320 6620
IFCs [2] 3120 6621
II [1] 446
illustrate [1] 5711
IMF [6] 283 302 37202525 388
immediately [2] 407 6112
immune [4] 215 252 6718 6817
immunities [19] 2025 2216 234
instructions [1] 5011
intended [2] 347 513
Inter-American [1] 284
interest [1] 1114
interests [1] 6220
interfere [1] 3110
internal [3] 60131922
INTERNATIONAL [37] 16 3511
17 422 72224 824 1025 1421
1921 2221 232 251 286 3222
3323 4010 421 4621 477 485
KAGAN [6] 2121 2938 42715
435
keeps [1] 4824
kept [1] 6516
key [2] 542020
kind [5] 825 453 5124 606 614
kinds [5] 716 2618 3820 5921
6010
knowing [1] 101
knows [2] 198 5810
loans [5] 2912131822 5913
lobby [1] 1023
locate [1] 1014
lock [1] 175
long [5] 45 1011 1322 619 63
14
look [32] 61315 724 911 108 13
18 168121416 1713 2021 21
19 2311 2817 311920 351 37
10 4111 4412 45119 4623 50
10 547 5511 6017 6221 6311 3815172121 391213 4118 131924 5018 51481221 526 L 642 667 4622 4848 49916 5214 5933 23 5822 623 6622 68410 labor [2] 591922 looked [4] 44 158 3020 4524
immunity [119] 312171820 419 Interpol [1] 83 landing [2] 5515 635 looking [2] 3523 212425 559 9152125 1024 interpret [1] 1017 language [8] 1017 1518 202 21 looks [3] 3618 3812 4313 11672123 1229911161925 interpretation [2] 3415 659 13 343 359 421215 lot [10] 2017 221 2814 319 446 13120 145141721 15219 16 interpreted [1] 343 last [1] 49 5516 5625 5812 6110 636 1 191922 20124 213925 223 interpreting [2] 619 359 late [1] 4120 lots [2] 420 6114 991922 2337131415 2436 intervention [1] 5322 later [3] 4916 3810 lower [3] 2722 309 6725 101125 259 26510 28152025
297 3025 3121 3251521 33 investigate [1] 6018
inviolable [1] 213
latter [1] 1717
Laughter [4] 172 2318 241 55 M
121522 3411117 3523 36110 involved [2] 149 661 20 made [10] 53 1223 1415 18910
15172224 37121319 3847 39 IOIA [21] 31115 11816 2023 22 law [46] 32425 61121 714 82 3924 469 4710 561 6723
215161722 411822 4223 434 17 2624 331120 3718 3869 1056 131516 1419 151212 mail [1] 3422
920 448 4525 463 47618 48 22 391 411921 4314 4410 46 15 1620 17151618 18567 21 main [1] 582
17 5017 516921 522025 53 18 498 593 14 3314 3515 3619 383 439 malaria [1] 591
14 5513 5720 582121 6214 65 ISMAIL [1] 13 20 4524 462 479 4911 508 53 managing [1] 81
182224 isnt [6] 1618 2513 31910 3711 22 571417 621014 631213 64 manner [1] 6715
important [5] 1324 502 5317 57 4419 281320 653 many [9] 413181818 725 1025
16 6416 isolation [1] 2020 laws [1] 306 2618 322 581
importantly [1] 257 issue [6] 1219 211116 5621 58 lawsuit [14] 1223 15225 4723 margin [1] 6111
Heritage Reporting Corporation Sheet 4 half - margin
73Official - Subject to Review
market [2] 820 2918
massive [2] 5324 545
match [1] 4418
materiality [2] 3423 355
materials [4] 372 426 4413 45
12
matter [7] 113 1716 466 5016
16 515 6417
matters [1] 5814
mean [14] 4111213 64 914 248
251 371 4211 451819 5212
5418 5617
meaning [7] 179 3315 351518
22 64310
means [4] 524 3517 421620
meant [3] 64 223 2910
measure [1] 126
measures [1] 6019
mechanism [2] 4617 6014
member [1] 5325
members [3] 486 5224 539
mentioned [2] 1813 417
mess [1] 453
metaphor [1] 634
metes [1] 1714
method [1] 6715
might [2] 718 6620
mind [2] 523 681
minimum [1] 1524
minute [2] 3722 5124
minutes [2] 523 6320
mission [1] 444
mistake [1] 53
Mister [1] 293
mixed [1] 923
mixing [1] 644
modern [1] 1817
moment [5] 4115 105 3921 65
16
monetary [1] 411
money [14] 41223 820 2413 30
7 541 569 59141423 602 612
15 627
months [1] 389
morning [2] 2017 3116
most [6] 232 257 3316 4722 53
16 551
move [3] 3611 515 535
moving [1] 3623
much [5] 141 2517 3112 395 40
21
multi-country [1] 5211
multilateral [1] 5725
multinational [1] 2911
must [4] 251718 351616
N Nader [2] 341921
narrow [1] 4915
narrower [1] 499
nations [4] 418 397 4011 5412
natural [1] 354
nature [2] 123 2924
necessary [4] 1720 3510 3912
6523
Neder [1] 641
need [7] 1116 306 3124 3268
3712 4318
needed [2] 291 3823
negligence [2] 56711
negotiate [4] 1214 143 2825 67
5
negotiated [3] 115 1220 3914
never [1] 6723
New [1] 2616
next [2] 34 6617
nexus [2] 2517 553
nobody [2] 59 925
Nobodys [1] 6217
non-commercial [1] 85
none [3] 4411 651925
normal [1] 3414
nothing [3] 101 2411 404
notwithstanding [1] 487
Number [6] 242424 2713 3115
4424 6421
numbers [1] 2621
O OAS [4] 113 1221 282224
OBB [3] 2520 5618 587
objective [1] 4914
obligations [5] 332022 409 41
24 6515
obvious [1] 4624
obviously [2] 4710 6721
occurred [2] 2622
occurs [1] 2519
October [1] 111
Office [1] 686
officers [2] 214 2220
official [1] 215
officials [2] 192021
often [1] 5917
Okay [5] 512 2323 24518 467
old [1] 187
once [2] 4315 4620
one [47] 41823 5118 6217 819
1317 14369 1622 173 1868
1113 191218 211116 2424 25
10 273 3013 3118 3618 3812
4014 4313 4722 4823 4925 50
67 54613 5512 6015 64717
65615 6624 67319 688
ones [1] 329
one-way [1] 225
ones [1] 582
only [8] 423 62 2116 225 2810
296 417 6510
open [1] 3117
opening [1] 267
operating [1] 6216
opinion [4] 69 1624 3424 5617
opponents [2] 321 61
opportunity [1] 143
opposed [1] 554
opposite [3] 417 1345
oral [7] 114 2259 37 2010 337
oranges [1] 644
order [6] 292 306 3823 4620 47
15
ordered [1] 5718
Ordinarily [1] 296
ordinary [2] 610 117
Organization [16] 1124 1421 19
321 372021 4020 4118 4622
477 4819 519 5223 5824 623
organizations [1] 2614
organizations [56] 31218 422 7
2225 824 101421 1111422
214 2221 232 2518 261923
281319 3120 3222 3323 3711
4010 4219 4427 4851424 49
17 5018 5141222 52611 53
121724 5712 596 609 6114
6212 6318 6521 661423 67
14 68410
original [2] 1118 203
originally [1] 1616
other [41] 421 6225 77 8621
23 95 13125 141019 1715 18
21 1924 2113 224 23312 24
16 2912 3212 3446 3622 39
20 441114 4511 469 4723 50
22 5221 6315 64918 657810
664 688
others [2] 1221 324
otherwise [2] 3517 408
ought [5] 813 161 3624 5321
6310
ourselves [1] 578
out [19] 6810 1413 2416 2813
4089 4325 449 5122 5411 55
9 581015 5977 616 656 676
over [7] 1620 3024 3525 4319
21 542324
overall [2] 4916 533
override [1] 5318
own [10] 615 12131317 1518
2815 5311 6011 6745
P pm [1] 6822
package [1] 411
PAGE [5] 22 3420 3717 4113
481
papers [1] 6414
part [5] 1219 1411 2122 4322
564
Parte [1] 1514
particular [6] 916 178 341820
362 5624
particularly [1] 2118
partly [1] 1120
parts [1] 5914
party [5] 2724 2923 3011113
passage [2] 416 4314
passed [5] 525 813 1316 452
6613
past [3] 41215 92
path [1] 5022
pathway [1] 156
pathways [3] 119 1721 181
pay [2] 5324 545
people [4] 369 5013 5718 6014
percentage [1] 2812
perfect [1] 183
perform [1] 6522
performing [1] 661
perhaps [1] 3110
permissible [2] 623 1321
person [3] 2320 4316 6120
persons [2] 5114 568
pertinent [1] 1618
Peru [1] 1514
petard [1] 6012
Petitioners [10] 141923 24814
38 201219 6322
phrase [1] 2020
pick [4] 164 2015 376 629
picks [1] 281
pile [1] 627
piracy [1] 6425
place [3] 4712 546 6517
plain [2] 314 1913
plaintiff [1] 311
plaintiffs [1] 6115
plant [1] 6121
plants [1] 6814
please [3] 310 2014 3310
point [17] 1718 281222 297 34
19 35111 377 4023 501924
524 53814 551 641216
points [8] 166 3115 3945 504
6324 6511 676
policies [1] 142
policy [9] 1079151516 1418
621923 6511
political [1] 1418
politically [1] 1423
position [5] 1525 1822 4610 66
810
possibly [2] 38510
potential [1] 6715
power [2] 249 6121
powerful [1] 613
practical [2] 101920
practice [1] 296
precisely [1] 3718
prescribe [2] 495 533
prescribed [1] 4716
prescribes [1] 3311
present [1] 324
presented [1] 2515
President [9] 55 1225 136 225
24 2313 243 3410 4619
Presidents [3] 1212 2214 475
presidential [4] 2123 22411 66
11
pressure [1] 446
presumptively [1] 252
presupposes [1] 4714
pretty [1] 3022
principal [1] 1113
principle [1] 614
principles [1] 5513
Heritage Reporting Corporation Sheet 5 market - principles
74Official - Subject to Review
prior [1] 65 10 394 441225 4722 512 61 397 4510 5111 57212123 seen [1] 1520
private [12] 81421 2724 2912 23 respectfully [3] 366 373 4510 self-policing [1] 614
182223 3011113 5915 6818 reams [1] 61 Respondent [4] 1725 211 338 Senate [6] 123 41111516 4224
privileges [4] 233 4622 4848 reason [17] 109 1891012 1910 Respondents [1] 269 5117
probably [3] 815 93 5813 23 2212 3222 3319 4615 511 Respondents [2] 2112 236 sense [5] 183 221 247 3317 38
problem [8] 911 137 1420 3711 8910 541521 6816 response [3] 918 4024 5410 6
564 601720 6720 reasons [7] 1621 173 517 5417 responses [1] 2419 sensitivity [1] 4025
problems [2] 149 5516 181923 responsive [1] 1115 separate [2] 818 5113
process [4] 46511 479 6023 rebuild [1] 444 rest [1] 206 serious [3] 2511 263 6111
procure [1] 144 REBUTTAL [3] 212 206 6321 Restatement [1] 5119 set [3] 218 441 499
profit [1] 820 receive [3] 2222 2310 5224 restrictions [1] 304 sets [1] 212
programs [1] 825 received [1] 234 restrictive [8] 117 265 297 36 setting [1] 176
project [1] 5924 receiving [1] 4818 1124 3713 3922 5513 settled [2] 3315 3515
projects [4] 821 555 6016 6818 reciprocal [1] 4818 result [1] 636 settles [1] 2021
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is not so much about this case but about
incentives and policies going forward they
have every opportunity to negotiate in one form
or another or to procure a heightened form of
immunity
And Justice Sotomayor let me say one
more thing to you and Justice Breyer about you
know the idea of the executive branch getting
involved This is one of the problems I
submit with the other sides argument
Remember part of the goal of the FSIA
in the first section of the Act in Section 1602
is to get -- is to get the executive branch out
of the immunity business
Congress made the determination that
it was a bad idea to have every case turning on
individualized suggestions of immunity and
executive branch political policy And so the
other side by importing the common law of
1945 would reintroduce that problem into
international organization immunity in a way
that we dont think would be very good
politically or very workable in the courts
And Id hasten to add that even under
the rule of 1945 if the question were what
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does the executive branch think about any given
lawsuit or any given immunity for any given
type of suit that would just lead you right
back to the FSIA and it would lead you back to
the same conclusion that we submit to you here
So either pathway whether Justice
Breyer you start with the way youve always
looked at cases with the word is and the
word same and the reference canon that Ive
described and say all of those things lead you
to a time of suit rule or if you start with
the law of 1945 and say what was the law in
1945
Well Hoffman and -- in Ex Parte Peru
were clear that the law of 1945 was the
executive branch decides and its not for the
Court -- this is -- Im going to give you the
Courts own language -- its not for the Court
to give immunity where the executive branch has
not seen fit to give it
And if that were the test youd come
right back to where you -- where I started
here which is that the FSIA would control or
at the bare minimum the executive branch
position in this lawsuit on the type of
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immunity that ought to apply in this situation
would control So -shy
JUSTICE GORSUCH Mr Fisher if I can
pick up on Justice Breyers question The
reference canon I take all -- all of your
points but sometimes lets say we have a
statute that -- that refers to another statute
Usually we would look at the second
statute thats being incorporated as of the
time of -- of the adoption of the first
statute Right So if -- if this statute were
to say go look at Section 5 -shy
MR FISHER Right
JUSTICE GORSUCH -- we wouldnt look
at it the way its been subsequently amended
Wed look at it as it was originally enacted in
1945
Why isnt that -- that idea pertinent
here you know when we refer to a specific
law we dont take it to evolve over time
MR FISHER So for two reasons
Justice Gorsuch and one of them if youll
forgive me is going to be something you said
in the Alan Contoe opinion
JUSTICE GORSUCH I was afraid of
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that
(Laughter)
MR FISHER But for two reasons One
is Congress has a choice to make when it writes
legislation It can lock in a given rule by
setting a specific statutory provision and says
thats the rule we want just like if Congress
uses a particular word at the time of the
enactment the meaning of that word at the time
of enactment would be what Congress -- wed
assume Congress wanted
Or Congress could do something
different which is to say look were not
sure exactly of the metes and bounds of the
law Were just going to tie it to this other
area of law as a general matter And thats
what Congress did here It did the latter
So it took an area of law as a point
of reference and said Just use that as the
default rule and then adjust as necessary And
those are just two different pathways Congress
can go down
And they date as I said all the way
back to the First Judiciary Act there in the
Sutherland treatise all the way back to 1904
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and so theres just two different pathways
Congress can go down
And it makes perfect sense I think
in a situation like this especially where you
have a common law doctrine being referenced at
least a common law at the time and one that
was indeed not just any old common law
doctrine but one that was in a great deal of
flux at the time So it made every reason -shy
it made every good reason for Congress to have
a general reference not a specific one
And then the second reason Justice
Gorsuch is the one you mentioned sitting on
the Tenth Circuit which is that as time goes
by it becomes all the more stilted or
antiquated or even foolish sometimes to try to
answer questions in the modern day according to
what some bygone era doctrine would have
required and especially a bygone era doctrine
like this
If I understand the other sides
position correctly basically the question
theyre having -- they would want every federal
court to ask in these cases is what would the
Truman Administrations State Department have
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wanted to do in this case
And when you have things like this
which didnt even -- an organization that
didnt even exist at the time sometimes doing
activities that werent even contemplated at
the time things like sovereign wealth funds
which foreign sovereigns now engage in for
example who knows what the State Department
would have thought then
I think theres every reason then to
fall back on the reference canon And if I can
say one more thing before reserving my time if
you have any doubt about just the plain text
argument Ive given you I would urge you to
compare the text in Section 288a to the text -shy
Section 288d which has the exact dichotomy
that -- that Ive been discussing today
One subsection subsection (a) says
that the same immunity rules apply and
subsection (b) says that foreign officials -shy
Im sorry international organization officials
are entitled to absolute immunity
So this is yet another reason why if
the other side were correct and if Congress had
wanted to lay down the rule they did why would
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they not have just used the absolute immunity
language in subsection (b) of subsection (d)
and that indeed was the original draft of
this act that was discarded
So I could go on but Id rather save
the rest of my time for rebuttal
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Ellis
ORAL ARGUMENT OF JONATHAN ELLIS FOR
THE UNITED STATES AS AMICUS
CURIAE SUPPORTING THE PETITIONERS
MR ELLIS Mr Chief Justice and may
it please the Court
If I could Id just like to pick up
right where my friend left off Theres been a
lot of discussion so far this morning on the
text of Section 288a We agree that the
Petitioners have the far better reading of that
phrase in isolation but I think it really
settles the deal when you look at the entire
structure of the Act
The -- the IOIA doesnt just grant
immunity in Section 288a(b) but it provides a
whole host of immunities and it does it in two
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different ways In several different
provisions the Act sets a fixed rule of
immunity So archives are inviolable and
officers and employees of the organizations are
immune from suit with respect to their official
acts
And then there are a -- a host a
collection of three provisions that set the
immunity by reference to foreign governments
Theyre Section 288a(d) Section 288d(a) and
theres Section 288a(b) the one at issue here
Respondents concede that the
referential language in those other two
provisions do refer to the state of the law as
it is today
Its only the one thats at issue in
this case that they say was frozen We dont
see how that can be and thats particularly
true when you look at the drafting history that
my friend referred to
JUSTICE KAGAN Mr Ellis before you
get to that another part of the structure is
this provision that deals with presidential
authority and thats essentially a roll-back
authority of immunity
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Doesnt that make a lot more sense
that provision if you assume that Congress
meant for there to be absolute immunity In
other words the presidential authority is a
one-way ratchet The President can only under
this provision roll it back It cant increase
it
So to me if I -- if -- if -- if -shy
if the immunity -- if the immunity is less than
absolute you would think that they would have
given the presidential authority both ways
MR ELLIS Sure The reason that
argument doesnt work is because Section 288
the Presidents authority under that provision
doesnt just apply to Section 288a(b) It
applies to all of the immunities provided by
the IOIA
And as I was just describing some of
those are fixed immunity rules that are not
absolute And so for instance the officers
and employees of international organizations do
not receive diplomatic immunity That was a
big deal at the time
And -- and yet the President cant -shy
couldnt grant that up I think what that
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provision shows is that Congress wanted to
provide international organizations at most the
immunity from suit and other privileges of
immunities that foreign governments received
and not more so
And yet Respondents are here today
asking you for exactly that more immunity -shy
JUSTICE BREYER But on that -shy
MR ELLIS -- than foreign
governments receive
JUSTICE BREYER But look whatever
other things it refers to the provision allows
the President to waive immunity not to grant
immunity And your argument is they have
immunity Right
Do I have -- I get this backwards
This is the third time Ive got it backwards
(Laughter)
JUSTICE BREYER Sorry The provision
allows the person to be sued Is that right
MR ELLIS It does allow them to be
sued
JUSTICE BREYER Okay So I was
right I had it backwards the first time but
not the second not the third all right
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(Laughter)
JUSTICE BREYER It allows the
President to waive the immunity
MR ELLIS Thats right
JUSTICE BREYER Okay It doesnt
allow him to grant the immunity
MR ELLIS It does in a sense I
mean -shy
JUSTICE BREYER But the power to
waive the immunity at least in this section
amounts to nothing if they have no immunity
because for example all they do is lend
money
MR ELLIS So -- so a couple -shy
JUSTICE BREYER Thats -- thats -shy
and the other way it seems to work itself out
MR ELLIS Understood
JUSTICE BREYER Okay
MR ELLIS A couple responses to
that Your Honor
JUSTICE BREYER Thats the question
I think
MR ELLIS Glad to be able to address
that Number -- number one just to be clear
we -- they do have a great deal of immunity I
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mean foreign -- international organizations
and foreign states are presumptively immune
And I would agree with almost everything
that -- maybe everything that -- that my friend
said about why the commercial activity
exception even with regard to IFC and -- and
most -- more importantly with regard to the
vast sweep of these organizations is not going
to eliminate immunity
I would add one more is that even a
case like this we have serious doubts I
think -- we think in fact from what we know
this suit isnt going to be able to go forward
regardless of the answer to the question
presented because in addition to having -- to
being connected in some way to commercial
activity there must be a much stronger nexus
It must be based on commercial activity that
occurs in the United States
We think the Courts decision in OBB
makes clear that the way you apply that is to
ask Whats the gravamen of this suit Its
not enough to have some attenuated connection
but whats the gravamen
And the gravamen of this suit as we
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understand it is -- is tortious conduct that
occurred in India injuries that occurred in
India And we dont think -- we have serious
doubts that this is going to be able to go
forward even under restrictive immunity
And so we do not think that what were
doing is opening the floodgates here rather
that the sort of concerns that would be barred
-- cases that would be barred by Respondents
absolute rule of immunity and would be allowed
by ours are -- are sort of quintessential
domestic disputes contract disputes with your
contractor who renovated the building the slip
and fall at the -- at the organizations
headquarters or the driving accident on the
streets of New York and DC
JUSTICE SOTOMAYOR Do you have -- do
you have any idea about how many of these kinds
of organizations are headquartered in the
United States
MR ELLIS I think the numbers are in
the 20 to 30 range Theres about -- somewhere
80-some organizations that have been designated
for protection under IOIA and 20-some that have
-- I think are headquartered in the United
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States
JUSTICE SOTOMAYOR That are
commercial like this one
MR ELLIS No no no No I did
not -- no
JUSTICE SOTOMAYOR Were -shy
everybodys assuming -shy
MR ELLIS Right
JUSTICE SOTOMAYOR -- a floodgate
MR ELLIS Sure no There are -shy
JUSTICE SOTOMAYOR Including Justice
Breyer
MR ELLIS -- there are a number of
development banks but even then even -- even
the development banks even if you talk about
the World Bank its not clear that those
commercial activities are the sorts that the -shy
the FSIA captures with the commercial activity
exception Lending there is to sovereign
governments
And -- and as the Court has been -- as
lower courts have explained that sort of
commercial activity is not the sort that a
private party could engage in So its not the
sort that the commercial activity exception
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picks up
JUSTICE BREYER Well I -- I have the
IFC the IMF the World Bank the
Inter-American Development Bank the Asian
Development Bank the African Development Bank
the International Development Association So
I -shy
MR ELLIS Sure I -shy
JUSTICE BREYER -- Ive got -- thats
only half of them
MR ELLIS Thats -- that -- Im not
sure what percentage that is I want to point
out that some of those organizations -shy
JUSTICE BREYER There are a lot
MR ELLIS -- have their own immunity
provision in the -- in their charter And so
thats what we think -- if you look at the
history thats what -- thats how it has been
dealt with for organizations that require
absolute immunity Weve entered into
agreements
I would point again to the OAS
agreement where the State Department is just
crystal-clear that what OAS did in that
agreement was to negotiate absolute immunity
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because they thought thats what they needed in
order to put their headquarters here
JUSTICE KAGAN But Mister -shy
MR ELLIS We agreed to that and we
said But hey this is not our usual
practice Ordinarily we -- we afford only
restrictive immunity We point to the FSIA
JUSTICE KAGAN Mr Ellis I -- I
guess Im not sure I -- I quite understood what
you meant As to the core lending activities
of these multinational development banks in
other words making loans where private actors
would not make loans do you have a view as to
whether that counts as a commercial activity or
not
Did you say that that would not count
as a commercial activity because theyre making
loans that the -- that the private market would
not make
MR ELLIS No Im -- Im not saying
that its -- that its enough that theyre
making loans that a -- that a private -- they
couldnt find a private party to provide Im
saying if the nature of the loan is such that
its -- its not the sort of transaction that a
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private party would enter into so think about
the IMF that grants -- that lends to sovereigns
and they do so on the requirement that the
sovereign enact certain restrictions -shy
regulations and change their -- their -- their
laws in order to assure that they dont need
the money again
That is the sort of thing thats been
held by lower courts and weve advocated is
not a commercial activity Thats just not the
sort of transaction that a private party can
enter -- enter into Its not just that a
private party didnt Its that -- that no one
-- thats not something that you can do
Thats a sovereign act
JUSTICE BREYER But can you give
me -shy
MR ELLIS Or a quasi-sovereign act
JUSTICE BREYER -- anything to assure
me because when I looked through this list I
thought that there were development banks like
the World Bank which is a pretty big deal as
well as in Asia in Africa were trying to
encourage development all over the world and
suddenly by removing the sovereign immunity
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because the plaintiff will claim this is a
commercial activity
MR ELLIS So -- so -shy
JUSTICE BREYER And youre not
denying it
MR ELLIS And so -shy
JUSTICE BREYER So what is the
assurance that the government can give us that
this isnt going to lead to a lot of lawsuits
and this isnt going to interfere with perhaps
activity that the United States traditionally
has been very much in favor of
MR ELLIS Absolutely Let me -- let
me give you a couple things I think weve
given you a number of -- of points already this
morning as to why we dont think the floodgates
are going to open
If -- if theres one more Ill say
just look at the -- the charter of these
organizations Look at the IFCs charter
They already waive suit waive immunity for
suits going directly to their core activities
They -- they in fact indicate that they -shy
they need to waive suit in these suits
And so I -- I think when youre
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talking about what are the suits that are going
to come up under commercial activity many of
them are already going forward because the IFC
and the World Bank and others have waived their
immunity
JUSTICE GINSBURG And they need to
because
MR ELLIS They need to because no
ones going to enter into a financial
transaction with them if they -- they know they
cant sue if it -- if it goes south
The other thing -- I want to also
focus the Court on the -- on the suits that we
know are not going to go forward on the
absolute immunity side Were talking about
suits by -- by US citizens and residents
about domestic conduct and theyre seeking
redress in US courts
These are the suits that foreign
governments are -- are able to be sued on and
dont have immunity And we dont see any
reason why international organizations should
not also be subject to suit in those
circumstances and we think thats exactly what
the Congress was trying to do when it enacted
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Section 288 in 1945
If there are no -- no further
questions we ask the Court to reverse
CHIEF JUSTICE ROBERTS Thank you
counsel
Mr Verrilli
ORAL ARGUMENT OF DONALD B VERRILLI
ON BEHALF OF THE RESPONDENT
MR VERRILLI Thank you Mr Chief
Justice and may it please the Court
The IOIA prescribes a standard of
virtual absolute immunity that is fixed and not
evolving We know that because the text
incorporated common law terms that had a
settled meaning of virtually absolute immunity
and because a fixed standard makes the most
sense in light of the statutory context and
purpose
Now the reason that Congress enacted
the IOIA was to fulfill treaty obligations that
committed us to provide virtually absolute
immunity Those treaty obligations did not
commit us to treat international organizations
the same as foreign states were treated They
committed us to the substantive standard of
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virtually absolute immunity
And therefore if -- if -- if the
language in section 288b is interpreted in the
way my friends on the other side suggest -shy
JUSTICE SOTOMAYOR So why didnt
Congress say that the way it did in the other
provisions of this Act And if it intended
that in no change it could have said it and
given the very exception it gave which is that
the President or the executive could reduce
immunity which was the standard at the time
MR VERRILLI So let me start with
the basic question We think if the Court
applies the normal rules of construction that
it applies in statutory interpretation cases
that Congress did say that it was providing
virtually absolute immunity
And I think a case in particular that
I would point the Court to is the Nader
decision 527 US and in particular to page
21 of the Nader decision Thats a case -shy
that case of course was about whether mail
fraud and wire fraud incorporated a materiality
standard This is an opinion by Chief Justice
Rehnquist unanimous for the Court on this
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point The Court said first we look to the
text of course and when looking to the text
if we -- if -- and in looking to the text
based solely on a natural reading of the full
text materiality wouldnt be an element of the
fraud statute
And then the Court says But that
does not end the inquiry because in
interpreting statutory language theres a
necessary second step And this is -- Im
coming to the point that I think governs here
which is that it is a well-established rule of
construction a rule of construction that
where Congress uses terms that have accumulated
settled meaning under the common law a court
must infer must infer unless the statute
dictates otherwise that Congress means to
incorporate the established meaning of those
terms Now the -shy
JUSTICE GINSBURG What about the
argument that there wasnt an established
meaning in -- what was it -- 1945 that it -shy
the -- the status of the immunity was in flux
It had been absolute but then we were going
over -- the State Department was advising the
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court whether immunity should be given in a
particular case
MR VERRILLI Theres a bit of a
suggestion to that effect in the brief of the
United States Your Honor but I would
respectfully suggest that is not a fair
characterization of where things stood in 1945
at all
It is true that some people within the
State Department in 1945 thought that immunity
should move to a more restrictive standard but
the Justice Department would not even advance
that standard in this Court at the request of
the State Department and this Court did not
describe the immunity as being in flux This
Court said the standard was virtually absolute
immunity
If one looks even in 1952 at the Tate
Letter the Tate Letter didnt say the law was
in flux in the United States It said the
United States was hewing to the standard of
virtually absolute immunity but other
countries were moving towards a standard of
restrictive immunity and therefore we ought
to reconsider what were doing
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So I just -- I mean the Court can
read these materials for -- for itself but I
just respectfully do not think its a fair
consideration of where things stood in 1945 at
all
And then if I could Id like to pick
up on a related point that came up in the brief
of the United States Its another statement
in the brief of the United States and it came
up in argument today that look this really
isnt a problem because for those organizations
that need immunity that goes beyond the -- the
restrictive immunity weve always understood
that they get -- they can go get a special
statute and theyve gone and gotten special
statutes
The United States says on page 27 of
its brief precisely because the IOIA didnt
provide that level of immunity they give these
three examples IMF World Trade Organization
and Organization of American States
Id like to take a minute and go
through each of them because it doesnt hold up
with respect to each of them With respect to
the IMF for example it is true the IMF you
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know it has a -- has a treaty There was a
statute that gave that treaty effect under US
law which ended up providing for absolute
immunity
But it cant possibly be that that was
undertaken based on any sense that the IOIA
didnt provide that level of immunity because
the IMF statute was enacted in July of 1945
and the IOIA wasnt enacted until five months
later So it cant possibly substantiate what
the government was saying
If one looks at the WTO treaty it is
true with respect to that treaty that it
committed us to a very wide scope of
immunities It said that the United -- that
the United States will commit to providing all
or virtually all of the immunities provided
under a whole different UN convention the
UN convention on specialized agencies
Now that convention has all kinds of
tax immunities and property immunities that go
way beyond what the IOIA provides So of
course they needed another statute in order to
make those treaty commitments That doesnt
prove anything about whether anybody thought
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that the IOIA failed to provide virtually
absolute immunity
In fact the historical evidence I
think really to the extent it points in any
direction it points very much more in our
direction And the best way to see that is
with respect to the way the United Nations was
treated under -- by the executive branch in
this country
Now we signed the UN charter in
1945 committed us to provide what the charter
describes as the necessary immunities Then
the UN Convention on Immunities was
negotiated in 1946 which said that the UN
should get virtually absolute immunity Not
the same immunity as foreign states virtually
absolute immunity
Now the United States did not ratify
that convention until 1970 So on the theory
that my friends on the other side have from
the moment of the Tate Letter in 1952 when
foreign state immunity became restrictive and
not virtually absolute anymore we were in
violation of the commitment we made in the UN
charter
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Now if that was true you would
certainly expect the State Department A to
address it in the Tate Letter but theres
nothing in there Its a classic case of the
dog that didnt bark And B you would expect
them to try to do something about it like get
the UN Convention ratified immediately
because otherwise we were going to be out of -shy
out of compliance with our obligations to the
granddaddy of all international organizations
the United Nations
But theres not a -- from 1952 until
the ratification of the Convention in 1970 you
cant find one word by anybody in the executive
branch ever saying that What you do find -shy
JUSTICE SOTOMAYOR What commercial
activities was the UN doing at that time
MR VERRILLI Well -shy
JUSTICE SOTOMAYOR I know today its
a very different organization but its not
clear to me that there was much going on that
was commercial at its initial stages
MR VERRILLI I take that point Your
Honor but what I would say in response is that
there was a very great deal of sensitivity
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about the whole package of -- of immunities
that were available to the UN and its
diplomats and its -- and its workers
And there was concern all along from
1952 to 1970 that -- that -- where the
executive was urging Congress to ratify the
convention but the only things ever mentioned
were the diplomats -- immunities for diplomatic
individuals
And then when you get to 1970 and you
actually look at the Senate report accompanying
the ratification this was not in our brief
but its at page 31 of the brief of the -- of
the scholars who filed the brief in support of
us It quotes the Senate report from 1970 and
what the Senate report says is were not
granting the UN any -- the UN as an
organization any immunity it didnt already
have under the IOIA
So as late as 1970 it was just quite
clear that everybody understood the IOIA
conferred virtually absolute immunity And of
course thats because it was -- it was enacted
to comply with our treaty obligations
It wasnt enacted to make sure that
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come what may that international organizations
would get treated the same as foreign states
That is -- you know thats the best way to
think about it is its just a completely
anachronistic way of thinking about the body of
materials in front of you
JUSTICE KAGAN But even what you just
said Mr Verrilli it wasnt enacted to make
sure that foreign organizations would get
treated the same as foreign states
I mean thats exactly what the
language of the thing says
MR VERRILLI Well so I guess a
couple of things about that I think the right
way to think about the language Justice Kagan
is that it was a means to an end in 1945 when
it was enacted
It was not the end in itself to assure
equivalence of treatment come what may It was
the means by which Congress ensured that it
would fulfill its treaty commitments which were
-- and those treaty commitments were to provide
virtually absolute immunity
And we know the Senate report says
were enacting this provision to fulfill our
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treaty commitments And our treaty
commitments again were not to treat them the
same They were to provide virtually absolute
immunity So -shy
JUSTICE KAGAN Do you think it was -shy
you answered Justice Ginsburgs questions about
how far we were from the Tate Letter in 1945
but do you think it was inconceivable to
Congress that the common law of immunity would
change
MR VERRILLI Well I -- I -- I cant
say that it would be inconceivable to anybody
but what I can say is if one looks at the
debates surrounding the passage of the IOIA
is once again its a dog that didnt bark
You cant find a single person
anywhere saying anything remotely like the
proposition that we need to adopt a standard
that will evolve over time because we have a
concern that foreign sovereign immunity law
will evolve over time
That just was not any part of
anybodys thinking at that time They were
trying -- you have to remember this is coming
out of the Bretten Woods system We have
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Bretten Woods We set up all these
organizations
They have a -- they have a desperate
mission in front of them to try to rebuild the
world -- the world after the carnage of World
War II Theres a lot of pressure on Congress
to get these organizations up and going and
give them the immunity we promised them so they
can go out and do their work Thats what led
to the enactment of the IOIA
It was none of these other things as
I said I really think if you look at the
historical materials its the -- the gloss
that my friends on the other side are trying to
put on it is completely anachronistic
Theyre taking a different concept
that theyve come up with now and trying to
retrofit the historical facts to match it and
it just isnt right
JUSTICE BREYER Is that -- is that -shy
the Russians at that time 45 and so forth
were putting all these businesses into state
entities So my guess is there were -- there
were a number of cases and what I thought I
heard Mr Fisher say is if we really go back
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and look at this well see that the status quo
before this passed was not absolute immunity
but the status quo was a kind of mess where
sometimes the State Department would say give
them immunity and sometimes the State
Department would say not
Now what is the actual situation as
far as youve been able to find it
MR VERRILLI Well I dont -shy
respectfully with respect to my friends on the
other side I dont think thats a fair
characterization of the historical materials
JUSTICE GINSBURG Thats the same -shy
the answer you gave to me is the answer you
would give to Justice Breyer
MR VERRILLI Yes
JUSTICE GINSBURG Same question
MR VERRILLI Yes I mean its just
not there I mean look at what this Courts
cases said This Courts cases didnt say
anything like that
The -- the -- the governments briefs
to this Court didnt say anything like that
When this Court has looked back on the law in
Verlinden and in Samantar it hadnt said
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anything like that It said the standard was a
common law standard of virtually absolute
immunity
And thats in fact how the Tate
Letter describes it too And then as a process
matter -shy
JUSTICE BREYER Okay I got it
MR VERRILLI -- my friends on the
other side have made this argument that well
our position would also require you to go back
to the process of the State Department making
an ad hoc case-by-case determination but
thats wrong too
And thats clear on the face of the
statute that its wrong And the reason -- and
-- and thats right in Section 288 This
creates an entirely different mechanism
What the -- what the IOIA says is that
-- that the President shall have the authority
under executive order once Congress has
enacted a statute to grant an international
organization the privileges and immunities
And if you look at the face of the
statute its obvious that they are granted on
a categorical basis in gross by an executive
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order not on a case-by-case basis by the State
Department when -- when a lawsuit is -- or when
a -- when a lawsuit is filed
And then similarly in terms of the
Presidents authority as to an executive order
to reduce or eliminate the -- the immunity of
an international organization that -- its -shy
again its completely different than the
situation that -- than the common law process
at work So obviously Congress made a
judgment that it was going to put a different
structure and system in place
And the fact that Congress did that I
do say -- I do think quite clearly presupposes
that theres a -- the existence of a
substantive standard being prescribed And the
substantive standard as I said is virtually
absolute immunity
And then in terms of the structural
indicators in the statutory text going back to
a question you asked Justice Sotomayor I
really think the most telling one to -- to
show you I think why my friends on the other
sides case is completely anachronistic and
were correct -- is Section 288f which you can
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find at page 6a of the appendix to the blue
brief
That provision says that the
privileges exemptions and immunities of
international organizations and then of -- of
members and employees et cetera shall be
granted notwithstanding the fact that similar
privileges exemptions and immunities granted
to a foreign government et cetera et cetera
may be conditioned upon the existence of
reciprocity by that foreign government
So right there in the text it
decouples the treatment of international
organizations from the treatment of foreign
states Even in a situation in which the
United States would not grant the full range of
virtually absolute immunity because it wasnt
being -- receiving reciprocal treatment this
statute says the international organization
gets it So -shy
JUSTICE GINSBURG How do you deal
with the argument that we just heard that we
can compare 288a on the one hand which -shy
which keeps the international organizations in
tune with foreign sovereigns and 288 -- was it
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b and d
MR VERRILLI Yes I do think that
the -- the differences break down into two
categories Your Honor There -- some of the
provisions do prescribe fixed standards
Thats true But those fixed standards as we
explained in our brief or at least tried to
are always situations in which the IOIA is
conferring a narrower set of immunities on -shy
on diplomats and individuals than the common
law would have at the time
So incorporation of the standard in
the way this 288a(b) did wouldnt accomplish
the objective there because there was -- they
were quite consciously trying to narrow the
overall scope of immunities and not give the
individuals who worked at these organizations
the same full treatment that diplomats got who
-- from foreign states
Now the second subcategory are the
provisions where the -- the statute says that
their -- the treatment shall be the same But
theres two things about that that are
significant
One is it says they shall be the same
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as under another statutory provision And as
we said we think thats vitally important
here We think its quite clear that in
addition to Justice Breyers points about the
reference canon that the reference canon
applies when one statute incorporates another
It doesnt apply when one statute incorporates
the common law And here they were
incorporating statutes
And if you look at those provisions
anyway theyre basically just instructions to
the executive branch when do you fingerprint
the people when theyre coming in What do you
do about that -- this detail or that detail
They dont go to the heart of the
matter at all And the heart of the matter
here is the immunity being conferred on these
international organizations
I just want to make a point about that
and then if I could talk about the
consequences that will ensue I think if we go
down the path that my friends on the other side
are suggesting
I think this is a critical point I
just want to make sure its clear Another
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reason why you shouldnt draw this equivalence
-- and it cant be that Congress really
intended to draw an equivalence between foreign
states and international organizations such
that they would just move in tandem no matter
what -- is that immunity is granted for
different reasons
The reason you give an international
organization immunity is a functional reason
not a status reason Its not about according
the appropriate respect to the sovereigns
because international organizations arent
sovereigns Theyre separate juridical
persons And whats quite clear -- its clear
from the U -- the San Francisco report on the
foundation of the UN its clear from the
Senate report in 1945 its clear from all the
commentators that we discussed in our brief
its clear from the Restatement of Foreign
Relations which weve cited in our brief that
you grant immunity to international
organizations so that they can carry out their
functions effectively And -- and just take -shy
let me take a minute and kind of elaborate on
that because I think its critical
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Remember these are -shy
CHIEF JUSTICE ROBERTS If you dont
mind Im afraid Im about five minutes behind
you here but going -- going back to your point
on 288f you said its there theyre decoupling
the international organizations and the foreign
sovereigns But as I go back and read it
its simply because the -- the foreign
sovereigns have the capability to use
reciprocity and the foreign -- and the
multi-country organizations do not
I dont -- I mean thats the
difference theyre drawing there not something
between the scope of the actual immunities
MR VERRILLI Well I -- well the
way I read it Mr Chief Justice is what -shy
what theyre doing there is saying even in a
situation in which the United States concludes
that it wont afford a foreign sovereign the
full virtually absolute immunity because of
reciprocity in other words were not getting
it back from them even in that situation an
international organization of -- where those
sovereigns are members will still receive the
full level of immunity
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And so I think what that tells us is
that what Congress was trying to do in this
statute overall was prescribe a fixed
substantive standard not a floating standard
where the two things move in tandem So -- and
I -- I do think it supports that
And if I could just go back to the
functional point remember these are
collective bodies and members come together
they make -- they -- they take resources from
each of their own countries They put them
into these organizations They make collective
decisions about how to deploy those resources
And the point of the immunity here is
so that the courts of any country but
especially the host country which for the most
important organizations are going to be here in
the United States cant override the
collective judgments that they make about how
their resources would be deployed and what
conditions they ought to impose et cetera by
the intervention of domestic law in US courts
and cant redirect the funds that are put into
these organizations to pay massive class action
tort judgments because of course the member
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countries are contributing this money because
they believe its going to be put to the use
that the -- for example the development bank
the development bank decides it should be put
to not to pay massive tort judgments
And I think one place you see this
very clearly if you look at the report of the
San Francisco conference about the founding of
the UN the State Departments -shy
Departments response coming -- report coming
out of that conference specifically says this
It says of course the United Nations cant be
subject to the jurisdiction of any one state or
its courts
And its for exactly this reason And
the same thing is true generally Thats why
you give it not for functional reasons -- I
mean excuse me not for reasons of status but
for functional reasons
And I think a key -- another key
reason why you shouldnt be thinking about this
as a standard that evolves evolves now and
over time is that those functional reasons
dont evolve now and over time
CHIEF JUSTICE ROBERTS Well what
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about the point that most of the concerns you
have are going to be dealt with by the
requirement of a nexus to activity in the
United States as opposed to simply abroad
where the projects are funded
MR VERRILLI Yes I was gratified
to hear the United States say that but -- and
-- but I could just -- Ill answer Your Honors
question directly but I want to broaden it out
a little bit because I think what essentially
the United States is saying here is look the
statute leaves one with no choice but to apply
restrictive principles of immunity Youve got
to jump off that cliff but dont worry it
will be a soft landing because the FSIA will
take care of a lot of these problems
And I guess what I would say about
that is in the unlikely event you dont agree
with me I -shy
(Laughter)
MR VERRILLI -- I hope theyre
right But theres no guarantee that theyre
right
JUSTICE BREYER Are the -- are the
lending decisions which may be fairly detailed
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and may include dozens of conditions made
within the United States
MR VERRILLI Well yes I think
thats a big part of the problem and -shy
JUSTICE BREYER Is there -- are there
lawsuits that could say that there was
negligence in determining in a different
country who the persons were or the conditions
under which the money would be spent Is that
an American lawsuit saying what youve done
here is commit the act of negligence or failure
to be a fiduciary here
MR VERRILLI Thats this lawsuit
Thats this lawsuit Justice Breyer Thats
exactly what theyre alleging
CHIEF JUSTICE ROBERTS Well but I
mean is that consistent with our opinion in
the OBB case which I think -- if the complaint
is based the gravamen of the complaint not
specific steps along the way and that was the
issue we dealt with in that case
And I appreciate the fact that its
you know to some extent dependent on the facts
and particular allegations but it would seem
to me to require a lot more than simply the
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specific decisions I think where -- wheres
the gravamen or gravamen however you say it
with whats going on here
MR VERRILLI Well we would
certainly say its India of course
CHIEF JUSTICE ROBERTS Yeah
MR VERRILLI And if -- if we have to
defend ourselves on that basis we will But I
-- but I -- I think it -- it understates the
real concrete risk here And what Id like to
do to illustrate that if I could is first
talk about the organizations that are going to
be exposed in a way that they wouldnt be under
the law
And as Justice Breyer indicated
earlier its important to remember this has
been the law in the DC Circuit for decades
and theres -- and people have ordered their
affairs based on the assumption that there was
virtually absolute immunity
But with respect -- but with respect
to the consequences and the groups affected and
then the types of effects With respect to the
groups affected youve got entities like us
the multilateral development banks And
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Justice Breyers identified many of them
Now the -- the main ones are here
here in Washington DC and theyre making
their decisions here and I think critically
too there are billions of dollars of assets
here
Now were going to make the OBB
argument for sure and I hope we win if we have
to make the argument I hope we win But who
knows how courts are going to come out on that
issue
Were going to have a lot of fighting
about that There are probably going to be
matters of degree Theres certainly going to
be significant disincentives arising out of
that uncertainty
Theres a whole another group of
entities that unlike the banks at least have
articles of agreement where we can try and fall
back on those for alternative arguments of
immunity where their immunity depends entirely
on the statutory grant the International
Committee of the Red Cross the World Health
Organization the fund to fight -- the global
fund to fight AIDS and tuberculosis and
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malaria
They are all entirely dependent on the
IOIA for their immunities and those immunities
are drastically different after this And then
we do have the issue I think with some
organizations that we may even actually now be
out of our -- out of compliance with our treaty
commitments
Now whats going to happen Heres
what I think is going to happen and I think
this lawsuit helps you see it
Now the way -- the basis of this
lawsuit is the following IFC when it loans
money here its loaning money in -- in parts
of the world where private capital wont go
unless we go in there
And very often they have un-developed
legal systems and they certainly dont have
robust environmental protections or labor
protections So what the IFC has done is lien
into those put those kinds of environmental
standards and labor standards into its
agreements saying you want this money to do
this development project these are the
standards that youve got to live up to
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And -- and this lawsuit is that -shy
that the entity that we loan this money to
didnt live up to the standards and its our
fault And so were being sued here
Well its going to create -- if that
kind of a suit can go forward and hopefully it
wont be able to Mr Chief Justice but if it
can its certainly going to create an
extraordinary disincentive for organizations
like ours to lien into those kinds of standards
because were going to be hoist by our own
petard
Now weve also got a robust internal
accountability mechanism where if people think
something has gone wrong on one of our
projects they can come to us and they can say
-- they can say look theres a problem here
And they -- and we investigate We take
internal remedial measures if we find theres a
problem
Well you know the factual basis for
the lawsuit is the report of our internal
accountability process
So if they can just grab that and take
it into court and make it the basis for a class
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action tort lawsuit in which they can make a
claim for all this money its going to create
a powerful disincentive for us not to engage in
that kind of self-policing activity
And I would submit that you know
even if things ultimately work themselves out
under the FSIA and I hope they -- I hope we
dont have to deal with that but even if we
do its going to take a very long time There
are going to be a lot of difficult cases at the
margin There are going to be very serious
disincentives immediately
And conversely you know were a big
fat target here These organizations have lots
of money And of course foreign plaintiffs
want to sue here They can bring a class
action They get liberal discovery They can
get punitive damages They get all of these
advantages by suing here
So instead of suing the person that
actually injured them the power plant in
India they come here and sue us
And I really think what you are going
to see here is that this is just going to
become another version of the sorts of
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foreign-cubed lawsuits that the Court has been
concerned about under the Alien Tort Statute
where the international organization is just
going to be subbed in for the foreign defendant
and its going to be subbed in in a situation
where were going to have a very significant
pile of money
And if I could just close with this
thought -- Im just going to pick up on Justice
Breyers thought -- the law in the District of
Columbia where virtually all these
organizations have been housed are
headquartered has been virtually absent
immunity under DC circuit law for decades
Thats the standard everybody has been
operating on
Nobodys suggested that anything has
gone wrong under this statute that there are
any deleterious policy consequences that the
interests of the United States are adversely
affected in any way In fact if you look at
the amicus brief from the former Secretaries of
Treasury and State they think that the policy
of the government arguing now is going to
disrupt the United States ability to function
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effectively with these organizations
It has all been fine And -- but
theyre asking you essentially to repeat a
metaphor to jump off a cliff And hopefully
it will be a soft landing But we dont know
that And it could easily result in a lot of
disruption to the good work that these
organizations do
And I guess what I would suggest is
that if thats going to happen it ought to
happen through legislation Congress can look
at this Congress can change the law if it
wants to But this has been the law for a very
long time There is no evidence that it has
done anything other than work well
And therefore I think the Court
should affirm the DC Circuit Thank you
CHIEF JUSTICE ROBERTS Thank you
counsel
Four minutes Mr Fisher
REBUTTAL ARGUMENT OF JEFFREY L FISHER
ON BEHALF OF THE PETITIONERS
MR FISHER Thank you Id like to
make four points and Id like to start with the
text of the statute itself and simply say when
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Mr Verrilli talks about the Neder Doctrine and
the Common Law Doctrine that you look at the
term a terms meaning at the time of
enactment Hes mixing apples and oranges
And I think all the citations in our
reply brief should make it absolutely clear
that theres a doctrine on the one hand that
talks about incorporating a body of law and
theres a doctrine on the other hand about
giving meaning to a specific term Were in
the former camp here
And as to the point about whether the
common law was evolving at the time two
things Well stand on the papers as to the
fact that it was somewhat in flux
But the more important point is even
if it werent in flux it wouldnt matter one
wit because the other side is making a
sweeping proposition which is any general
reference to common law is fixed in time
That would disrupt any number of
federal statutory regimes from the Federal
Tort Claims Act enacted the year after this
statute the Equal Access to Justice Act the
federal governments piracy statute Federal
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Rule of Evidence 501 I could go on and on
with federal statutory regimes that reference
the common law in exactly the same way the
statute does here
The Civil Rights Act of 1866 if you
want one more All of those would come out the
other way from this Courts jurisprudence and
from all the understanding if the other side is
right about statutory interpretation
So I think the only thing the other
side has is they have a bunch of policy points
to make for this Court
Now we dont think they should
control but let me answer them So first as
to our treaty obligations So one about at the
moment of enactment My friend kept saying
that there were various agreements in place
that required virtually absolute immunity
None of the agreements use those
words Instead what those agreements said is
that certain organizations were entitled to
immunity to allow them to perform their
necessary functions Thats a very different
thing than absolute immunity
And its very different because none
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of the organizations involved were performing
Justice Sotomayor commercial activities that
were essential to their core functions not the
UN not any of the other organizations
So we werent in breach of any treaty
rights And if you have any doubt on that I
would urge you to look to the federal
governments position then and now Its not
just a brief filed in this Court
It is the position that four different
Presidential Administrations have taken The
Carter Administration right after the FSIA was
passed the George H W Bush Administration
the Clinton Administration and now the Trump
Administration have all consistently held that
the FSIA rules are incorporated into the FSIA
Next on the floodgates concern I
explained earlier and I hope you will think
about the fact that while the core activities
of the IFC might be commercial activity not
all of the IFCs activities are and certainly
not all the activities of international
organizations are
But let me add one more thing My
friend talked about big lawsuits of ruinous
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liability Well theres two very easy ways to
control that
One is to the extent any claims are
on contracts they can write their own
contracts and negotiate their own contracts
As the Solicitor General points out they can
even deal with third-party beneficiaries in
their contracts if they choose
Secondly as to tort claims they can
and in fact commonly do indemnify themselves
against tort lawsuits In this very case
their agreement indemnifies them against any
judgment and all legal fees
So these organizations have every
manner of method to deal with any potential
liability And in fact they are which sort
of belies the suggestion that they think
theyre absolutely immune from lawsuit
Finally let me say one thing about
the so-called foreign cubed problem or the
facts of this case Now obviously we think
that we would satisfy the gravamen test They
have never made that argument And if they
want to make it we can -- we can have that
conversation in the lower courts
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But bear in mind what youre being
asked to do in this case is to announce a
categorical rule for all cases dealing with
international organizations
So my friend in the Solicitor
Generals Office talked about just regular tort
slip and fall cases and the like in the United
States Let me give you one other thing to
think about
Some international organizations
actually do their work in the United States
The border cooperation -- the Border
Environmental Cooperation Commission does
wastewater treatment plants in Texas and
California
I cant think of any reason why they
would be immune from those infrastructure
projects in a way that no private business or
public government would be
CHIEF JUSTICE ROBERTS Thank you
counsel The case is submitted
(Whereupon at 1206 pm the case
was submitted)
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69Official - Subject to Review
1 392151723 4122 4223 433
452 462 4718 4817 5220 57
allegations [1] 5624
alleging [1] 5615 B
1108 [2] 115 32 20 651824 allow [3] 2321 246 6522 back [22] 44 61420 10513 11
1206 [1] 6822 Absolutely [3] 3113 646 6718 allowed [1] 2610 17 154422 172425 1911 226
1602 [1] 1412 Access [1] 6424 allows [3] 231220 242 4425 4524 4610 4720 5247
17-1011 [1] 34 accident [1] 2615 almost [2] 719 253 22 537 5820
1866 [1] 655 accompanying [1] 4111 already [4] 311521 323 4118 backwards [4] 514 23161724
1904 [2] 614 1725 accomplish [1] 4913 alternative [1] 5820 bad [1] 1416
1934 [1] 49 according [2] 1817 5110 Altmann [1] 1318 bank [13] 719 81822 98 2716
1945 [17] 1013 142025 151213 accountability [2] 601423 amended [1] 1615 283455 3022 324 5434
15 1617 331 3522 36710 374 accumulated [1] 3514 American [3] 112 3721 5610 banks [9] 88910 271415 2911
388 3911 4216 437 5117 across [1] 1025 amicus [4] 122 27 2011 6222 3021 5725 5818
1946 [1] 3914 Act [15] 320 6319 1412 1724 20 amounts [1] 2411 bare [1] 1524
1952 [4] 3618 3921 4012 415 422 212 301518 347 5611 64 anachronistic [3] 425 4415 47 bark [2] 405 4315
1970 [6] 3919 4013 415101520 2324 655 24 barred [2] 2689
1990s [1] 1221 action [3] 5324 61117 announce [1] 682 based [5] 2518 354 386 5619
1994 [1] 115 activities [11] 8517 195 2717 another [13] 323 144 167 1923 5719
2 2910 3122 4017 662192122 2122 378 3823 501625 5420 basic [1] 3413
20 [2] 28 2622
20-some [1] 2624
2018 [1] 111
21 [1] 3421
27 [1] 3717
288 [4] 2213 331 4616 4825
288a [3] 1915 2018 4823
288a(b [4] 2024 2111 2215 49
13
288a(d [1] 2110
288b [1] 343
288d [1] 1916
288d(a [1] 2110
288f [2] 4725 525
activity [23] 791820 81015 94
69 2551718 27182325 2914
17 3010 31211 322 553 614
6620
actors [1] 2912
acts [1] 216
actual [2] 457 5214
actually [4] 4111 596 6121 68
11
ad [1] 4612
add [3] 1424 2510 6624
addition [2] 2515 504
address [4] 417 78 2423 403
adjust [2] 1212 1720
Administration [4] 66121314
5817 6125
answer [11] 71122 10191920
1817 2514 451414 558 6514
answered [1] 436
antiquated [1] 1816
anybody [3] 3825 4014 4312
anybodys [1] 4323
anyway [1] 5011
APPEARANCES [1] 117
appendix [1] 481
apples [1] 644
applied [1] 710
applies [5] 612 2216 341415 50
6
apply [7] 1010 161 1919 2215
basically [2] 1822 5011
basis [6] 4625 471 578 5912 60
2125
bear [1] 681
became [1] 3922
become [1] 6125
becomes [1] 1815
behalf [8] 11925 241114 38 33
8 6322
behind [1] 523
belies [1] 6717
believe [1] 542
beneficiaries [1] 677
best [2] 396 423
better [1] 2019
3 15 2521 507 5512 between [2] 513 5214
3 [1] 24 Administrations [1] 1825 appreciate [1] 5622 beyond [2] 3712 3822
30 [1] 2622 Administrations [1] 6611 appropriate [1] 5111 big [5] 2223 3022 564 6113 66
31 [2] 111 4113 adopt [1] 4318 archives [1] 213 25
33 [1] 211 adopting [1] 47 area [2] 171618 billions [1] 585
4 adoption [1] 1610
advance [1] 3612
arent [1] 5112
argued [1] 92
bit [2] 363 5510
blue [1] 481
45 [1] 4421 advantages [1] 6119 arguing [1] 6224 bodies [1] 539
5 5 [1] 1612
501 [1] 651
527 [1] 3420
adversely [1] 6220
advice [1] 812
advising [1] 3525
advocated [1] 309
affairs [1] 5719
argument [24] 114 225912 34
7 5111 625 1410 1914 2010
2213 2314 337 3521 3710 46
9 4822 5889 6321 6723
arguments [2] 416 5820
body [4] 32325 425 648
border [2] 681212
both [1] 2211
bounds [1] 1714
branch [11] 1024 1481318 151
6 affected [3] 572224 6221 arising [1] 5815 161924 398 4015 5012
63 [1] 214 affirm [1] 6317 Armed [1] 63 breach [1] 665
6a [1] 481 afford [2] 296 5219 articles [1] 5819 break [1] 493
8 afraid [2] 1625 523
Africa [1] 3023
Asia [1] 3023
Asian [1] 284
Bretten [2] 4325 441
BREYER [40] 43 513162022 6
80-some [1] 2623 African [1] 285 assets [1] 585 16 717 817 912 108 1117 12
A agencies [1] 3819
agree [3] 2018 253 5518
Assistant [1] 120
Association [1] 286
22 133 147 157 238111923
24259151821 2712 282914 am [2] 115 32
agreed [1] 294 assume [3] 1221 1711 222 301619 3147 4420 4515 467 ability [4] 12121315 6225
agreement [4] 282325 5819 67 assuming [1] 277 5524 56514 5715 able [7] 1023 2423 2513 264 32
12 assumption [2] 1223 5719 Breyers [4] 164 504 581 6210 20 458 607
agreements [5] 2821 5923 65 assurance [1] 318 brief [16] 618 115 364 377918 above-entitled [1] 113
171920 assure [3] 30619 4218 41121314 482 497 511820 abroad [1] 554
agricultural [1] 84 attenuated [1] 2523 6222 646 669 absent [1] 6213
AIDS [1] 5825 authority [7] 212425 2241114 briefs [1] 4522 absolute [33] 1922 201 22310
AL [1] 13 4619 475 bring [1] 6116 20 2610 282025 3215 331215
Alan [1] 1624 available [3] 11810 412 broaden [1] 559 21 34117 3524 361622 383
Alien [1] 622 BUDHA [1] 13
Heritage Reporting Corporation Sheet 1 1108 - BUDHA
70Official - Subject to Review
building [1] 2613
bunch [1] 6511
Bush [1] 6613
business [2] 1414 6818
businesses [1] 4422
bygone [2] 181819
C California [2] 118 6815
call [1] 412
came [5] 113 1125 1223 3779
camp [1] 6411
canon [5] 159 165 1911 5055
capability [1] 529
capital [1] 5915
captures [1] 2718
Carcieri [1] 67
care [1] 5516
Career [1] 63
carnage [1] 445
carry [1] 5122
Carter [1] 6612
Case [35] 34 4189 548 6236
88161718 9162025 14116
191 2117 2511 34182122 36
2 404 4724 561821 671121
6822122
case-by-case [2] 4612 471
cases [13] 413 61 92 158 1824
269 3415 4424 452020 6110
6837
categorical [2] 4625 683
categories [1] 494
category [2] 878
certain [2] 304 6521
Certainly [7] 1313 402 575 58
14 5918 608 6621
cetera [4] 48699 5321
change [4] 305 348 4310 6312
changes [1] 46
characterization [2] 367 4512
charter [6] 2816 311920 3910
1125
Chase [1] 618
CHIEF [15] 339 20713 3349 34
24 52216 5425 5616 576 607
6318 6820
choice [2] 174 5512
choose [1] 678
Circuit [4] 1814 5717 6214 63
17
circumstances [1] 3224
citations [1] 645
cite [2] 6218
cited [2] 525 5120
citizens [1] 3216
Civil [1] 655
claim [2] 311 612
Claims [3] 6423 6739
class [3] 5324 6025 6116
classic [1] 404
clear [17] 316 1119 1515 2424
2521 2716 4021 4121 4614 50
325 511414161719 646
clearly [2] 4714 547
cliff [2] 5514 634
Clinton [1] 6614
close [3] 425 712 628
closely [1] 910
collection [1] 218
collective [3] 5391219
Columbia [1] 6211
come [11] 1115 1521 322 421
19 4417 539 5810 6016 6122
656
comes [2] 548
comfort [1] 1121
coming [6] 97 3511 4324 5013
541010
commentators [1] 5118
commercial [26] 420 791720 8
1015 9469 2551618 27317
182325 291417 3010 312 32
2 401622 66220
Commission [1] 6813
commit [3] 3323 3816 5611
commitment [1] 3924
commitments [6] 3824 422122
4312 598
committed [4] 332125 3814 39
11
Committee [1] 5823
common [17] 621 74 1419 185
67 3314 3515 439 462 479 49
10 508 6421320 653
commonly [1] 6710
comparator [1] 715
compare [2] 1915 4823
competent [1] 622
complaint [2] 561819
completely [4] 424 4415 47824
compliance [2] 409 597
comply [1] 4124
components [1] 822
concede [1] 2112
concept [1] 4416
concern [4] 1325 414 4320 66
17
concerned [1] 622
concerns [2] 268 551
concludes [1] 5218
conclusion [1] 155
concrete [1] 5710
conditioned [1] 4810
conditions [3] 5321 5618
conduct [2] 261 3217
conference [2] 54811
conferred [2] 4122 5017
conferring [1] 499
Congress [36] 1023 1125 1224
25 1317 1415 174710111217
21 18210 1924 222 231 3225
3319 34616 351417 416 42
20 439 446 4620 471013 512
532 631112
Congresss [1] 1215
connected [1] 2516
connection [1] 2523
consciously [1] 4915
consequences [3] 5021 5722
6219
consideration [1] 374
consistent [3] 46 1011 5617
consistently [1] 6615
construction [3] 3414 351313
contemplated [1] 195
context [1] 3317
Contoe [1] 1624
contract [1] 2612
contractor [1] 2613
contracts [4] 674558
contributing [1] 541
control [4] 1523 162 6514 672
convention [8] 38181920 3913
19 40713 417
conversation [1] 6725
conversely [1] 6113
conviction [1] 65
cooperation [2] 681213
core [4] 2910 3122 66319
CORPORATION [2] 16 35
correct [3] 136 1924 4725
correctly [2] 510 1822
couldnt [2] 2225 2923
counsel [4] 208 335 6319 6821
count [1] 2916
countries [3] 3623 5311 541
country [4] 399 531516 568
counts [1] 2914
couple [4] 241419 3114 4214
coupled [1] 315
course [9] 621 3422 352 3823
4123 5325 5412 575 6115
COURT [31] 1114 310 6824 15
1718 1824 2014 2721 3213 33
310 34131925 351715 361
131416 371 452324 6025 62
1 6316 6512 669
Courts [6] 523 1518 2520 4519
20 657
courts [9] 1423 2722 309 3218
531522 5414 5810 6725
create [4] 1121 6058 612
creates [1] 4617
Criminal [1] 63
critical [2] 5024 5125
critically [1] 584
Cross [1] 5823
crystal-clear [1] 2824
cubed [1] 6720
curiae [3] 122 28 2012
D DC [7] 1102124 2616 5717 58
3 6317
damages [1] 6118
date [1] 1723
dates [1] 613
day [1] 1817
DC [1] 6214
deal [10] 188 2021 2223 2425
3022 4025 4821 618 67715
dealing [1] 683
deals [1] 2123
dealt [3] 2819 552 5621
debates [1] 4314
decades [2] 5717 6214
decide [6] 527 913141923
decides [2] 1516 544
decision [3] 2520 342021
decisions [4] 5313 5525 571 58
4
decouples [1] 4813
decoupling [1] 525
decrease [1] 136
default [2] 126 1720
defend [1] 578
defendant [1] 624
degree [1] 5814
deleterious [1] 6219
denying [1] 315
Department [15] 121 56 917 18
25 198 2823 3525 36101214
402 4546 4611 472
Departments [2] 54910
dependent [2] 5623 592
depends [1] 5821
deploy [1] 5313
deployed [1] 5320
describe [1] 3615
described [1] 1510
describes [2] 3912 465
describing [1] 2218
designated [1] 2623
desperate [1] 443
detail [2] 501414
detailed [1] 5525
determination [2] 1415 4612
determining [1] 567
development [13] 271415 2845
56 2911 302124 5434 5725
5924
dichotomy [1] 1916
dictates [1] 3517
difference [1] 5213
differences [1] 493
different [20] 7323 97 171321
181 2111 3818 4020 4416 46
17 47811 517 567 594 6523
25 6610
difficult [1] 6110
diplomatic [2] 2222 418
diplomats [4] 4138 491018
direction [2] 3956
directly [2] 3122 559
discarded [1] 204
discovery [1] 6117
discussed [1] 5118
discusses [1] 114
discussing [1] 1917
discussion [1] 2017
disincentive [2] 609 613
disincentives [2] 5815 6112
dispute [3] 322 42 82
disputes [2] 261212
disrupt [2] 6225 6421
Heritage Reporting Corporation Sheet 2 building - disrupt
71Official - Subject to Review
disruption [1] 637
District [1] 6210
doctrine [8] 18581819 64127
9
dog [2] 405 4315
doing [5] 194 267 3625 4017 52
17
dollars [1] 585
domestic [3] 2612 3217 5322
DONALD [3] 124 210 337
done [3] 5610 5920 6315
doubt [2] 1913 666
doubts [2] 2511 264
down [5] 1722 182 1925 493 50
22
dozens [1] 561
draft [1] 203
drafting [2] 316 2119
drastically [1] 594
draw [2] 5113
drawing [1] 5213
driving [1] 2615
E each [3] 372324 5311
earlier [2] 5716 6618
easily [1] 636
easy [1] 671
effect [3] 61 364 382
effectively [2] 5123 631
effects [1] 5723
either [2] 94 156
elaborate [1] 5124
element [1] 355
eliminate [2] 259 476
ELLIS [31] 120 26 2091013 21
21 2212 23921 2447141719
23 2621 27481013 2881115
294820 3018 313613 328
employees [3] 214 2221 486
enact [1] 304
enacted [11] 1616 3225 3319 38
89 412325 42817 4621 6423
enacting [1] 4225
enactment [6] 75 17910 4410
644 6516
encourage [1] 3024
end [4] 425 358 421618
ended [1] 383
enforcement [1] 83
engage [3] 197 2724 613
enjoy [1] 58
enjoyed [2] 313 1210
enough [2] 2523 2921
ensue [1] 5021
ensured [1] 4220
enter [4] 3011212 329
entered [1] 2820
entire [1] 2021
entirely [3] 4617 5821 592
entities [3] 4423 5724 5818
entitled [3] 319 1922 6521
entity [1] 602
environmental [3] 591921 6813
Equal [1] 6424
equivalence [3] 4219 5113
equivalent [1] 424
era [2] 181819
especially [5] 324 1021 18419
5316
ESQ [6] 11824 2361013
essential [1] 663
essentially [3] 2124 5510 633
established [2] 351821
ET [5] 13 48699 5321
Even [30] 63 8816 107 1110 12
1620 1424 1816 19345 256
10 265 2714141415 361218
427 4815 521722 596 6168
6416 677
event [1] 5518
everybody [2] 4121 6215
everybodys [1] 277
everything [4] 96 1013 2534
evidence [3] 393 6314 651
evolve [4] 1620 431921 5424
evolves [2] 542222
evolving [2] 3313 6413
Ex [1] 1514
exact [2] 625 1916
exactly [8] 124 1714 237 3224
4211 5415 5615 653
example [6] 719 81 198 2412
3725 543
examples [2] 1025 3720
exception [5] 79 256 271925
349
excuse [1] 5418
executive [16] 1024 1481318
151161924 3410 398 4014
416 462025 475 5012
exemptions [2] 4848
exist [1] 194
existence [2] 4715 4810
expect [2] 4025
explained [3] 2722 497 6618
exposed [1] 5713
extent [3] 394 5623 673
extraordinary [1] 609
F face [2] 461423
fact [12] 2512 3123 393 464 47
13 487 5622 6221 6415 6619
671016
facts [3] 4418 5623 6721
factual [1] 6021
failed [1] 391
failure [1] 5611
fair [3] 366 373 4511
fairly [1] 5525
fall [4] 1911 2614 5819 687
far [4] 201719 437 458
fat [1] 6114
fault [1] 604
favor [2] 76 3112
federal [8] 1210 1823 642222
2525 652 667
fees [1] 6713
few [1] 723
fiduciary [1] 5612
fight [2] 582425
fighting [1] 5812
filed [3] 4114 473 669
Finally [1] 6719
FINANCE [2] 16 35
financial [2] 814 329
find [7] 2923 401415 4316 458
481 6019
fine [1] 632
fingerprint [1] 5012
first [10] 7123 102 1412 1610
1724 2324 351 5711 6514
FISHER [23] 118 2313 3679 5
12151721 10418 1381013 16
31321 173 4425 63202123
fisheries [1] 81
fit [2] 106 1520
five [3] 818 389 523
fixed [8] 212 2219 331216 495
6 533 6420
floating [1] 534
floodgate [1] 279
floodgates [3] 267 3116 6617
flux [6] 189 3523 361520 6415
17
focus [1] 3213
following [1] 5913
foolish [1] 1816
foreign [39] 3131819 7141518
812 97 1216 19720 219 234
9 2512 3219 3324 391622 42
2910 4320 489111425 4919
51319 52681019 6115 624
6720
foreign-cubed [1] 621
forever [1] 44
forgive [1] 1623
form [5] 1172123 1434
former [2] 6222 6411
forth [1] 4421
forward [8] 131424 142 2513
265 32314 606
foundation [1] 5116
founding [2] 620 548
Four [3] 632024 6610
Francisco [2] 5115 548
fraud [3] 342323 356
friend [6] 2016 2120 254 6516
6625 685
friends [7] 344 3920 4414 4510
468 4723 5022
front [2] 426 444
frozen [1] 2117
FSIA [10] 1411 15423 2718 297
5515 617 66121616
fulfill [3] 3320 422125
full [5] 354 4816 4918 522025
fully [1] 1023
function [1] 6225
functional [5] 519 538 541719
23
functions [3] 5123 6523 663
fund [2] 582425
funded [1] 555
funds [2] 196 5323
further [1] 332
future [1] 102
G gave [5] 517 124 349 382 4514
General [7] 120 322 113 1716
1811 6419 676
Generals [1] 686
generally [1] 5416
George [1] 6613
gets [1] 4820
getting [3] 923 148 5221
GINSBURG [5] 326 3520 4513
17 4821
Ginsburgs [1] 436
give [24] 56 61722 824 1018 11
21 1221115 131 15171920
3016 31814 3719 448 45415
4916 518 5417 688
given [10] 41 15122 175 1914
2211 3115 349 361
gives [4] 31117 812 1116
giving [1] 6410
Glad [1] 2423
global [1] 5824
gloss [1] 4413
goal [1] 1411
Gorsuch [6] 410 163142225
1813
got [9] 510 2317 289 467 4918
5513 5724 5925 6013
gotten [1] 3715
government [7] 127 318 3811
48911 6224 6819
governments [4] 92 4522 6425
668
governmental [1] 123
governments [11] 31319 812 9
1 12110 219 23410 2720 32
20
governs [1] 3511
grab [1] 6024
granddaddy [1] 4010
grant [8] 2023 2225 2313 246
4621 4816 5121 5822
granted [4] 4624 4878 516
granting [1] 4117
grants [2] 824 302
gratified [1] 556
gravamen [7] 25222425 5619
5722 6722
great [3] 188 2425 4025
gross [1] 4625
group [2] 710 5817
groups [2] 572224
guarantee [1] 5522
guess [6] 922 299 4213 4423
5517 639
H
Heritage Reporting Corporation Sheet 3 disruption - guess
72Official - Subject to Review
half [1] 2810 importing [1] 1419 11 595 56101314 591113 60122 61
hand [3] 4823 6479 impose [1] 5321 itself [7] 716 811 116 2416 372 1 6718
happen [4] 59910 631011 incentives [1] 142 4218 6325 lawsuits [5] 319 566 621 6625
hasten [1] 1424 include [1] 561 J 6711
headquarter [1] 1022 Including [1] 2711 lay [1] 1925
headquartered [4] 1022 2619 inconceivable [2] 43812 JAM [2] 13 34 lead [4] 153410 319
25 6213 incorporate [1] 3518 JEFFREY [5] 118 2313 37 63 least [4] 186 2410 497 5818
headquarters [2] 2615 292 incorporated [6] 325 72 169 33 21 leave [1] 420
Health [1] 5823 14 3423 6616 JONATHAN [3] 120 26 2010 leaves [1] 5512
hear [2] 33 557 incorporates [2] 5067 JR [2] 124 210 led [1] 449
heard [2] 4425 4822 incorporating [2] 509 648 judge [1] 1319 left [1] 2016
heart [2] 501516 incorporation [1] 4912 judgment [2] 4711 6713 legal [2] 5918 6713
heightened [1] 144 increase [1] 226 judgments [3] 531925 545 legislation [3] 813 175 6311
held [2] 309 6615 indeed [4] 427 187 203 Judiciary [2] 619 1724 legislative [1] 1119
helps [1] 5911 indemnifies [1] 6712 July [1] 388 lend [2] 423 2412
hewing [1] 3621 indemnify [1] 6710 jump [2] 5514 634 lending [8] 889101623 2719
historical [4] 393 441318 4512 India [4] 2623 575 6122 juridical [1] 5113 2910 5525
history [4] 316 1119 2119 2818 Indian [2] 47 68 jurisdiction [1] 5413 lends [1] 302
hoc [1] 4612 indicate [1] 3123 jurisprudence [2] 523 657 lens [1] 712
Hoffman [1] 1514 indicated [1] 5715 Justice [96] 121 339 4310 513 less [1] 229
hoist [1] 6011 indicators [1] 4720 162022 616 717 817 912 108 Letter [6] 361919 3921 403 437
hold [1] 3723 individualized [1] 1417 1117 121822 133591112 14 465
Honor [4] 2420 365 4024 494 individuals [3] 419 491017 67 156 1634142225 1812 20 level [3] 3719 387 5225
Honors [1] 558 infer [2] 351616 713 2121 238111923 24259 liability [2] 67116
hope [6] 5521 5889 6177 6618 infrastructure [1] 6817 151821 2617 272691111 28 liberal [1] 6117
hopefully [2] 606 634 initial [1] 4022 2914 2938 301619 3147 32 lien [2] 5920 6010
hornbook [1] 1010 injured [1] 6121 6 33410 34524 3520 3612 40 light [1] 3317
hornbooks [1] 43 injuries [1] 262 1619 42715 4356 4420 4513 limited [1] 1224
host [3] 2025 217 5316 inquiry [1] 358 1517 467 4721 4821 504 522 list [1] 3020
housed [1] 6212 insertion [1] 69 16 5425 5524 5651416 576 little [2] 102 5510
however [1] 572 instance [1] 2220 15 581 607 629 6318 6424 66 live [2] 5925 603
I instead [2] 6120 6520
institutions [2] 81823
2 6820
K loan [3] 820 2924 602
loaning [1] 5914 idea [4] 14816 1618 2618
identified [1] 581
IFC [10] 710 8111919 256 283
323 591320 6620
IFCs [2] 3120 6621
II [1] 446
illustrate [1] 5711
IMF [6] 283 302 37202525 388
immediately [2] 407 6112
immune [4] 215 252 6718 6817
immunities [19] 2025 2216 234
instructions [1] 5011
intended [2] 347 513
Inter-American [1] 284
interest [1] 1114
interests [1] 6220
interfere [1] 3110
internal [3] 60131922
INTERNATIONAL [37] 16 3511
17 422 72224 824 1025 1421
1921 2221 232 251 286 3222
3323 4010 421 4621 477 485
KAGAN [6] 2121 2938 42715
435
keeps [1] 4824
kept [1] 6516
key [2] 542020
kind [5] 825 453 5124 606 614
kinds [5] 716 2618 3820 5921
6010
knowing [1] 101
knows [2] 198 5810
loans [5] 2912131822 5913
lobby [1] 1023
locate [1] 1014
lock [1] 175
long [5] 45 1011 1322 619 63
14
look [32] 61315 724 911 108 13
18 168121416 1713 2021 21
19 2311 2817 311920 351 37
10 4111 4412 45119 4623 50
10 547 5511 6017 6221 6311 3815172121 391213 4118 131924 5018 51481221 526 L 642 667 4622 4848 49916 5214 5933 23 5822 623 6622 68410 labor [2] 591922 looked [4] 44 158 3020 4524
immunity [119] 312171820 419 Interpol [1] 83 landing [2] 5515 635 looking [2] 3523 212425 559 9152125 1024 interpret [1] 1017 language [8] 1017 1518 202 21 looks [3] 3618 3812 4313 11672123 1229911161925 interpretation [2] 3415 659 13 343 359 421215 lot [10] 2017 221 2814 319 446 13120 145141721 15219 16 interpreted [1] 343 last [1] 49 5516 5625 5812 6110 636 1 191922 20124 213925 223 interpreting [2] 619 359 late [1] 4120 lots [2] 420 6114 991922 2337131415 2436 intervention [1] 5322 later [3] 4916 3810 lower [3] 2722 309 6725 101125 259 26510 28152025
297 3025 3121 3251521 33 investigate [1] 6018
inviolable [1] 213
latter [1] 1717
Laughter [4] 172 2318 241 55 M
121522 3411117 3523 36110 involved [2] 149 661 20 made [10] 53 1223 1415 18910
15172224 37121319 3847 39 IOIA [21] 31115 11816 2023 22 law [46] 32425 61121 714 82 3924 469 4710 561 6723
215161722 411822 4223 434 17 2624 331120 3718 3869 1056 131516 1419 151212 mail [1] 3422
920 448 4525 463 47618 48 22 391 411921 4314 4410 46 15 1620 17151618 18567 21 main [1] 582
17 5017 516921 522025 53 18 498 593 14 3314 3515 3619 383 439 malaria [1] 591
14 5513 5720 582121 6214 65 ISMAIL [1] 13 20 4524 462 479 4911 508 53 managing [1] 81
182224 isnt [6] 1618 2513 31910 3711 22 571417 621014 631213 64 manner [1] 6715
important [5] 1324 502 5317 57 4419 281320 653 many [9] 413181818 725 1025
16 6416 isolation [1] 2020 laws [1] 306 2618 322 581
importantly [1] 257 issue [6] 1219 211116 5621 58 lawsuit [14] 1223 15225 4723 margin [1] 6111
Heritage Reporting Corporation Sheet 4 half - margin
73Official - Subject to Review
market [2] 820 2918
massive [2] 5324 545
match [1] 4418
materiality [2] 3423 355
materials [4] 372 426 4413 45
12
matter [7] 113 1716 466 5016
16 515 6417
matters [1] 5814
mean [14] 4111213 64 914 248
251 371 4211 451819 5212
5418 5617
meaning [7] 179 3315 351518
22 64310
means [4] 524 3517 421620
meant [3] 64 223 2910
measure [1] 126
measures [1] 6019
mechanism [2] 4617 6014
member [1] 5325
members [3] 486 5224 539
mentioned [2] 1813 417
mess [1] 453
metaphor [1] 634
metes [1] 1714
method [1] 6715
might [2] 718 6620
mind [2] 523 681
minimum [1] 1524
minute [2] 3722 5124
minutes [2] 523 6320
mission [1] 444
mistake [1] 53
Mister [1] 293
mixed [1] 923
mixing [1] 644
modern [1] 1817
moment [5] 4115 105 3921 65
16
monetary [1] 411
money [14] 41223 820 2413 30
7 541 569 59141423 602 612
15 627
months [1] 389
morning [2] 2017 3116
most [6] 232 257 3316 4722 53
16 551
move [3] 3611 515 535
moving [1] 3623
much [5] 141 2517 3112 395 40
21
multi-country [1] 5211
multilateral [1] 5725
multinational [1] 2911
must [4] 251718 351616
N Nader [2] 341921
narrow [1] 4915
narrower [1] 499
nations [4] 418 397 4011 5412
natural [1] 354
nature [2] 123 2924
necessary [4] 1720 3510 3912
6523
Neder [1] 641
need [7] 1116 306 3124 3268
3712 4318
needed [2] 291 3823
negligence [2] 56711
negotiate [4] 1214 143 2825 67
5
negotiated [3] 115 1220 3914
never [1] 6723
New [1] 2616
next [2] 34 6617
nexus [2] 2517 553
nobody [2] 59 925
Nobodys [1] 6217
non-commercial [1] 85
none [3] 4411 651925
normal [1] 3414
nothing [3] 101 2411 404
notwithstanding [1] 487
Number [6] 242424 2713 3115
4424 6421
numbers [1] 2621
O OAS [4] 113 1221 282224
OBB [3] 2520 5618 587
objective [1] 4914
obligations [5] 332022 409 41
24 6515
obvious [1] 4624
obviously [2] 4710 6721
occurred [2] 2622
occurs [1] 2519
October [1] 111
Office [1] 686
officers [2] 214 2220
official [1] 215
officials [2] 192021
often [1] 5917
Okay [5] 512 2323 24518 467
old [1] 187
once [2] 4315 4620
one [47] 41823 5118 6217 819
1317 14369 1622 173 1868
1113 191218 211116 2424 25
10 273 3013 3118 3618 3812
4014 4313 4722 4823 4925 50
67 54613 5512 6015 64717
65615 6624 67319 688
ones [1] 329
one-way [1] 225
ones [1] 582
only [8] 423 62 2116 225 2810
296 417 6510
open [1] 3117
opening [1] 267
operating [1] 6216
opinion [4] 69 1624 3424 5617
opponents [2] 321 61
opportunity [1] 143
opposed [1] 554
opposite [3] 417 1345
oral [7] 114 2259 37 2010 337
oranges [1] 644
order [6] 292 306 3823 4620 47
15
ordered [1] 5718
Ordinarily [1] 296
ordinary [2] 610 117
Organization [16] 1124 1421 19
321 372021 4020 4118 4622
477 4819 519 5223 5824 623
organizations [1] 2614
organizations [56] 31218 422 7
2225 824 101421 1111422
214 2221 232 2518 261923
281319 3120 3222 3323 3711
4010 4219 4427 4851424 49
17 5018 5141222 52611 53
121724 5712 596 609 6114
6212 6318 6521 661423 67
14 68410
original [2] 1118 203
originally [1] 1616
other [41] 421 6225 77 8621
23 95 13125 141019 1715 18
21 1924 2113 224 23312 24
16 2912 3212 3446 3622 39
20 441114 4511 469 4723 50
22 5221 6315 64918 657810
664 688
others [2] 1221 324
otherwise [2] 3517 408
ought [5] 813 161 3624 5321
6310
ourselves [1] 578
out [19] 6810 1413 2416 2813
4089 4325 449 5122 5411 55
9 581015 5977 616 656 676
over [7] 1620 3024 3525 4319
21 542324
overall [2] 4916 533
override [1] 5318
own [10] 615 12131317 1518
2815 5311 6011 6745
P pm [1] 6822
package [1] 411
PAGE [5] 22 3420 3717 4113
481
papers [1] 6414
part [5] 1219 1411 2122 4322
564
Parte [1] 1514
particular [6] 916 178 341820
362 5624
particularly [1] 2118
partly [1] 1120
parts [1] 5914
party [5] 2724 2923 3011113
passage [2] 416 4314
passed [5] 525 813 1316 452
6613
past [3] 41215 92
path [1] 5022
pathway [1] 156
pathways [3] 119 1721 181
pay [2] 5324 545
people [4] 369 5013 5718 6014
percentage [1] 2812
perfect [1] 183
perform [1] 6522
performing [1] 661
perhaps [1] 3110
permissible [2] 623 1321
person [3] 2320 4316 6120
persons [2] 5114 568
pertinent [1] 1618
Peru [1] 1514
petard [1] 6012
Petitioners [10] 141923 24814
38 201219 6322
phrase [1] 2020
pick [4] 164 2015 376 629
picks [1] 281
pile [1] 627
piracy [1] 6425
place [3] 4712 546 6517
plain [2] 314 1913
plaintiff [1] 311
plaintiffs [1] 6115
plant [1] 6121
plants [1] 6814
please [3] 310 2014 3310
point [17] 1718 281222 297 34
19 35111 377 4023 501924
524 53814 551 641216
points [8] 166 3115 3945 504
6324 6511 676
policies [1] 142
policy [9] 1079151516 1418
621923 6511
political [1] 1418
politically [1] 1423
position [5] 1525 1822 4610 66
810
possibly [2] 38510
potential [1] 6715
power [2] 249 6121
powerful [1] 613
practical [2] 101920
practice [1] 296
precisely [1] 3718
prescribe [2] 495 533
prescribed [1] 4716
prescribes [1] 3311
present [1] 324
presented [1] 2515
President [9] 55 1225 136 225
24 2313 243 3410 4619
Presidents [3] 1212 2214 475
presidential [4] 2123 22411 66
11
pressure [1] 446
presumptively [1] 252
presupposes [1] 4714
pretty [1] 3022
principal [1] 1113
principle [1] 614
principles [1] 5513
Heritage Reporting Corporation Sheet 5 market - principles
74Official - Subject to Review
prior [1] 65 10 394 441225 4722 512 61 397 4510 5111 57212123 seen [1] 1520
private [12] 81421 2724 2912 23 respectfully [3] 366 373 4510 self-policing [1] 614
182223 3011113 5915 6818 reams [1] 61 Respondent [4] 1725 211 338 Senate [6] 123 41111516 4224
privileges [4] 233 4622 4848 reason [17] 109 1891012 1910 Respondents [1] 269 5117
probably [3] 815 93 5813 23 2212 3222 3319 4615 511 Respondents [2] 2112 236 sense [5] 183 221 247 3317 38
problem [8] 911 137 1420 3711 8910 541521 6816 response [3] 918 4024 5410 6
564 601720 6720 reasons [7] 1621 173 517 5417 responses [1] 2419 sensitivity [1] 4025
problems [2] 149 5516 181923 responsive [1] 1115 separate [2] 818 5113
process [4] 46511 479 6023 rebuild [1] 444 rest [1] 206 serious [3] 2511 263 6111
procure [1] 144 REBUTTAL [3] 212 206 6321 Restatement [1] 5119 set [3] 218 441 499
profit [1] 820 receive [3] 2222 2310 5224 restrictions [1] 304 sets [1] 212
programs [1] 825 received [1] 234 restrictive [8] 117 265 297 36 setting [1] 176
project [1] 5924 receiving [1] 4818 1124 3713 3922 5513 settled [2] 3315 3515
projects [4] 821 555 6016 6818 reciprocal [1] 4818 result [1] 636 settles [1] 2021
promised [1] 448 reciprocity [3] 4811 521021 retroactive [2] 131821 several [1] 211
property [1] 3821 reconsider [1] 3625 retroactivity [1] 1319 shall [4] 4619 486 492225
proposition [2] 4318 6419 Red [1] 5823 retrofit [1] 4418 shouldnt [4] 91620 511 5421
protection [1] 2624 redirect [1] 5323 reverse [1] 333 show [1] 4723
protections [2] 591920 redress [1] 3218 Rights [2] 655 666 shows [1] 231
prove [1] 3825 reduce [2] 3410 476 risk [1] 5710 side [20] 62625 8619 95 131
provide [9] 232 2923 3321 37 refer [3] 415 1619 2114 ROBERTS [9] 33 207 334 522 25 1419 1924 3215 344 3920
19 387 39111 4222 433 reference [10] 159 165 1719 18 5425 5616 576 6318 6820 4414 4511 469 5022 6418 65
provided [2] 2216 3817 11 1911 219 5055 6420 652 robust [2] 5919 6013 811
provides [2] 2024 3822 referenced [2] 611 185 roll [1] 226 sides [3] 1410 1821 4724
providing [3] 3416 38316 referential [1] 2113 roll-back [1] 2124 signed [1] 3910
provision [16] 3141723 116 17 referred [1] 2120 ruinous [1] 6625 significant [3] 4924 5815 626
6 2123 222614 2311219 28 refers [3] 323 167 2312 rule [13] 322 1425 1511 1757 similar [1] 487
16 4225 483 501 regard [2] 2567 20 1925 212 2610 351213 65 similarly [1] 474
provisions [8] 1320 212814 34 regardless [1] 2514 1 683 simply [4] 528 554 5625 6325
7 49521 5010 regiment [1] 1222 rules [4] 1919 2219 3414 6616 single [1] 4316
public [2] 825 6819 regimes [2] 6422 652 Russians [1] 4421 sitting [1] 1813
punitive [1] 6118 regular [1] 686 S situation [10] 611 1323 161 18
purpose [9] 46 101112161619 regulating [1] 813 4 457 479 4815 521822 625
111820 3318 regulation [1] 725 safer [1] 102 situations [1] 498
put [10] 712 122 292 4415 4711 regulations [1] 305 Samantar [1] 4525 slip [2] 2613 687
531123 5424 5921 Rehnquist [1] 3425 same [22] 3121618 721 1299 so-called [1] 6720
putting [1] 4422 reintroduce [1] 1420 11 1559 1919 3324 3916 422 soft [2] 5515 635
Q rejected [1] 624
related [1] 377
10 433 451317 49182225 54
16 653 solely [1] 354
Solicitor [4] 120 113 676 685 quasi-sovereign [1] 3018 Relations [1] 5120 San [2] 5115 548 sometimes [6] 1113 166 1816 question [13] 71112 107 1122 relief [2] 41112 satisfy [1] 6722 194 4545 1425 164 1822 2421 2514 34 remain [1] 1311 save [1] 205 somewhat [1] 6415 13 4517 4721 559 remains [1] 137 saying [11] 98 292024 3811 40 somewhere [1] 2622
questions [6] 78 109 1317 18 remedial [1] 6019 15 4317 5217 5511 5610 5923 sorry [2] 1921 2319 17 333 436 remedy [2] 62223 6516 sort [10] 1323 26811 27222325
quintessential [1] 2611 Remember [7] 1112 128 1411 says [17] 621 95 176 191820 2925 30811 6716 quite [9] 45 111519 299 4120 4324 521 538 5716 357 3717 4116 421224 4618 sorts [2] 2717 6125 4714 4915 503 5114 remotely [1] 4317 48319 492125 541112 SOTOMAYOR [16] 1218 1359
quo [2] 4513 removing [1] 3025 scholars [1] 4114 1112 146 2617 2726911 345 quotes [1] 4115 renovated [1] 2613 scientific [1] 83 401619 4721 662
R repeat [1] 633 scope [3] 3814 4916 5214 south [1] 3211
raised [1] 1219
range [2] 2622 4816
ratchet [1] 225
rates [1] 820
rather [4] 92121 205 267
ratification [2] 4013 4112
ratified [1] 407
ratify [2] 3918 416
read [3] 372 52716
reading [2] 2019 354
real [1] 5710
really [12] 54 9202224 2020 37
reply [2] 618 646
report [10] 123 41111516 4224
511517 54710 6022
request [1] 3613
require [3] 2819 4610 5625
required [2] 1819 6518
requirement [2] 303 553
research [2] 844
reserving [1] 1912
residents [1] 3216
resolution [1] 82
resources [3] 53101320
respect [10] 215 372424 3813
second [8] 52 72 103 168 18
12 2325 3510 4920
Secondly [1] 679
Secretaries [1] 6222
section [17] 141212 1612 1915
16 201824 21101011 221315
2410 331 343 4616 4725
sector [2] 81421
see [10] 9142223 2118 3221 39
6 451 546 5911 6124
seeking [1] 3217
seem [1] 5624
seems [2] 102 2416
Sovereign [11] 320 9152125 19
6 2719 3041525 4320 5219
sovereigns [8] 197 302 4825
511113 527924
special [6] 88 1024 115 1219
371415
specialized [1] 3819
specific [6] 1619 176 1811 56
20 571 6410
specifically [1] 5411
spending [1] 91
spent [1] 569
stages [1] 4022
Heritage Reporting Corporation Sheet 6 prior - stages
75Official - Subject to Review
stand [1] 6414
standard [20] 33111625 3411
24 361113162123 4318 4612
471617 4912 5344 5422 62
15
standards [7] 4956 59222225
60310
Stanford [1] 118
start [5] 521 15711 3412 6324
started [1] 1522
Starting [2] 321 78
State [23] 55 7141518 9716 18
25 198 2114 2823 3525 3610
14 3922 402 4422 4545 4611
471 54913 6223
statement [1] 378
STATES [39] 111522 27 418
11312 2011 25219 2620 271
3111 3324 3652021 378917
21 3816 391618 42210 4815
16 4919 514 5218 5318 5547
11 562 6220 68811
States [1] 6225
status [5] 3523 4513 5110 54
18
statute [32] 47 525 74 101212
129 167791111 35616 3715
382823 46152124 4819 49
21 5067 533 5512 62218 63
25 642425 654
statutes [2] 3716 509
statutory [13] 323 51922 176
3317 3415 359 4720 501 58
22 6422 6529
Steamboat [2] 61724
step [1] 3510
steps [2] 723 5620
still [2] 137 5224
stilted [1] 1815
stood [2] 367 374
streets [1] 2616
stronger [1] 2517
structural [1] 4719
structure [4] 315 2022 2122 47
12
stuck [1] 910
stuff [1] 75
subbed [2] 6245
subcategory [1] 4920
subject [5] 12111314 3223 54
13
submit [3] 1410 155 615
submitted [2] 682123
subsection [5] 19181820 2022
subsequently [1] 1615
substantiate [1] 3810
substantive [4] 3325 471617 53
4
suddenly [1] 3025
sue [3] 3211 611622
sued [4] 232022 3220 604
suggest [3] 344 366 639
suggested [1] 6217
suggesting [1] 5023
suggestion [2] 364 6717
suggestions [1] 1417
suing [2] 611920
suit [18] 312 41 524 6412 72
1314 15311 215 233 251322
25 312124 3223 606
suits [6] 312224 321131619
support [1] 4114
supporting [3] 122 28 2012
supports [1] 536
SUPREME [2] 1114
surrounding [1] 4314
Sutherland [2] 613 1725
sweep [2] 724 258
sweeping [1] 6419
Switzerland [1] 98
system [2] 4325 4712
systems [1] 5918
T talked [2] 6625 686
talks [3] 811 6418
tandem [2] 515 535
target [1] 6114
Tate [6] 361819 3921 403 437
464
tax [1] 3821
tells [1] 531
tense [1] 324
Tenth [1] 1814
term [3] 410 64310
terms [1] 643
terms [5] 3314 351419 47419
test [2] 1521 6722
Texas [1] 6814
text [16] 31421 51922 191315
15 2018 3313 352235 4720
4812 6325
textual [1] 75
themselves [2] 616 6710
theory [2] 1224 3919
theres [23] 920 181 1910 2016
2111 2622 3118 359 363 403
12 446 4715 4923 5522 5718
581417 601719 6479 671
therefore [3] 342 3624 6316
theyve [2] 3715 4417
thinking [3] 425 4323 5421
third [3] 913 231725
third-party [1] 677
thirdly [1] 1215
three [2] 218 3720
tie [1] 1715
tied [1] 1016
today [5] 1917 2115 236 3710
4019
together [1] 539
took [1] 1718
tort [8] 5325 545 611 622 6423
67911 686
tortious [1] 261
towards [1] 3623
Trade [1] 3720
traditionally [1] 3111
transaction [3] 2925 3011 3210
transactions [1] 814
Treasury [1] 6223
treat [4] 1216 3323 432
treated [4] 3324 398 42210
treatise [2] 613 1725
treatment [7] 4219 48131418
491822 6814
treaty [17] 121417 332022 381
2121324 4124 422122 4311
597 6515 665
tried [1] 497
true [9] 45 721 2119 369 3725
3813 401 496 5416
Truman [1] 1825
Trump [1] 6614
try [4] 1816 406 444 5819
trying [7] 3023 3225 4324 4414
17 4915 532
tuberculosis [1] 5825
tune [1] 4825
turn [2] 104 1117
turning [1] 1416
two [15] 416 518 77 1317 1621
17321 181 2025 2113 49323
535 6413 671
type [2] 15325
types [1] 5723
U UN [16] 1013 1220 381819 39
10131424 40717 4121717 51
16 549 664
US [5] 321618 3420 382 5322
ultimately [1] 616
un-developed [1] 5917
unanimous [1] 3425
uncertainty [1] 5816
under [22] 319 118 1224 1424
22514 26524 322 3515 382
18 398 4119 4620 501 569 57
13 617 6221418
understand [2] 1821 261
understanding [1] 658
understates [1] 579
Understood [4] 2417 299 3713
4121
undertaken [1] 386
UNITED [33] 111522 27 1112
2011 2519 262025 3111 365
2021 378917 381516 39718
4011 4816 5218 5318 5412 55
4711 562 622025 68711
unless [2] 3516 5916
unlike [1] 5818
unlikely [1] 5518
until [3] 389 3919 4012
up [18] 44 923 164 2015 2225
281 322 37771023 383 441
717 5925 603 629
urge [2] 1914 667
urging [1] 416
uses [2] 178 3514
usual [1] 295
V various [1] 6517
vast [1] 258
Verlinden [1] 4525
VERRILLI [25] 124 210 33679
3412 363 401823 42813 43
11 4591618 468 492 5215 55
621 56313 5747 641
version [1] 6125
versus [2] 34 618
view [1] 2913
violation [1] 3924
virtual [1] 3312
virtually [22] 331521 34117 36
1622 3817 391151623 4122
4223 433 462 4717 4817 52
20 5720 621113 6518
vitally [1] 502
W waive [7] 917 2313 24310 3121
2124
waived [1] 324
wanted [4] 1711 19125 231
wants [1] 6313
War [1] 446
Washington [4] 1102124 583
wastewater [1] 6814
way [29] 6920 1216 1322 1421
157 1615 172325 2416 2516
21 3446 3822 3967 423515
4913 5216 5620 5713 5912 62
21 6537 6818
ways [3] 211 2211 671
wealth [1] 196
website [1] 811
Wednesday [1] 111
well-established [1] 3512
whatever [1] 2311
wheres [1] 571
Whereupon [1] 6822
whether [7] 1321 156 2914 34
22 361 3825 6412
whole [4] 2025 3818 411 5817
wide [1] 3814
will [11] 311 3816 431921 5021
5224 551515 578 635 6618
win [2] 5889
wire [1] 3423
wit [1] 6418
within [5] 8916 106 369 562
Woods [2] 4325 441
word [11] 48101415 522 610
1589 1789 4014
words [5] 128 224 2912 5221
6520
work [8] 2213 2416 449 4710
616 63715 6811
workable [1] 1423
worked [1] 4917
workers [1] 413
works [1] 825
World [13] 81722 2716 283 30
Heritage Reporting Corporation Sheet 7 stand - World
76Official - Subject to Review
2224 324 3720 44555 5823
5915
worry [1] 5514
write [1] 674
writes [1] 174
wrote [2] 4910
WTO [1] 3812
Yyear [1] 6423
York [1] 2616
Heritage Reporting Corporation Sheet 8 World - York