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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, D.C. Date: October 31, 2018 HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 206 Washington, D.C. 20005 (202) 628-4888 www.hrccourtreporters.com

SUPREME COURT OF THE UNITED STATES · 2018. 10. 31. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. BUDHA ISMAIL JAM, ET AL., ) Petitioners, ) v

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Page 1: SUPREME COURT OF THE UNITED STATES · 2018. 10. 31. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. BUDHA ISMAIL JAM, ET AL., ) Petitioners, ) v

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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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Official - Subject to Final Review

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

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5

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Heritage Reporting Corporation Sheet 5 market - principles

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471 54913 6223

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464

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Heritage Reporting Corporation Sheet 7 stand - World

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Heritage Reporting Corporation Sheet 8 World - York

Page 2: SUPREME COURT OF THE UNITED STATES · 2018. 10. 31. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. BUDHA ISMAIL JAM, ET AL., ) Petitioners, ) v

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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)

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

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

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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

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

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citizens [1] 3216

Civil [1] 655

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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

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Clinton [1] 6614

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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

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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

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components [1] 822

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concept [1] 4416

concern [4] 1325 414 4320 66

17

concerned [1] 622

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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

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Heritage Reporting Corporation Sheet 5 market - principles

74Official - Subject to Review

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182223 3011113 5915 6818 reams [1] 61 Respondent [4] 1725 211 338 Senate [6] 123 41111516 4224

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stand [1] 6414

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standards [7] 4956 59222225

60310

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12

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464

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4019

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2124

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Heritage Reporting Corporation Sheet 8 World - York

Page 3: SUPREME COURT OF THE UNITED STATES · 2018. 10. 31. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. BUDHA ISMAIL JAM, ET AL., ) Petitioners, ) v

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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

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

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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

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Page 4: SUPREME COURT OF THE UNITED STATES · 2018. 10. 31. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. BUDHA ISMAIL JAM, ET AL., ) Petitioners, ) v

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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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19

20

21

22

23

24

25

68

Official - Subject to Final Review

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

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

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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

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occurred [2] 2622

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October [1] 111

Office [1] 686

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official [1] 215

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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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ones [1] 582

only [8] 423 62 2116 225 2810

296 417 6510

open [1] 3117

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opinion [4] 69 1624 3424 5617

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opposed [1] 554

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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

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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

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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

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position [5] 1525 1822 4610 66

810

possibly [2] 38510

potential [1] 6715

power [2] 249 6121

powerful [1] 613

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practice [1] 296

precisely [1] 3718

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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

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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

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rates [1] 820

rather [4] 92121 205 267

ratification [2] 4013 4112

ratified [1] 407

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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

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3317 3415 359 4720 501 58

22 6422 6529

Steamboat [2] 61724

step [1] 3510

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still [2] 137 5224

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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

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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

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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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supports [1] 536

SUPREME [2] 1114

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Sutherland [2] 613 1725

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Switzerland [1] 98

system [2] 4325 4712

systems [1] 5918

T talked [2] 6625 686

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target [1] 6114

Tate [6] 361819 3921 403 437

464

tax [1] 3821

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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

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2111 2622 3118 359 363 403

12 446 4715 4923 5522 5718

581417 601719 6479 671

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theyve [2] 3715 4417

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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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2121324 4124 422122 4311

597 6515 665

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3813 401 496 5416

Truman [1] 1825

Trump [1] 6614

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17 4915 532

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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

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22514 26524 322 3515 382

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

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4011 4816 5218 5318 5412 55

4711 562 622025 68711

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281 322 37771023 383 441

717 5925 603 629

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V various [1] 6517

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Verlinden [1] 4525

VERRILLI [25] 124 210 33679

3412 363 401823 42813 43

11 4591618 468 492 5215 55

621 56313 5747 641

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1622 3817 391151623 4122

4223 433 462 4717 4817 52

20 5720 621113 6518

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W waive [7] 917 2313 24310 3121

2124

waived [1] 324

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War [1] 446

Washington [4] 1102124 583

wastewater [1] 6814

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157 1615 172325 2416 2516

21 3446 3822 3967 423515

4913 5216 5620 5713 5912 62

21 6537 6818

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website [1] 811

Wednesday [1] 111

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whatever [1] 2311

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Whereupon [1] 6822

whether [7] 1321 156 2914 34

22 361 3825 6412

whole [4] 2025 3818 411 5817

wide [1] 3814

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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

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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

76Official - Subject to Review

2224 324 3720 44555 5823

5915

worry [1] 5514

write [1] 674

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wrote [2] 4910

WTO [1] 3812

Yyear [1] 6423

York [1] 2616

Heritage Reporting Corporation Sheet 8 World - York

Page 5: SUPREME COURT OF THE UNITED STATES · 2018. 10. 31. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. BUDHA ISMAIL JAM, ET AL., ) Petitioners, ) v

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Official - Subject to Final Review

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

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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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

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APPEARANCES [1] 117

appendix [1] 481

apples [1] 644

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6

apply [7] 1010 161 1919 2215

basically [2] 1822 5011

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2125

bear [1] 681

became [1] 3922

become [1] 6125

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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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

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

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

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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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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

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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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choose [1] 678

Circuit [4] 1814 5717 6214 63

17

circumstances [1] 3224

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citizens [1] 3216

Civil [1] 655

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Claims [3] 6423 6739

class [3] 5324 6025 6116

classic [1] 404

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2521 2716 4021 4121 4614 50

325 511414161719 646

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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

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Heritage Reporting Corporation Sheet 5 market - principles

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Heritage Reporting Corporation Sheet 8 World - York

Page 6: SUPREME COURT OF THE UNITED STATES · 2018. 10. 31. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. BUDHA ISMAIL JAM, ET AL., ) Petitioners, ) v

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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

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

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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

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76Official - Subject to Review

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Heritage Reporting Corporation Sheet 8 World - York

Page 7: SUPREME COURT OF THE UNITED STATES · 2018. 10. 31. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. BUDHA ISMAIL JAM, ET AL., ) Petitioners, ) v

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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

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5

negotiated [3] 115 1220 3914

never [1] 6723

New [1] 2616

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Nobodys [1] 6217

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Number [6] 242424 2713 3115

4424 6421

numbers [1] 2621

O OAS [4] 113 1221 282224

OBB [3] 2520 5618 587

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24 6515

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October [1] 111

Office [1] 686

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1113 191218 211116 2424 25

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4014 4313 4722 4823 4925 50

67 54613 5512 6015 64717

65615 6624 67319 688

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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

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2225 824 101421 1111422

214 2221 232 2518 261923

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14 68410

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23 95 13125 141019 1715 18

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664 688

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6310

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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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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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Petitioners [10] 141923 24814

38 201219 6322

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19 35111 377 4023 501924

524 53814 551 641216

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6324 6511 676

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810

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President [9] 55 1225 136 225

24 2313 243 3410 4619

Presidents [3] 1212 2214 475

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11

pressure [1] 446

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Heritage Reporting Corporation Sheet 5 market - principles

74Official - Subject to Review

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10 433 451317 49182225 54

16 653 solely [1] 354

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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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511517 54710 6022

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12 2325 3510 4920

Secondly [1] 679

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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

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Sovereign [11] 320 9152125 19

6 2719 3041525 4320 5219

sovereigns [8] 197 302 4825

511113 527924

special [6] 88 1024 115 1219

371415

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20 571 6410

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Heritage Reporting Corporation Sheet 6 prior - stages

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stand [1] 6414

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

started [1] 1522

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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

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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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12

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4

suddenly [1] 3025

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1314 15311 215 233 251322

25 312124 3223 606

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464

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Texas [1] 6814

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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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491822 6814

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597 6515 665

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535 6413 671

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13 617 6221418

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4121

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2124

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Heritage Reporting Corporation Sheet 7 stand - World

76Official - Subject to Review

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5915

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Heritage Reporting Corporation Sheet 8 World - York

Page 8: SUPREME COURT OF THE UNITED STATES · 2018. 10. 31. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. BUDHA ISMAIL JAM, ET AL., ) Petitioners, ) v

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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

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

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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

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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

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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

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Heritage Reporting Corporation Sheet 7 stand - World

76Official - Subject to Review

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Heritage Reporting Corporation Sheet 8 World - York

Page 9: SUPREME COURT OF THE UNITED STATES · 2018. 10. 31. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. BUDHA ISMAIL JAM, ET AL., ) Petitioners, ) v

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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

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negligence [2] 56711

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5

negotiated [3] 115 1220 3914

never [1] 6723

New [1] 2616

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Nobodys [1] 6217

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normal [1] 3414

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notwithstanding [1] 487

Number [6] 242424 2713 3115

4424 6421

numbers [1] 2621

O OAS [4] 113 1221 282224

OBB [3] 2520 5618 587

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24 6515

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October [1] 111

Office [1] 686

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1113 191218 211116 2424 25

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4014 4313 4722 4823 4925 50

67 54613 5512 6015 64717

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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

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2225 824 101421 1111422

214 2221 232 2518 261923

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4010 4219 4427 4851424 49

17 5018 5141222 52611 53

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6212 6318 6521 661423 67

14 68410

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23 95 13125 141019 1715 18

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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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PAGE [5] 22 3420 3717 4113

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Parte [1] 1514

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6613

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Peru [1] 1514

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Petitioners [10] 141923 24814

38 201219 6322

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19 35111 377 4023 501924

524 53814 551 641216

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810

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President [9] 55 1225 136 225

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Presidents [3] 1212 2214 475

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11

pressure [1] 446

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Heritage Reporting Corporation Sheet 5 market - principles

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10 433 451317 49182225 54

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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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511517 54710 6022

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Secondly [1] 679

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section [17] 141212 1612 1915

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2410 331 343 4616 4725

sector [2] 81421

see [10] 9142223 2118 3221 39

6 451 546 5911 6124

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Sovereign [11] 320 9152125 19

6 2719 3041525 4320 5219

sovereigns [8] 197 302 4825

511113 527924

special [6] 88 1024 115 1219

371415

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20 571 6410

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stand [1] 6414

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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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25 198 2114 2823 3525 3610

14 3922 402 4422 4545 4611

471 54913 6223

statement [1] 378

STATES [39] 111522 27 418

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16 4919 514 5218 5318 5547

11 562 6220 68811

States [1] 6225

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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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4

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25 312124 3223 606

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Tate [6] 361819 3921 403 437

464

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Texas [1] 6814

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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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491822 6814

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597 6515 665

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17321 181 2025 2113 49323

535 6413 671

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4121

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2124

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Heritage Reporting Corporation Sheet 7 stand - World

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Heritage Reporting Corporation Sheet 8 World - York

Page 10: SUPREME COURT OF THE UNITED STATES · 2018. 10. 31. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. BUDHA ISMAIL JAM, ET AL., ) Petitioners, ) v

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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

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

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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

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enough [2] 2523 2921

ensue [1] 5021

ensured [1] 4220

enter [4] 3011212 329

entered [1] 2820

entire [1] 2021

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entities [3] 4423 5724 5818

entitled [3] 319 1922 6521

entity [1] 602

environmental [3] 591921 6813

Equal [1] 6424

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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

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464

tax [1] 3821

tells [1] 531

tense [1] 324

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Texas [1] 6814

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15 2018 3313 352235 4720

4812 6325

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4019

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67911 686

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491822 6814

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17321 181 2025 2113 49323

535 6413 671

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76Official - Subject to Review

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Heritage Reporting Corporation Sheet 8 World - York

Page 11: SUPREME COURT OF THE UNITED STATES · 2018. 10. 31. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. BUDHA ISMAIL JAM, ET AL., ) Petitioners, ) v

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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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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

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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

became [1] 3922

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becomes [1] 1815

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8 6322

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beneficiaries [1] 677

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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

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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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

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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

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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

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cetera [4] 48699 5321

change [4] 305 348 4310 6312

changes [1] 46

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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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citizens [1] 3216

Civil [1] 655

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Claims [3] 6423 6739

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Clinton [1] 6614

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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

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Page 12: SUPREME COURT OF THE UNITED STATES · 2018. 10. 31. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. BUDHA ISMAIL JAM, ET AL., ) Petitioners, ) v

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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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25

68

Official - Subject to Final Review

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

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

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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

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unlikely [1] 5518

until [3] 389 3919 4012

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281 322 37771023 383 441

717 5925 603 629

urge [2] 1914 667

urging [1] 416

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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

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violation [1] 3924

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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

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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

Page 13: SUPREME COURT OF THE UNITED STATES · 2018. 10. 31. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. BUDHA ISMAIL JAM, ET AL., ) Petitioners, ) v

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Official - Subject to Final Review

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

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

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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

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76Official - Subject to Review

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Page 14: SUPREME COURT OF THE UNITED STATES · 2018. 10. 31. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. BUDHA ISMAIL JAM, ET AL., ) Petitioners, ) v

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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

anybody [3] 3825 4014 4312

anybodys [1] 4323

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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

become [1] 6125

becomes [1] 1815

behalf [8] 11925 241114 38 33

8 6322

behind [1] 523

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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

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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

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

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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

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

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Circuit [4] 1814 5717 6214 63

17

circumstances [1] 3224

citations [1] 645

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citizens [1] 3216

Civil [1] 655

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Claims [3] 6423 6739

class [3] 5324 6025 6116

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325 511414161719 646

clearly [2] 4714 547

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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

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

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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

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compare [2] 1915 4823

competent [1] 622

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completely [4] 424 4415 47824

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components [1] 822

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concept [1] 4416

concern [4] 1325 414 4320 66

17

concerned [1] 622

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concludes [1] 5218

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concrete [1] 5710

conditioned [1] 4810

conditions [3] 5321 5618

conduct [2] 261 3217

conference [2] 54811

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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

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Page 15: SUPREME COURT OF THE UNITED STATES · 2018. 10. 31. · SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES. BUDHA ISMAIL JAM, ET AL., ) Petitioners, ) v

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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

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