Amicus Curiae Brief — Budha Ismail Jam, et al., Petitioners v. International Finance Corporation

No. 17-1011

In the Supreme Court of the United States

BUDHA ISMAIL JAM, ET AL., PETITIONERS

v.

INTERNATIONAL FINANCE CORPORATION

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING REVERSAL

JENNIFER G. NEWSTEAD

Legal Adviser

Department of State

Washington, D.C. 20520

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

EDWIN S. KNEEDLER

Deputy Solicitor General

JONATHAN Y. ELLIS

Assistant to the Solicitor

General

SHARON SWINGLE

LEWIS S. YELIN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

The International Organizations Immunities Act

generally affords international organizations “the same

immunity from suit and every form of judicial process

as is enjoyed by foreign governments.” 22 U.S.C. 288a.

The question presented is whether the immunity of international organizations from suit and other judicial

process is governed by the immunity standards applicable to foreign governments when the statute was enacted in 1945 or those applicable to foreign governments today.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement ...................................................................................... 2

Summary of argument ............................................................... 10

Argument:

The International Organizations Immunities Act

affords designated international organizations the

same jurisdictional immunity as is currently enjoyed

by foreign states..................................................................... 13

A. The text, structure, and history of the IOIA

support application of the same immunity enjoyed

by foreign states to international organizations .......... 14

B. The conduct of the political Branches following

enactment of the IOIA supports affording

international organizations the jurisdictional

immunity currently enjoyed by foreign sovereigns ...... 24

C. The court of appeals’ view of international

organization immunity would present practical

problems and is not required by respondent’s policy

concerns............................................................................ 29

Conclusion ................................................................................... 35

TABLE OF AUTHORITIES

Cases:

Alfred Dunhill of London, Inc. v. Republic of Cuba,

425 U.S. 682 (1976)................................................................ 5

Argentine Republic v. Amerada Hess Shipping

Corp., 488 U.S. 428 (1989) .................................................... 6

Atkinson v. Inter-American Dev. Bank, 156 F.3d

1335 (D.C. Cir. 1998)........................................8, 9, 21, 23, 30

Barrett v. United States, 423 U.S. 212 (1976) ..................... 14

Berizzi Bros. Co. v. Steamship Pesaro, 271 U.S. 562

(1926) .............................................................................. 17, 30

(III)

IV

Cases—Continued:

Page

Burrage v. United States, 571 U.S. 204 (2014) ................... 31

Bzrak v. United Nations, 597 F.3d 107 (2d Cir.),

cert. denied, 562 U.S. 948 (2010) ....................................... 32

Carr v. United States, 560 U.S. 438 (2010) .......................... 14

Chickasaw Nation v. United States, 534 U.S. 84

(2001) .................................................................................... 20

Crosby v. National Foreign Trade Council,

530 U.S. 363 (2000).............................................................. 24

Culver v. People, 43 N.E. 812 (Ill. 1896) .............................. 15

Dole Food Co. v. Patrickson, 538 U.S. 468 (2003) ............... 14

El Encanto, Inc. v. Hatch Chile Co., 825 F.3d 1161

(10th Cir. 2016) .................................................................... 15

Gaston v. Lamkin, 21 S.W. 1100 (Mo. 1893) ........................ 16

Gwaltney of Smithfield, Ltd v. Chesapeake Bay

Found., Inc. 484 U.S. 49 (1987) ......................................... 15

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) .................... 20

K Mart Corp. v. Cartier, Inc., 486 U.S. 281 (1988) ............. 16

Leo Sheep Co. v. United States, 440 U.S. 668 (1979) .......... 17

Medellin v. Texas, 552 U.S. 491 (2008) ............................... 26

Mendaro v. World Bank, 717 F.2d 610

(D.C. Cir. 1983) ................................................................. 8, 9

Murphy v. Smith, 138 S. Ct. 784 (2018) ............................... 15

OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390

(2015) .................................................................................... 33

Permanent Mission of India to the U.N. v.

City of N.Y., 551 U.S. 193 (2007)........................................ 14

Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) ............... 33

Republic of Austria v. Altmann, 541 U.S. 677

(2004) ............................................................................ 4, 5, 31

Republic of Mexico v. Hoffman, 324 U.S. 30 (1945) .... 18, 31

Samantar v. Yousuf, 560 U.S. 305 (2010) ................. 4, 29, 30

Sebelius v. Cloer, 133 S. Ct. 1886 (2013) .............................. 16

V

Cases—Continued:

Page

The Pesaro, 277 F. 473 (S.D.N.Y. 1921) ........................ 17, 30

The Schooner Exchange v. McFaddon,

11 U.S. (7 Cranch) 116 (1812) ............................................ 18

United States v. Deutsches Kalisyndikat

Gesellschaft, 31 F.2d 199 (S.D.N.Y. 1929) ........................ 31

United States v. Rodriguez-Rodriguez, 863 F.2d 830

(11th Cir. 1989) .................................................................... 15

United States v. Wilson, 503 U.S. 329 (1992) ...................... 14

Verlinden B.V. v. Central Bank of Nigeria,

461 U.S. 480 (1983)................................................ 5, 6, 18, 30

Treaties, statutes, and regulations:

Agreement Establishing the Asian Development

Bank, art. 50, entered into force Aug. 22, 1966,

17 U.S.T. 1418, T.I.A.S. No. 6103 ...................................... 32

Articles of Agreement of the International Development Association, entered into force Sept. 24, 1960,

11 U.S.T. 2284, T.I.A.S. No. 4607 ....................................... 25

Articles of Agreement of the International Finance

Corporation, entered into force July 20, 1956,

7 U.S.T. 2197, T.I.A.S. No. 3620 ........................................... 7

art. I .................................................................................... 7

art. I(i) ................................................................................ 7

art. VI, § 3 .......................................................... 7, 8, 26, 27

Articles of Agreement of the International Monetary

Fund, entered into force Dec. 27, 1945, 60 Stat.

1401, 2 U.N.T.S. 39 .............................................................. 26

art. IX, § 3 ........................................................................ 27

Charter of the Organization of American States, art.

103, entered into force Dec. 13, 1951, 2 U.S.T. 2394,

T.I.A.S. No. 2361 ................................................................. 27

VI

Treaties, statutes, and regulations—Continued:

Page

Convention on the Privileges and Immunities of the

Specialized Agencies, art. III, §4, entered into force

Dec. 2, 1948, 33 U.N.T.S. 261 ............................................. 26

Convention on the Privileges and Immunities of the

United Nations, entered into force Apr. 29, 1970,

21 U.S.T. 1418, T.I.A.S. No. 6900 ...................................... 32

Headquarters Agreement Between the Government

of the United States of America and the Organization of American States, art. IV, § 1, signed at

Washington May 14, 1992, S. Treaty Doc. No. 40,

102d Cong., 2d Sess. (1992) .......................................... 27, 28

Marrakesh Agreement Establishing the World Trade

Organization, art. VIII(4), entered into force Jan. 1,

1995, 1867 U.N.T.S. 154 ...................................................... 26

Foreign Sovereign Immunities Act of 1976,

28 U.S.C. 1602 et seq. ............................................................ 6

28 U.S.C. 1604 .................................................................... 6

28 U.S.C. 1605(a)(1)-(6) ................................................... 24

28 U.S.C. 1605(a)(2) ............................................... 6, 33, 34

28 U.S.C. 1605(a)(5) ........................................................... 6

International Finance Corporation Act, Pub. L. No.

84-350, 69 Stat. 669 (1955) (22 U.S.C. 282 et seq.):

§ 2, 22 U.S.C. 282 ............................................................... 7

§ 8, 22 U.S.C. 282f.............................................................. 7

§ 9, 22 U.S.C. 282g....................................................... 7, 26

International Organizations Immunities Act, Pub. L.

No. 79-291, 59 Stat. 669 (22 U.S.C. 288 et seq.) .................. 2

22 U.S.C. 288 ........................................................... passim

22 U.S.C. 288a ......................................................... passim

22 U.S.C. 288a-288e ........................................................... 2

22 U.S.C. 288a(a) ............................................................... 2

22 U.S.C. 288a(b) .................................................... passim

VII

Statutes and regulations—Continued:

Page

§ 2(c), 22 U.S.C. 288a(c) ........................................ 3, 16, 20

22 U.S.C. 288a(d) ......................................................... 3, 16

§ 3, 22 U.S.C. 288b ....................................................... 4, 20

§ 6, 22 U.S.C. 288c ................................................. 3, 16, 20

22 U.S.C. 288d.................................................................. 16

22 U.S.C. 288d(a) ............................................................... 3

§ 7(b), 22 U.S.C. 288d(b) ....................................... 3, 16, 20

Suits in Admiralty Act, Pub. L. No. 66-156,

41 Stat. 525 (1920) (46 U.S.C. 30901 et seq.) ....................... 5

19 U.S.C. 3511(b) ................................................................... 26

22 U.S.C. 284 .......................................................................... 25

22 U.S.C. 285g ........................................................................ 32

22 U.S.C. 286h ........................................................................ 26

Exec. Order No. 9698, 11 Fed. Reg. 1809 (1946) .................. 2

Exec. Order No. 10,533, 19 Fed. Reg. 3289 (1954) ............. 27

Exec. Order No. 10,680, 21 Fed. Reg. 7647 (1956) ............... 8

Exec. Order No. 11,718, 38 Fed. Reg. 12,797 (1973) .......... 22

Exec. Order No. 11,966, 42 Fed. Reg. 4331 (1977) ............. 25

Exec. Order No. 12,425, 48 Fed. Reg. 28,069 (1983) .......... 22

Miscellaneous:

91 Cong. Rec. (1945):

p. 10,867 ............................................................................ 19

p. 12,432 ...................................................................... 19, 23

p. 12,530 ............................................................................ 23

p. 12,531 ............................................................................ 20

p. 12,532 ............................................................................ 19

140 Cong. Rec. 28,361 (1994) ................................................ 28

H.R. No. 4489, 79th Cong., 1st Sess. (1945) ............ 10, 19, 20

2 Green Haywood Hackworth, Digest of

International Law (1941) .................................................. 17

VIII

Miscellaneous—Continued:

Page

Letter from Roberts B. Owen, Legal Adviser, to

Leroy D. Clark, Gen. Counsel, Equal Emp’t

Opportunity Comm’n (June 24, 1980) ............................... 28

Letter from Jack B. Tate, Acting Legal Adviser, to

the Attorney General ( May 19, 1952), reprinted in

Alfred Dunhill of London, Inc. v. Republic of Cuba,

425 U.S. 682 (1976).....................................5, 6, 16, 17, 18, 24

Letter from Detlev F. Vagts, Office of the

Legal Adviser, to Robert M. Carswell, Jr.,

Organization of American States (Mar. 24, 1977) ...... 28, 30

S. Rep. No. 861, 79th Cong., 1st Sess. (1945)...... 9, 20, 23, 34

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) ......................... 15

2B Norman J. Singer, et al., Sutherland Statutes &

Statutory Construction (7th ed. rev. 2012) ...................... 15

2 J. G. Sutherland, Sutherland Statutes & Statutory

Construction (John Lewis ed. 1904) ................................. 15

In the Supreme Court of the United States

No. 17-1011

BUDHA ISMAIL JAM, ET AL., PETITIONERS

v.

INTERNATIONAL FINANCE CORPORATION

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING REVERSAL

INTEREST OF THE UNITED STATES

The United States’ participation in international organizations is a critical component of the Nation’s foreign relations and reflects an understanding that robust

multilateral engagement is a crucial tool in advancing

national interests. The United States participates in or

supports nearly 200 international organizations and

other multilateral entities, including major international financial institutions such as the International

Monetary Fund (IMF) and the World Bank. The United

States contributes billions of dollars annually to those

organizations and entities. In recognition of the United

States’ leadership role, nearly 20 international organizations are headquartered in the United States, and

many others have offices here. For these reasons, the

United States has a substantial interest in the proper

(1)

2

interpretation of the provisions of the International Organizations Immunities Act (IOIA or Act), 22 U.S.C. 288

et seq., that define international organizations’ amenability to suit in the United States.

STATEMENT

1. a. Congress enacted the IOIA in 1945 to provide

certain privileges and immunities to international organizations, their officers, and employees. See Pub. L.

No. 79-291, 59 Stat. 669 (22 U.S.C. 288, et seq.). The Act

defines “international organization” as “a public international organization in which the United States participates” pursuant to a treaty or an Act of Congress, and

which is designated by the President in an Executive

Order “as being entitled to enjoy the privileges, exemptions, and immunities” provided by the Act. 22 U.S.C.

288; see, e.g., Exec. Order No. (EO) 9698, 11 Fed. Reg.

1809 (1946) (designating, among others, the United Nations and the Pan American Union). The Act then

grants such international organizations the capacity to

contract, to acquire and dispose of real and personal

property, and to sue “to the extent consistent with the

instrument creating them,” 22 U.S.C. 288a(a), as well as

a series of privileges, exemptions, and immunities. See

22 U.S.C. 288a-288e.

Some of these privileges, exemptions, and immunities are provided by reference to comparable privileges,

exemptions, and immunities enjoyed by foreign states.

Of greatest relevance here, the Act provides:

International organizations, their property and their

assets, wherever located, and by whomsoever held,

shall enjoy the same immunity from suit and every

form of judicial process as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the

3

purpose of any proceedings or by the terms of any

contract.

22 U.S.C. 288a(b). With respect to customs duties and

taxes imposed on imported items, the registration of

foreign agents, and the treatment of official communications, the IOIA likewise grants international organizations the “privileges, exemptions, and immunities

* * * accorded under similar circumstances to foreign

governments.” 22 U.S.C. 288a(d). And the IOIA similarly affords the representatives of foreign governments to international organizations, the officers and

employees of such organizations, and immediate family

residing with such individuals “the same privileges, exemptions, and immunities” under immigration law “as

are accorded under similar circumstances to officers

and employees, respectively, of foreign governments,

and members of their families.” 22 U.S.C. 288d(a).

Other privileges, exemptions, and immunities are

provided without reference to those enjoyed by foreign

governments. The property and assets of international

organizations, for example, are “immune from search,

unless such immunity [is] expressly waived, and from

confiscation.” 22 U.S.C. 288a(c). Similarly, international organizations are “exempt” from all federal property

taxes. 22 U.S.C. 288c. Representatives of foreign governments to international organizations, as well as officers and employees of such organizations, are “immune from suit and legal process relating to acts performed by them in their official capacity and falling

within their functions,” absent waiver by the foreign

government or the international organization. 22 U.S.C.

288d(b). And the “baggage and effects” of those persons and their families are admitted into the United

4

States “free of customs duties” or importation taxes.

22 U.S.C. 288b.

Finally, the IOIA authorizes the President to “withhold or withdraw,” or to “condition or limit,” any of the

privileges, exemptions, and immunities provided by the

Act “in the light of the functions performed by any [designated] international organization.” 22 U.S.C. 288. It

further authorizes the President to revoke an entity’s

designation as an international organization if the President determines that the organization or its personnel

have “abuse[d] * * * the privileges, exemptions, and

immunities provided [by the Act] or for any other reason.” Ibid.

b. When Congress enacted the IOIA in 1945, the immunity of foreign states was determined by a “two-step

procedure.” Samantar v. Yousuf, 560 U.S. 305, 311

(2010). First, a foreign state “could request a ‘suggestion of immunity’ from the State Department.” Ibid. (citation omitted). “If the request was granted, the district court surrendered its jurisdiction.” Ibid. Second,

if the State Department did not inform the court of its

views concerning the foreign state’s immunity, the

court “had authority to decide for itself whether all the

requisites for such immunity existed,” i.e., “whether the

ground of immunity is one which it is the established

policy of the [State Department] to recognize.” Id. at

311-312 (citations omitted).

Historically, the State Department generally subscribed to the “classical or absolute” theory of foreign

sovereign immunity. Republic of Austria v. Altmann,

541 U.S. 677, 690 (2004) (citation omitted). Under that

theory, “a sovereign cannot, without his consent, be

made a respondent in the courts of another sovereign.”

5

Ibid. (citation omitted). Accordingly, “the State Department ordinarily requested immunity in all actions

against friendly foreign sovereigns.” Verlinden B.V. v.

Central Bank of Nigeria, 461 U.S. 480, 486 (1983). In

1952, however, the State Department announced its

adoption of the “restrictive” theory of foreign sovereign

immunity, under which foreign states generally are afforded immunity only for their sovereign or public acts,

and not for their commercial or other private acts. See

Letter from Jack B. Tate, Acting Legal Adviser, to the

Attorney General (May 19, 1952), reprinted in Alfred

Dunhill of London, Inc. v. Republic of Cuba, 425 U.S.

682, 711-714 (1976) (Tate Letter).

In the Tate Letter, the State Department noted that

“for some time” it had “consider[ed] the question

whether the practice of the Government in granting immunity from suit to foreign governments made parties

defendant in the courts of the United States without

their consent should not be changed.” 425 U.S. at 711.

The Department explained that there were “two conflicting concepts of sovereign immunity, each widely

held and firmly established.” Ibid. And it observed

that, although the United States had generally followed

the absolute theory, international practice had been

trending towards the restrictive theory since at least

the 1920s. See id. at 712-713. Indeed, the United States

itself had “adopted a policy of not claiming immunity for

its public owned or operated merchant vessels”—a context of some “importance” in the “field of sovereign immunity.” Id. at 713; see Suits in Admiralty Act, Pub. L.

No. 66-156, 41 Stat. 525 (1920) (46 U.S.C. 30901 et seq.).

The Department reasoned that by 1952, “with the

possible exception[s]” of the United Kingdom and the

Soviet Union, “little support ha[d] been found * * * for

6

continued full acceptance of the absolute theory.” Tate

Letter, 425 U.S. at 714. It noted that continuing to grant

foreign governments absolute immunity in U.S. courts

would be inconsistent with the United States’ practice

of “subjecting itself to suit in these same courts in both

contract and tort.” Ibid. And the Department reasoned

that the “widespread and increasing practice on the

part of governments of engaging in commercial activities ma[de] necessary a practice which w[ould] enable

persons doing business with them to have their rights

determined in the courts.” Ibid. Accordingly, the State

Department announced that “it w[ould] [t]hereafter be

the Department’s policy to follow the restrictive theory

of sovereign immunity in the consideration of requests

of foreign governments for a grant of sovereign immunity.” Ibid.

c. Congress subsequently enacted the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. 1602

et seq., codifying, “as a matter of federal law, the restrictive theory of sovereign immunity.” Verlinden, 461 U.S.

at 488. The FSIA now provides the sole basis for

obtaining jurisdiction over a foreign state in a civil case

brought in a U.S. court. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434-435 (1989).

Under the FSIA, foreign states and their agencies and

instrumentalities are immune unless a claim falls within

one of the statute’s specified exceptions. 28 U.S.C.

1604. The exceptions permit, inter alia, certain actions

against a foreign state that arise out of its commercial

activities, 28 U.S.C. 1605(a)(2), and certain torts committed in the United States, 28 U.S.C. 1605(a)(5).

2. a. Respondent International Finance Corporation (IFC) is an international organization established

by an international agreement to which the United

7

States is a party. See Articles of Agreement of the International Finance Corporation, entered into force

July 20, 1956, 7 U.S.T. 2197, T.I.A.S. No. 3620 (Articles

of Agreement). The IFC’s purpose is “to further economic development by encouraging the growth of productive private enterprise in member countries, particularly in the less developed areas,” by among other

things, making investments in cases “where sufficient

private capital is not available on reasonable terms.”

Id. art. I, I(i). The Articles of Agreement provide that

“[a]ctions may be brought against the Corporation only

in a court of competent jurisdiction in the territories of

a member in which the Corporation has an office” or

other specified connection. Id. art. VI, § 3. Actions

“brought by members” of the IFC “or persons acting

for or deriving claims from members” are prohibited.

Ibid. The Articles of Agreement further provide for the

immunity of IFC property from “seizure, attachment or

execution before the delivery of final judgment against

Corporation.” Ibid.

Shortly after the United States signed the Articles

of Agreement, Congress enacted the International Finance Corporation Act, authorizing the President “to

accept membership for the United States” in the IFC.

Pub. L. No. 84-350, § 2, 69 Stat. 669 (1955) (22 U.S.C.

282). The statute also provides for original jurisdiction

in United States district courts over any suit brought

against the IFC “in accordance with the Articles of

Agreement.” Id. § 8 (22 U.S.C. 282f ). And it provides

“full force and effect in the United States” to, among

other provisions, article VI, § 3 of the Articles of Agreement, relating to the IFC’s amenability to suit. Id. § 9

(22 U.S.C. 282g). The President subsequently designated the IFC as an international organization “entitled

8

to enjoy the privileges, exemptions, and immunities conferred by” the IOIA. EO 10,680, 21 Fed. Reg. 7647 (1956).

b. Petitioners are residents of India who live near

the Tata Mundra Power Plant in Gujarat. Pet. App. 2a.

The IFC provided a loan of $450 million to the owner of

the plant for its construction and operation. Id. at 3a.

In accordance with IFC policy, the loan agreement contained provisions designed to protect local communities,

requiring the loan recipient to manage environmental

and social risks posed by the financed project. Id. at 3a,

25a. The IFC retained supervisory authority over the

plant owner’s compliance with the environmental and

social risks provisions and could revoke financial support for noncompliance. Id. at 3a. According to an audit

conducted by the IFC’s ombudsman, the owner of the

plant did not comply with the environmental and social

risks provisions; the IFC, however, did not revoke the

plant’s financing. Ibid.

Petitioners sued the IFC, asserting claims that “are

almost entirely based on tort,” but raising one claim as

alleged third-party beneficiaries of the environmental

and social risks provisions of the loan agreement. Pet.

App. 3a. The district court dismissed petitioners’ suit,

concluding that it was barred by the court of appeals’

decision in Atkinson v. Inter-American Development

Bank, 156 F.3d 1335 (D.C. Cir. 1998). Pet. App. 29a30a, 37a-38a. 1

In Atkinson, the court of appeals held that, in providing international organizations with the “same immunity * * * as is enjoyed by foreign governments,”

The district court further determined that article VI, § 3 of the

Articles of Agreement did not waive the IFC’s immunity from suit,

under the standards the court of appeals adopted in Mendaro v.

World Bank, 717 F.2d 610 (D.C. Cir. 1983). Pet. App. 30a-37a.

1

9

22 U.S.C. 288a(b), Congress intended to adopt foreign

sovereign immunity law “only as it existed in 1945—

when immunity of foreign sovereigns was absolute.”

156 F.3d at 1341. The court reasoned that the statutory

text lacked “a clear instruction as to whether Congress

meant to incorporate into the IOIA subsequent changes

to the law of immunity of foreign sovereigns.” Ibid. But

it believed that by authorizing the President to modify

a designated organization’s immunities for abuse or

other reasons under 22 U.S.C. 288, Congress “delegate[d] to the President the responsibility for updating

the immunities of international organizations in the face

of changing circumstances.” Atkinson, 156 F.3d at

1341. The court also found telling a statement in the

Senate Report explaining that the President could restrict an international organization’s immunity if it engaged in “activities of a commercial nature.” Ibid.

(quoting S. Rep. No. 861, 79th Cong., 1st Sess., 2 (1945)

(Senate Report)).

Noting that it was bound by Atkinson’s interpretation, the court of appeals in this case affirmed the district court’s dismissal of petitioners’ suit. Pet. App. 4a7a. 2 Judge Pillard concurred for the same reason, but

wrote separately to express the view that Atkinson was

wrongly decided. Id. at 12a-22a. Judge Pillard reasoned that “[w]hen a statute incorporates existing law

by reference, the incorporation is generally treated as

dynamic, not static,” and incorporates changes to the

incorporated body of law. Id. at 12a-13a. She concluded

The court of appeals also affirmed the district court’s determination that the IFC had not waived its immunity under Mendaro,

supra. Pet. App. 7a-11a. This Court declined to grant further review of that determination. See 138 S.Ct. 2026 (2018) (granting certiorari “limited to Question 1”); Pet. i.

2

10

that Atkinson was mistaken in relying on the President’s ability under the IOIA to restrict international

organizations’ immunity, because, in her view, that authority is “organization- and function-specific” and does

not authorize the President generally to modify the applicable standard. Id. at 13a-14a. And she noted that

Congress had considered and rejected a provision that

would have expressly granted absolute immunity to international organizations. Id. at 14a-15a (discussing

H.R. 4489, 79th Cong., 1st Sess. § 2(b)). Judge Pillard

further explained that Atkinson’s static interpretation

conflicted with the “considered view” of the State Department that international organizations are subject to

suit for commercial activities by virtue of the FSIA’s enactment. Id. at 15a. Finally, Judge Pillard stated that

it made no sense to permit commercial suits against a

foreign state acting alone, but not when states act in

concert through an international organization. Id. at 16a.

SUMMARY OF ARGUMENT

Section 288a(b) of the IOIA affords designated international organizations the same jurisdictional immunity

as is currently enjoyed by foreign states, not as was enjoyed in 1945.

A. The text, structure, and history of the IOIA support this interpretation. Congress’s use of the presenttense phrase—“as is enjoyed”—is most naturally read

to refer to the immunity afforded to foreign sovereigns

when the statute is applied, not some 70 years in the

past. If Congress had intended a backward-looking inquiry, it could have stated that international organizations shall be afforded the same immunity “as was enjoyed on the Act’s effective date” or something similar.

Congress’s decision not to use such language is telling,

particularly in light of the background principle that

11

statutory references to other bodies of law generally incorporate subsequent amendments to the referenced

body of law.

This interpretation of Section 288a(b) is further supported by the structure of the IOIA. While Congress

defined some protections for international organizations by reference to the protections afforded foreign

governments, it defined others under a specific substantive standard. That suggests that, if Congress had intended to adopt a particular standard for international

organizations’ immunity from suit, it would have done

so expressly—particularly given that, at the time, international consensus was trending towards the restrictive

theory and the State Department itself had declined to

recognize immunity in suits involving foreign stateowned vessels engaged in commercial activities.

Finally, the history of the IOIA also supports affording international organizations the same jurisdictional

immunity as is afforded foreign states at the time of

suit. As originally passed by the House of Representatives, Section 288a(b) expressly afforded international

organizations absolute immunity from suit. But the

Senate stripped the grant of absolute immunity and replaced it with the current language. This Court ordinarily assumes that Congress did not intend sub silentio to enact statutory language that it earlier discarded.

B. The conduct of the Executive Branch under the

IOIA and subsequent congressional enactments further

support this interpretation.

The process for affording privileges and immunities

to international organizations typically proceeds in three

parts: (1) the Executive Branch enters into an agreement

to form an international organization; (2) Congress authorizes the United States’ participation; and (3) the

12

President issues an Executive Order designating the

organization as entitled to the privileges and immunities afforded by the IOIA. But when agreements require the United States to afford the organization absolute immunity from suit (and the agreement is not a selfexecuting treaty), Congress has provided for such immunity by separate legislation. If the court of appeals

were correct that the IOIA grants international organizations absolute immunity from suit, such legislation

would be redundant.

Moreover, in those and other circumstances, the

State Department has made clear its view that the jurisdictional immunity afforded by the IOIA tracks the

immunity afforded to foreign governments under the

FSIA. This longstanding interpretation—evinced by

actions of both political Branches—deserves deference.

C. Adopting the court of appeals’ interpretation of

Section 288a(b) would present practical difficulties.

First, courts would have to decide whether the provision

incorporates the substantive rules of foreign sovereign

immunity applicable in 1945 or the procedural ones.

The court of appeals and respondent have both assumed

that Section 288a(b) incorporates only the then-existing

substantive standards, but neither explains why that

would be so. And even if only the substantive standards

were incorporated, there could remain some uncertainty in determining the contours. Although the State

Department afforded virtually absolute immunity from

suit to foreign governments in 1945, there was some uncertainty regarding the immunity of state-owned merchant vessels and companies engaged in commercial activity. Under the court of appeals’ view, courts would

have to determine any disputed metes and bounds of

13

foreign sovereign immunity, as they existed in the policies of the State Department and in federal courts some

70 years in the past—and perhaps in circumstances that

neither ever faced or that did not closely fit the situation

of a particular international organization.

Respondent raises policy concerns about an interpretation of Section 288a(b) under which an international organization’s immunity would conform to that of

a foreign state at the time of suit. Those concerns are

misplaced and cannot justify disregarding the plain text

of the statute. In any event, the legislative history of

the IOIA is replete with statements reflecting a commitment to put international organizations’ immunity

on par with that afforded to foreign sovereigns. That

the IOIA leaves respondent subject to suit in similar

circumstances as foreign governments today is consistent with Congress’s judgment in Section 288a(b).

ARGUMENT

THE INTERNATIONAL ORGANIZATIONS IMMUNITIES

ACT AFFORDS DESIGNATED INTERNATIONAL ORGANIZATIONS THE SAME JURISDICTIONAL IMMUNITY AS IS

CURRENTLY ENJOYED BY FOREIGN STATES

The IOIA provides that international organizations

“enjoy the same immunity from suit * * * as is enjoyed

by foreign governments.” 22 U.S.C. 288a(b). The text,

structure, and history of the Act, as well as Executive

Branch practice and related congressional enactments,

all confirm that the jurisdictional immunity afforded by

the Act is the jurisdictional immunity currently enjoyed

by foreign states and as it might be modified over time,

not as it existed when the Act was enacted in 1945. The

court of appeals’ contrary determination is incorrect,

would present practical difficulties for federal courts,

14

and is not justified by the policy concerns that respondents invoke.

A. The Text, Structure, And History Of The IOIA Support

Application Of The Same Immunity Enjoyed By Foreign

States To International Organizations

1. In construing Section 288a(b), this Court should

“begin, as always, with the text of the statute.” Permanent Mission of India to the U.N. v. City of N.Y.,

551 U.S. 193, 197 (2007). Section 288a(b) provides

simply that “[i]nternational organizations * * * shall

enjoy the same immunity from suit and every form of

judicial process as is enjoyed by foreign governments.”

22 U.S.C. 288a(b). On its face, the plain text of this provision strongly suggests that the Act affords international organizations the immunity that is enjoyed by

foreign governments today, not the immunity enjoyed

by foreign governments in 1945.

a. To begin, Congress’s use of the present tense—

“as is enjoyed”—supports that interpretation. This

Court has “frequently looked to Congress’ choice of

verb tense to ascertain a statute’s temporal reach.”

Carr v. United States, 560 U.S. 438, 448 (2010); see, e.g.,

Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2003)

(“[T]he plain text of this provision, because it is expressed in the present tense, requires that instrumentality status [under the FSIA] be determined at the

time suit is filed.”); United States v. Wilson, 503 U.S.

329, 333 (1992) (“Congress’ use of a verb tense is significant in construing statutes.”); Barrett v. United States,

423 U.S. 212, 216 (1976) (reasoning that Congress’s use

of the present perfect tense denoted “an act that has

been completed” by the time of the offense “without ambiguity”). Here, because Section 288a employs the present tense to make the comparison to foreign sovereign

15

immunity, the statute is most naturally read to refer to

the immunity granted to foreign sovereigns at the time

that the statute is applied, not some 70 years in the past.

“Congress could have phrased its requirement in language that looked to the past”—here, by referring to a

foreign government’s immunity on the IOIA’s enactment date—“but it did not choose this readily available

option.” Gwaltney of Smithfield, Ltd. v. Chesapeake

Bay Found., Inc., 484 U.S. 49, 57 (1987). “[R]espect for

Congress’s prerogatives as policymaker means carefully attending to the words it chose rather than replacing them with others of [the Court’s] own.” Murphy v.

Smith, 138 S. Ct. 784, 788 (2018).

b. Congress’s choice of words is particularly instructive here, in light of background principles of statutory

interpretation for references of this sort. As one prominent treatise explains, “[w]hen a statute adopts the

general law on a given subject, the reference is construed to mean that the law is as it reads thereafter at

any given time including amendments subsequent to

the time of adoption.” 2B Norman J. Singer, et al.,

Sutherland Statutes & Statutory Construction § 51:7

(7th ed. rev. 2012) (citation omitted); see, e.g., El Encanto, Inc. v. Hatch Chile Co., 825 F.3d 1161, 1164 (10th

Cir. 2016); United States v. Rodriguez-Rodriguez, 863

F.2d 830, 831 (11th Cir. 1989); cf. Antonin Scalia & Bryan

A. Garner, Reading Law: The Interpretation of Legal

Texts § 7, at 90 (2012) (“A legal text referring to a statutorily defined term is understood to have a silent gloss, ‘as

the definition may be amended from time to time.’ ”).

This proposition well pre-dates the IOIA’s enactment. See 2 J.G. Sutherland, Sutherland Statutes &

Statutory Construction § 405, at 789 (John Lewis ed.

1904) (citing, e.g., Culver v. People, 43 N.E. 812, 814 (Ill.

16

1896)). And it reaffirms the most natural reading of the

text. See Gaston v. Lamkin, 21 S.W. 1100, 1103 (Mo.

1893) (describing the typical statute to which this principle applies as one that refers “generally to the established law, by some such expression as ‘the same as is

provided for by law’ in given cases”) (citation omitted).

2. This interpretation of Section 288a(b) is further

supported by the structure of the IOIA. See K Mart

Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (“In ascertaining the plain meaning of the statute, the court

must look to the particular statutory language at issue,

as well as the language and design of the statute as a

whole.”).

While Congress defined some privileges and immunities of international organizations and their officers

and employees by reference to the immunity of foreign

governments, it defined other privileges and immunities under a specific substantive standard. Compare

22 U.S.C. 288a(b) and (d), 288d, with 22 U.S.C. 288a(c),

288c, and 288d(b); see pp. 2-4, supra. This distinction

suggests that, if Congress had intended to adopt a particular fixed standard for international organizations’

immunity from suit, it would have done so expressly.

See Sebelius v. Cloer, 133 S. Ct. 1886, 1894 (2013)

(“[W]here Congress includes particular language in one

section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or

exclusion.”) (citation omitted).

That is especially so here, given that in the international community at the time of the IOIA’s enactment,

there were “two conflicting concepts of sovereign immunity, each widely held and firmly established.” Tate

Letter, 425 U.S. at 711. Although the State Department

17

still subscribed to the absolute theory of immunity in

1945, international consensus had been trending towards the restrictive theory. Id. at 712-713. And, when

the State Department formally adopted the restrictive

theory just seven years later, it explained that it had

been considering the change “for some time.” Id. at

711; pp. 4-6, supra; see Leo Sheep Co. v. United States,

440 U.S. 668, 669 (1979) (“[C]ourts, in construing a statute, may with propriety recur to the history of the times

when it was passed * * * to ascertain the reason as well

as the meaning of particular provisions in it.”) (citation

omitted).

In fact, in suits filed not directly against foreign sovereigns, but instead in in rem suits against foreign

state-owned merchant vessels, the State Department

by 1945 had declined to recognize immunity. The Pesaro, for example, was an admiralty suit brought

against an Italian state-owned vessel operated by employees of a government ministry “engaged in commercial trade carrying passengers and goods for hire.”

277 F. 473, 473-474 (S.D.N.Y. 1921). The State Department informed the court that “government-owned merchant vessels” or privately owned vessels requisitioned

by foreign states and “employed in commerce” are not

“entitled to the immunities accorded public vessels of

war.” Id. at 479 n.3; 3 see 2 Green Haywood Hackworth,

Digest of International Law § 173, at 438-439 (1941) (reproducing letter from Fred K. Nielsen, Solicitor for Department of State, to Julian W. Mack, U.S. District

Judge (Aug. 2, 1921)); see also id. at 423-465 (discussing

This Court subsequently recognized immunity for the vessel,

however, despite the State Department’s decision not to do so. See

Berizzi Bros. Co. v. Steamship Pesaro, 271 U.S. 562, 574 (1926).

3

18

State Department practice between 1914 and 1938 concerning immunity of state-owned merchant vessels).

Then, just months before Congress enacted the

IOIA, this Court deferred to the State Department’s decision to refrain from suggesting immunity for a vessel

that was owned by the Republic of Mexico, but in the

possession of a private corporation that had contracted

with Mexico to use the vessel for commercial purposes,

with a share of the profits paid to Mexico. Republic of

Mexico v. Hoffman, 324 U.S. 30, 34 (1945). The State

Department “certified that it recognize[d]” Mexico’s

ownership, but “refrained from certifying that it allow[ed] the immunity.” Id. at 36. Relying heavily on

the State Department’s statement, the Court held that

the suit could proceed. Id. at 38; see ibid. (“[I]t is the

duty of the courts, in a matter so intimately associated

with our foreign policy and which may profoundly affect

it, not to enlarge an immunity to an extent which the

government, although often asked, has not seen fit to

recognize.”). 4

When the State Department adopted the restrictive

theory in 1952, it noted “the importance played by cases

involving public vessels in the field of sovereign immunity.” Tate Letter, 425 U.S. at 713; see, e.g., Verlinden

B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486

(1983) (noting that “[a]lthough the narrow holding

of The Schooner Exchange [v. McFaddon, 11 U.S.

(7 Cranch) 116 (1812)] was only that the courts of the

United States lack jurisdiction over an armed ship of a

foreign state found in our port, that opinion came to be

regarded as extending virtually absolute immunity to

The Court in Hoffman criticized the Court’s failure in Pesaro to

consider that “the political branch of the government” had declined

to recognize immunity in that suit. 324 U.S. at 35 n.1.

4

19

foreign sovereigns”). In light of the State Department’s

own practice in such cases leading up to enactment of

the IOIA, developments in foreign sovereign immunity

law could be expected. Congress therefore would have

had reason to directly enact a standard of absolute immunity for international organizations, if that is what it

sought to afford regardless of any future developments

in the law.

3. Finally, the drafting history of the IOIA also supports an interpretation of Section 288a(b) that ties an

international organization’s jurisdictional immunity to

that accorded foreign states at the time of suit.

a. As originally passed by the House of Representatives, what is now Section 288a(b) expressly defined the

immunity standard for international organizations. The

bill provided: “International organizations, their property and their assets, wherever located, and by whomsoever held, shall enjoy immunity from suit and every

form of judicial process [unless waived].” H.R. 4489,

79th Cong. § 2(b) (passed by the House of Representatives, Nov. 20, 1945); see 91 Cong. Rec. 10,867 (1945). If

the House’s version had been enacted, there could be no

question that such organizations would be entitled to

absolute immunity from suit, regardless of any departure from such immunity for foreign governments. But,

of course, that did not occur. Instead, the Senate amended Section 288a(b), stripping the grant of absolute immunity and replacing it with a reference to “the same

immunity * * * as is enjoyed by foreign governments.”

H.R. 4489, 79th Cong. § 2(b) (passed by the Senate, Dec.

20, 1945); see 91 Cong. Rec. 12,432 (1945). The House

accepted the Senate amendment without objection.

91 Cong. Rec. 12,532 (1945).

20

“Few principles of statutory construction are more

compelling than the proposition that Congress does not

intend sub silentio to enact statutory language that it

has earlier discarded in favor of other language.” INS

v. Cardoza-Fonseca, 480 U.S. 421, 442–443 (1987); accord Chickasaw Nation v. United States, 534 U.S. 84,

93 (2001). There is no sound basis for departing from

that principle here.

b. Indeed, other aspects of the legislative history

confirm the significance of that change. By contrast to

Section 288a(b), the Senate left unchanged other provisions that expressly define certain privileges and immunities. Compare H.R. 4489, 79th Cong. §§ 2(c), 3, 6,

and 7(b) (passed by the House, Nov. 20 1945), with IOIA

§§ 2(c), 3, 6, and 7(b), 59 Stat. 669, 671, 672; see Pet. App.

14a-15a (Pillard, J., concurring) (noting comparison).

The Senate Report explained that, “[i]n general,” the

amended bill would provide “privileges and immunities

* * * similar to those granted by the United States to

foreign governments and their officials,” except that, in

some circumstances, it would confer “somewhat more

limited” protections. Senate Report 3. The examples of

the more limited privileges and immunities identified by

the Senate Report are those for which Congress expressly identified the applicable standard. Ibid.

The Senate Report thus reflects Congress’s intent

that international organizations’ immunity track the immunity of foreign states, except where Congress specified a lower standard. See also 91 Cong. Rec. at 12,531

(explaining that “all of th[e Senate’s] amendments limited provisions that were unanimously passed by the

House”). Nothing in the legislative history suggests that

Congress intended for international organizations to have

21

greater immunity than that enjoyed by foreign states, as

would be the case under the court of appeals’ view.

4. Despite the text, structure, and history of Section

288a(b), the court of appeals reiterated its conclusion

from Atkinson v. Inter-American Development Bank,

156 F.3d 1335 (1998), that Section 288a grants international organizations “complete immunity” from suit,

“unless it is waived or the President intervene[s].” Pet.

App. 6a. For that conclusion, the Atkinson court relied

on two observations, neither of which supports its interpretation of Section 288a(b). See 156 F.3d at 1341.

a. First, the Atkinson court reasoned that, in authorizing the President to “modify, condition, limit, and

even revoke” what the court believed was “the otherwise absolute immunity of a designated organization,”

Congress created “an explicit mechanism for monitoring the immunities of designated international organizations.” 156 F.3d at 1341 (citing 22 U.S.C. 288). According to the court, Congress’s choice “to delegate to

the President the responsibility for updating the immunities of international organizations in the face of

changing circumstances” is incompatible with the view

that Congress intended international organizations’ immunity to track developments in foreign sovereign immunity. Ibid. The court of appeals erred.

The IOIA authorizes the President to restrict the immunities provided to international organizations in two

ways: (1) it gives the President authority to “revoke the

designation of any international organization” if the

President determines that the international organization has “abuse[d]” the privileges, exemptions, or immunities conferred by the IOIA or “for any other reason”; and (2) it permits the President “to withhold or

withdraw from any [international] organization or its

22

officers or employees any of the privileges, exemptions,

and immunities provided for” by the IOIA, or to “condition or limit” such protections, “in the light of the functions performed by any such international organization.” 22 U.S.C. 288.

The statutory authority to revoke a specific organization’s status for abuse or other reason does not address the immunity standard applicable to international

organizations generally. And the authority to modify

the immunities afforded to “any such organizations or

its officers or employees,” “in light of the functions performed by any such organization,” is not inconsistent

with the prospect that the immunity afforded international organizations, as a class, may be altered through

other means. As Judge Pillard observed (Pet. App.

13a), the President’s authority under Section 288 is

most naturally read as focusing on the need for discretion to adjust a specific organization’s immunity, if the

extension of the full immunities provided by the statute

would be inappropriate in light of the specific purposes

of the organization. Indeed, that is how the President

has exercised his Section 288 authority in the past. 5 But

assuming that Section 288 would also permit the President to modify certain immunities afforded to international organizations on a more categorical basis, the

provision’s focus on the functions performed and immunities enjoyed by specific organizations does not suggest that Section 288 was intended to exclude all other

See, e.g., EO 12,425, 48 Fed. Reg. 28,069 (1983) (recognizing the

International Criminal Police Organization as an international organization under the IOIA, but limiting the privileges and immunities conferred by that designation); EO 11,718, 38 Fed. Reg. 12,797

(1973) (same for the International Telecommunications Satellite Organization).

5

23

means—including future legislation—of broadly altering the immunity principles applicable to foreign governments and therefore to international organizations

generally.

b. Second, the Atkinson court found support for its

reading of Section 288a(b) in a passage from the Senate

Report observing that the authority given to the President in Section 288 would permit “the adjustment or

limitation of the privileges in the event that any international organization should engage, for example, in activities of a commercial nature.” 156 F.3d at 1341 (quoting Senate Report 2). In the court’s view, that reference

indicated that the “concerns that motivated the State

Department to adopt the restrictive immunity approach” in the Tate Letter “(and Congress to codify

those principles in the FSIA in 1976) were apparently

taken into account by the 1945 Congress.” Ibid.

The court’s reading of the legislative history, however, is mistaken. The Senate Report was responding

to a concern that particular organizations might abuse

the immunities provided by the bill. As Representative

Robertson explained, the amendment ensured that, “if

some organization starts functioning here and goes beyond the scope for which it was created, let us say [it]

starts into business over here,” Section 288 would allow

the President to appropriately respond. 91 Cong. Rec.

at 12,530; see ibid. (noting the “very hypothetical case”

that a foreign representative to the United Nations

“would open up a shipping business”); see also 91 Cong.

Rec. at 12,432 (explaining that the Senate’s amendments, including authorizing the President to withdraw

immunities, were for the “purpose of safeguarding

against the possibility of abuse of privilege”). The legislative history does not suggest that Section 288a was

24

intended to lock in the scope of immunity that organizations received as a general matter.

Moreover, even if Congress did expect Section 288 to

provide the President a mechanism for adjusting the

privileges and immunities of all international organizations in the event such organizations began to be formed

with the purpose of participating in commercial activities, that would not support the court of appeals’ interpretation of Section 288a(b). As discussed above, there

is no indication from the text or legislative history that

Congress intended Section 288 to provide the sole

mechanism for addressing such developments. In any

event, preventing foreign sovereigns from claiming immunity for commercial activities was not the only motivation for adopting the restrictive theory. See Tate Letter, 425 U.S. at 714 (noting that the restrictive theory

was most consistent with the United States’ “subjecting

itself to suit in [U.S.] courts in both contract and tort”);

28 U.S.C. 1605(a)(1)-(6) (providing exceptions to jurisdictional immunity unrelated to commercial activities,

e.g., for certain domestic torts).

B. The Conduct Of The Political Branches Following

Enactment Of The IOIA Supports Affording International Organizations The Jurisdictional Immunity

Currently Enjoyed By Foreign Sovereigns

The conduct of the Executive Branch under the IOIA

and subsequent congressional enactments further support the view that the standard set out in Section

288a(b) follows changes in foreign sovereign immunity

law. See Crosby v. National Foreign Trade Council,

530 U.S. 363, 385-386 (2000) (while this Court “do[es]

not unquestioningly defer to the legal judgments expressed in Executive Branch statements when” inter-

25

preting a federal statute, it has “consistently acknowledged that the ‘nuances’ of ‘the foreign policy of the

United States . . . are much more the province of the

Executive Branch and Congress than of this Court’ ”)

(citation omitted).

1. The cooperative process followed by the Executive Branch and Congress in recognizing immunity for

international organizations demonstrates that the political Branches have long followed this interpretation of

the immunities afforded by Section 288a(b). The privileges and immunities in the IOIA are typically provided

to international organizations through a three-part process. The Executive Branch enters into an agreement

with one or more foreign governments to form an international organization. See, e.g., Articles of Agreement

of the International Development Association, entered

into force, Sept. 24, 1960, 11 U.S.T. 2284, T.I.A.S. No.

4607. Congress (or the Senate through its consent to a

treaty) authorizes participation by the United States in

the international organization. See, e.g., 22 U.S.C. 284

(authorizing the President “to accept membership” in

the International Development Association). And the

President issues an Executive Order recognizing the organization as an international organization within the

meaning of the IOIA, entitled to the protections that

Act affords. See, e.g., EO 11,966, 42 Fed. Reg. 4331

(1977) (designating the International Development Association as a “public international organization entitled

to enjoy the privileges, exemptions, and immunities

conferred by the [IOIA]”).

Some agreements creating international organizations, however, require the member states to afford the

organization specific immunities beyond those expressly provided by the IOIA. The agreement establishing

26

the World Trade Organization (WTO), for example, requires member states to afford it absolute immunity

from suit in their courts, unless waived by the WTO.

See Marrakesh Agreement Establishing the World

Trade Organization (WTO Agreement), art. VIII(4), entered into force Jan. 1, 1995, 1867 U.N.T.S. 154 (requiring members to provide the privileges and immunities

provided by the Convention on the Privileges and Immunities of the Specialized Agencies (Specialized Agencies Convention), entered into force Dec. 2, 1948,

33 U.N.T.S. 261); Specialized Agencies Convention, art.

III, § 4 (affording UN specialized agencies “immunity

from every form of legal process,” unless waived).

For such organizations, mere designation under the

IOIA would not fulfill the United States’ international

commitment precisely because the IOIA does not confer

absolute immunity from suit. In those circumstances,

where the agreement was not a self-executing treaty, 6

Congress has either (1) authorized the President to implement the immunity provisions in the applicable

agreement, see, e.g., 19 U.S.C. 3511(b) (authorizing the

President to implement the WTO Agreement’s immunity provisions); or (2) provided such immunity by separate legislation, see, e.g., 22 U.S.C. 286h (giving “full

force and effect in the United States” to immunity provisions of the Articles of Agreement of the IMF, entered

into force Dec. 27, 1945, 60 Stat. 1401, 2 U.N.T.S. 39). 7

6

A self-executing treaty is equivalent to an Act of Congress and

requires no legislation to make its provisions enforceable. See Medellin v. Texas, 552 U.S. 491, 505 (2008).

7

Notably, the IFC Act gives “full force and effect in the United

States,” 22 U.S.C. 282g, to the section of the IFC’s Articles of

Agreement establishing the “position of the corporation with regard

to judicial process,” art. VI, § 3 (capitalization altered). But unlike

27

Such legislation ensures that, notwithstanding the

United States’ adoption of the restrictive theory or any

future developments in foreign sovereign immunity, the

United States fulfills its obligations to the international

organization. But, under the court of appeals’ interpretation of Section 288a, such legislation would be redundant.

2. The provision of privileges and immunities for the

Organization of American States (OAS) is similarly instructive. The OAS was formed in 1951 in its current

structure through a multilateral treaty that provided

that the organization would enjoy “such legal capacity,

privileges and immunities as are necessary for the exercise of its functions and the accomplishment of its purposes.” Charter of the Organization of American States,

art. 103, entered into force, Dec. 13, 1951, 2 U.S.T. 2394,

T.I.A.S. No. 2361. After the Charter was ratified by the

United States, the President designated the OAS as an

international organization “entitled to enjoy the privileges, exemptions, and immunities conferred by the

[IOIA].” EO 10,533, 19 Fed. Reg. 3289 (1954).

Forty years later, the United States agreed to afford

the OAS more extensive immunity. In 1994, the Senate

gave its advice and consent to the ratification of the

Headquarters Agreement Between the Government of

the United States of America and the Organization

of American States, signed at Washington May 14,

1992, S. Treaty Doc. No. 40, 102d Cong., 2d Sess. (1992);

the agreement creating the IMF, the IFC’s Articles of Agreement

do not require absolute immunity from suit. Compare IMF Articles

of Agreement, art. IX, § 3 (stating that the IMF shall “enjoy immunity from every form of judicial process,” unless waived), with IFC

Articles of Agreement, art. VI, § 3 (stating that “[a]ctions may be

brought against the Corporation” in courts of member states in

which the IFC has a specified connection).

28

140 Cong. Rec. 28,361 (1994). In contrast to the OAS

Charter, the Headquarters Agreement provides the

OAS with absolute immunity from suit. See art. IV, § 1

(“The Organization shall enjoy immunity from suit and

every form of judicial process [absent waiver].”).

Because the Headquarters Agreement was selfexecuting, see S. Treaty Doc. No. 40, at III, no Act of

Congress was needed to afford the OAS the absolute

immunity it now required. But in submitting the Headquarters Agreement to the President, the State Department made clear that by affording the OAS “full immunity from judicial process,” the agreement went “beyond

the usual United States practice of affording restrictive

immunity,” “[i]n exchange” for requiring the organization to “ ‘make provision for appropriate modes of settlement of those disputes for which jurisdiction would

exist against a foreign government under the Foreign

Sovereign Immunities Act.’ ” Id. at VI.

3. Indeed, the State Department has repeatedly expressed the same view about the scope of jurisdictional

immunity afforded to international organizations under

the IOIA since the United States’ adoption of the restrictive theory of foreign sovereign immunity. See

Letter from Roberts B. Owen, Legal Adviser, to Leroy

D. Clark, Gen. Counsel, Equal Emp’t Opportunity

Comm’n 2 (June 24, 1980) (“By virtue of the FSIA, and

unless otherwise specified in their constitutive agreements, international organizations are now subject to

the jurisdiction of our courts in respect of their commercial activities, while retaining immunity for their acts of

a public character.”); Letter from Detlev F. Vagts, Office

of the Legal Adviser, to Robert M. Carswell, Jr., OAS 2

(Mar. 24, 1977) (Vagts Letter) (stating that the IOIA

29

“links” the jurisdictional immunity of international organizations and that of foreign sovereigns), available at

D. Ct. Doc. No. 22-7, at 41-42 (Sept. 18, 2015); Pet. Br. 89 (collecting additional Executive Branch statements). 8

This longstanding interpretation—evinced by actions

of both political Branches—of the privileges and immunities afforded by the IOIA in order to fulfill the United

States’ international obligations deserves deference.

C. The Court of Appeals’ View Of International Organization Immunity Would Present Practical Problems And

Is Not Required By Respondent’s Policy Concerns

Adopting the court of appeals’ view of the jurisdictional immunities afforded international organizations

under Section 288a(b) would present practical difficulties and is not justified by the policy concerns asserted

by respondent.

1. As an initial matter, if Section 288a(b) were interpreted to incorporate the law of foreign sovereign immunity as it existed in 1945, courts would then need to

decide whether Congress intended to incorporate the

substantive rules of foreign sovereign immunity applicable in 1945 or the procedural ones. As noted above, in

1945, federal courts followed a “two-step procedure” for

determining the immunity of a foreign state from a particular suit. Samantar v. Yousuf, 560 U.S. 305, 311

(2010). The foreign state first could ask the State Department for a “suggestion of immunity.” Ibid. (citation

In a 2006 brief filed in the Second Circuit, the United States cited

Atkinson for the proposition that the IOIA provides absolute immunity. U.S. Amicus Br. at 17 n.*, EM Ltd. v. Republic of Argentina, No.

06-403. The government’s brief did not contain any independent analysis of Section 288a or the Executive Branch’s historical practice under the IOIA, and does not reflect the United States’ longstanding

interpretation of the provision.

8

30

omitted). If the State Department obliged, “the district

court surrendered its jurisdiction.” Ibid. Otherwise,

the court would generally “decide for itself whether all

the requisites for such immunity existed,” applying the

“established policy” of the State Department. Id. at

311-312 (citation omitted).

The court of appeals and respondent have both assumed that, if Section 288a(b) incorporates foreign sovereign immunity law as it existed in 1945, it incorporates only the substantive standards—the then-“established policy,” Samantar, 560 U.S. at 312, of the State

Department—not the two-step procedure. See Atkinson, 156 F.3d at 1341; Br. in Opp. 14. But neither the

court nor respondent explains why that would be so. See

Vagts Letter 1 (indicating that the State Department initially filed suggestions of immunity for international organizations following the enactment of the IOIA).

Moreover, even if the static view of Section 288a(b)

would incorporate only the substantive standards that

prevailed in 1945, there could remain some uncertainty

in determining the contours. Section 288a(b) affords

“international organizations, their property and their

assets * * * the same immunity from suit and every

form of judicial process as is enjoyed by foreign governments.” 22 U.S.C. 288a. Although the State Department generally afforded “virtually absolute immunity”

from suit to foreign governments in 1945, Verlinden,

461 U.S. at 486, there was some uncertainty regarding

the immunity of state-owned merchant vessels. Compare The Pesaro, 277 F. at 479 n.3 (noting the State Department’s view that no immunity should be provided

“government-owned merchant vessels * * * employed

in commerce”), with Berizzi Bros. Co. v. Steamship Pesaro, 271 U.S. 562, 570 (1926) (affording immunity to the

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same ship, despite the State Department’s views); cf.

Hoffman, 324 U.S. at 35 n.1 (criticizing without expressly overruling Berizzi Bros.). And the State Department had also expressed the view that “agencies of

foreign governments engaged in ordinary commercial

transactions in the United States enjoyed no privileges

or immunities not appertaining to other foreign corporations, agencies, or individuals doing business here.”

United States v. Deutsches Kalisyndikat Gesellschaft,

31 F.2d 199, 200 (S.D.N.Y. 1929).

Under the court of appeals’ view, courts would therefore have to determine any disputed metes and bounds

of foreign sovereign immunity, as they existed in the

policies of the State Department and in federal courts

some 70 years in the past—and perhaps in circumstances that neither ever faced or that did not closely fit

the situation of a particular international organization.

Cf. Republic of Austria v. Altmann, 541 U.S. 677, 699

(2004) (refusing to adopt an interpretation of the FSIA

that would require courts, in some cases, “to follow the

same ambiguous and politically charged standards that

the FSIA replaced”) (internal quotation marks and citation omitted).

2. In their response to the certiorari petition, respondent raised policy concerns about an interpretation

of Section 288a(b) under which an international organization’s immunity would conform to that of a foreign

state at the time of suit. “The role of this Court,” however, “is to apply the statute as it is written,” regardless

whether it thinks “some other approach might ‘accor[d]

with good policy.’ ” Burrage v. United States, 571 U.S.

204, 218 (2014) (citation omitted; brackets in original).

In any event, respondent’s concerns are misplaced.

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a. Respondent contends that such an interpretation

would be “inconsistent with the principles animating international-organization immunity,” which, respondent

suggests, include that an individual member “ ‘ought not

be able to exercise power, through its national courts,

over the execution of the Organization’s functions’ ” that

are “ ‘determined * * * collectively.’ ” Br. in Opp. 22

(citation omitted). But when member states determine

that the functions of an international organization require a particular level of immunity, they are free to

specify as much in the agreement establishing the organization—and they have done so. See pp. 25-28,

supra; see also, e.g., Agreement Establishing the Asian

Development Bank, art. 50, entered into force Aug. 22,

1996, 17 U.S.T. 1418, T.I.A.S. No. 6103 (providing Asian

Development Bank “immunity from every form of legal

process, except in cases arising out of or in connexion

with the exercise of its powers to borrow money, to

guarantee obligations, or to buy and sell or underwrite

the sale of securities”); 22 U.S.C. 285g (giving “full force

and effect” to Article 50 “in the United States”). The

scope of the immunity afforded by the IOIA will have no

effect on the United States’ fulfillment of these international obligations. See Bzrak v. United Nations, 597

F.3d 107, 112 (2d Cir.) (declining to determine the scope

of immunity afforded the United Nations under the

IOIA, because the Convention on Privileges and Immunities of the United Nations, entered into force Apr.

29, 1970, 21 U.S.T. 1418, T.I.A.S. No. 6900, directly

granted the UN absolute immunity), cert. denied, 562

U.S. 948 (2010).

b. Respondent also expresses concern (Br. in Opp.

22) that, under the restrictive theory of immunity,

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“nearly all of the[] activities” of some international organizations might be subject to lawsuits in U.S. courts.

But the FSIA’s commercial-activity exception is not an

authorization of just any commercial suit. Rather, it imposes a number of requirements including, for example,

that the action be “based upon a commercial activity

carried on in the United States,” 28 U.S.C. 1605(a)(2)

(emphasis added). This Court has construed that language to permit suit only when the “ ‘particular conduct’

that constitutes the ‘gravamen’ of the suit” is commercial activity occurring in the United States. OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390, 396 (2015) (citation omitted). When the gravamen of a complaint is

conduct that was either not of a commercial nature or

occurred abroad, the commercial-activity exception

does not apply, even if the suit is otherwise related to

the defendant’s domestic commercial activities. Id. at

396-397. Incorporating the FSIA standard of immunity

for international organizations is therefore unlikely to

open the floodgates of litigation, even against international organizations, like the IFC, that “focus on financial transactions.” Br. in Opp. 22.

Moreover, international organizations can further

reduce their exposure to litigation in other ways by, for

example, clarifying whether commercial agreements

are intended to create third-party-beneficiary rights.

Cf. Pet. App. 9a & n.4 (noting that petitioners raise a

“third party beneficiary claim” based on environmental

and social risks provisions in the loan agreement).

Other defenses, such as forum non conveniens, may

also be available. See Piper Aircraft Co. v. Reyno,

454 U.S. 235 (1981).

In any event, there is no indication that, when Congress enacted the IOIA, such policy concerns led it to

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provide international organizations greater immunity

from suit than that conferred on foreign states. To the

contrary, the legislative history is replete with statements reflecting a commitment to put international organizations’ immunity on par with that afforded to foreign sovereigns. See, e.g., Senate Report 1 (“The basic

purpose of this title is to confer upon international organizations * * * privileges and immunities of a governmental nature.”); id. at 2 (“[I]n cases where th[e]

Government associates itself with one or more foreign

governments in an international organization, there exists at the present time no law * * * extend[ing] privileges of a governmental character.”); id. at 4 (Section

288a extends to international organizations the privileges and immunities “accorded foreign governments

under similar circumstances”). And Congress enacted

text precisely crafted to that purpose. Foreign governments engaged in commercial activities within the

United States are subject to suit in U.S. courts.

28 U.S.C. 1605(a)(2). That the IOIA leaves respondent

also subject to suit in similar circumstances is consistent with Congress’s judgment in Section 288a(b).

35

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

JENNIFER G. NEWSTEAD

Legal Adviser

Department of State

JULY 2018

NOEL J. FRANCISCO

Solicitor General

EDWIN S. KNEEDLER

Deputy Solicitor General

JONATHAN Y. ELLIS

Assistant to the Solicitor

General

SHARON SWINGLE

LEWIS S. YELIN

Attorneys