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(Slip Opinion) OCTOBER TERM, 2018
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Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
JAM ET AL. v. INTERNATIONAL FINANCE CORP.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 17–1011. Argued October 31, 2018—Decided February 27, 2019
In 1945, Congress passed the International Organizations Immunities
Act (IOIA), which, among other things, grants international organizations
the “same immunity from suit ... as is enjoyed by foreign
governments.” 22 U. S. C. §288a(b). At that time, foreign governments
were entitled to virtually absolute immunity as a matter of international
grace and comity. In 1952, the State Department adopted
a more restrictive theory of foreign sovereign immunity, which
Congress subsequently codified in the Foreign Sovereign Immunities
Act (FSIA), 28 U. S. C. §1602. The FSIA gives foreign sovereign governments
presumptive immunity from suit, §1604, subject to several
statutory exceptions, including, as relevant here, an exception for actions
based on commercial activity with a sufficient nexus with the
United States, §1605(a)(2).
Respondent International Finance Corporation (IFC), an IOIA international
organization, entered into a loan agreement with Coastal
Gujarat Power Limited, a company based in India, to finance the construction
of a coal-fired power plant in Gujarat. Petitioners sued the
IFC, claiming that pollution from the plant harmed the surrounding
air, land, and water. The District Court, however, held that the IFC
was immune from suit because it enjoyed the virtually absolute immunity
that foreign governments enjoyed when the IOIA was enacted.
The D. C. Circuit affirmed in light of its decision in Atkinson v.
Inter-American Development Bank, 156 F. 3d 1335.
Held: The IOIA affords international organizations the same immunity
from suit that foreign governments enjoy today under the FSIA.
Pp. 6–15.
(a) The IOIA “same as” formulation is best understood as making
international organization immunity and foreign sovereign immunity
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continuously equivalent. The IOIA is thus like other statutes that
use similar or identical language to place two groups on equal footing.
See, e.g., Civil Rights Act of 1866, 42 U. S. C. §§1981(a), 1982;
Federal Tort Claims Act, 28 U. S. C. §2674. Whatever the ultimate
purpose of international organization immunity may be, the immediate
purpose of the IOIA immunity provision is expressed in language
that Congress typically uses to make one thing continuously equivalent
to another. Pp. 6–9.
(b) That reading is confirmed by the “reference canon” of statutory
interpretation. When a statute refers to a general subject, the statute
adopts the law on that subject as it exists whenever a question
under the statute arises. In contrast, when a statute refers to another
statute by specific title, the referenced statute is adopted as it existed
when the referring statute was enacted, without any subsequent
amendments. Federal courts have often relied on the reference
canon to harmonize a statute with an external body of law that the
statute refers to generally. The IOIA’s reference to the immunity enjoyed
by foreign governments is to an external body of potentially
evolving law, not to a specific provision of another statute. Nor is it a
specific reference to a common law concept with a fixed meaning.
The phrase “immunity enjoyed by foreign governments” is not a term
of art with substantive content but rather a concept that can be given
scope and content only by reference to the rules governing foreign
sovereign immunity. Pp. 9–11.
(c) The D. C. Circuit relied upon Atkinson’s conclusion that the reference
canon’s probative force was outweighed by an IOIA provision
authorizing the President to alter the immunity of an international
organization. But the fact that the President has power to modify
otherwise applicable immunity rules is perfectly compatible with the
notion that those rules might themselves change over time in light of
developments in the law governing foreign sovereign immunity. The
Atkinson court also did not consider the opinion of the State Department,
whose views in this area ordinarily receive “special attention,”
Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling
Co., 581 U. S. ___, ___, and which took the position that immunity
rules of the IOIA and the FSIA were linked following the FSIA’s enactment.
Pp. 11–13.
(d) The IFC contends that interpreting the IOIA immunity provision
to grant only restrictive immunity would defeat the purpose of
granting immunity in the first place, by subjecting international organizations
to suit under the commercial activity exception of the
FSIA for most or all of their core activities. This would be particularly
true with respect to international development banks, which use
the tools of commerce to achieve their objectives. Those concerns are
Cite as: 586 U. S. ____ (2019)
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Syllabus
inflated. The IOIA provides only default rules. An international organization’s
charter can always specify a different level of immunity,
and many do. Nor is it clear that the lending activity of all development
banks qualifies as commercial activity within the meaning of
the FSIA. But even if it does qualify as commercial, that does not
mean the organization is automatically subject to suit, since other
FSIA requirements must also be met, see, e.g., 28 U. S. C. §§1603,
1605(a)(2). Pp. 13–15.
860 F. 3d 703, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS,
GINSBURG, ALITO, SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined.
BREYER, J., filed a dissenting opinion. KAVANAUGH, J., took no part in
the consideration or decision of the case.
Cite as: 586 U. S. ____ (2019)
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Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
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
[February 27, 2019]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
The International Organizations Immunities Act of 1945
grants international organizations such as the World
Bank and the World Health Organization the “same immunity
from suit . . . as is enjoyed by foreign governments.”
22 U. S. C. §288a(b). At the time the IOIA was
enacted, foreign governments enjoyed virtually absolute
immunity from suit. Today that immunity is more limited.
Most significantly, foreign governments are not
immune from actions based upon certain kinds of commercial
activity in which they engage. This case requires us to
determine whether the IOIA grants international organizations
the virtually absolute immunity foreign governments
enjoyed when the IOIA was enacted, or the more
limited immunity they enjoy today.
Respondent International Finance Corporation is an
international organization headquartered in the United
States. The IFC finances private-sector development
projects in poor and developing countries around the
world. About 10 years ago, the IFC financed the construc-
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tion of a power plant in Gujarat, India. Petitioners are
local farmers and fishermen and a small village. They
allege that the power plant has polluted the air, land, and
water in the surrounding area. Petitioners sued the IFC
for damages and injunctive relief in Federal District
Court, but the IFC claimed absolute immunity from suit.
Petitioners argued that the IFC was entitled under the
IOIA only to the limited or “restrictive” immunity that
foreign governments currently enjoy. We agree.
I
A
In the wake of World War II, the United States and
many of its allies joined together to establish a host of new
international organizations. Those organizations, which
included the United Nations, the International Monetary
Fund, and the World Bank, were designed to allow member
countries to collectively pursue goals such as stabilizing
the international economy, rebuilding war-torn nations,
and maintaining international peace and security.
Anticipating that those and other international organizations
would locate their headquarters in the United
States, Congress passed the International Organizations
Immunities Act of 1945, 59 Stat. 669. The Act grants
international organizations a set of privileges and immunities,
such as immunity from search and exemption from
property taxes. 22 U. S. C. §§288a(c), 288c.
The IOIA defines certain privileges and immunities by
reference to comparable privileges and immunities enjoyed
by foreign governments. For example, with respect to
customs duties and the treatment of official communications,
the Act grants international organizations the privileges
and immunities that are “accorded under similar
circumstances to foreign governments.” §288a(d). The
provision at issue in this case provides that international
organizations “shall enjoy the same immunity from suit
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and every form of judicial process as is enjoyed by foreign
governments.” §288a(b).
The IOIA authorizes the President to withhold, withdraw,
condition, or limit the privileges and immunities it
grants in light of the functions performed by any given
international organization. §288. Those privileges and
immunities can also be expanded or restricted by a particular
organization’s founding charter.
B
When the IOIA was enacted in 1945, courts looked to
the views of the Department of State in deciding whether
a given foreign government should be granted immunity
from a particular suit. If the Department submitted a
recommendation on immunity, courts deferred to the
recommendation. If the Department did not make a recommendation,
courts decided for themselves whether to
grant immunity, although they did so by reference to State
Department policy. Samantar v. Yousuf, 560 U. S. 305,
311–312 (2010).
Until 1952, the State Department adhered to the classical
theory of foreign sovereign immunity. According to
that theory, foreign governments are entitled to “virtually
absolute” immunity as a matter of international grace and
comity. At the time the IOIA was enacted, therefore, the
Department ordinarily requested, and courts ordinarily
granted, immunity in suits against foreign governments.
Ibid.; Verlinden B. V. v. Central Bank of Nigeria, 461 U. S.
480, 486 (1983). 1
In 1952, however, the State Department announced that
it would adopt the newer “restrictive” theory of foreign
——————
1
The immunity was “virtually” absolute because it was subject to
occasional exceptions for specific situations. In Republic of Mexico v.
Hoffman, 324 U. S. 30 (1945), for example, the State Department
declined to recommend, and the Court did not grant, immunity from
suit with respect to a ship that Mexico owned but did not possess.
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Opinion of the Court
sovereign immunity. Under that theory, foreign governments
are entitled to immunity only with respect to their
sovereign acts, not with respect to commercial acts. The
State Department explained that it was adopting the
restrictive theory because the “widespread and increasing
practice on the part of governments of engaging in commercial
activities” made it “necessary” to “enable persons
doing business with them to have their rights determined
in the courts.” Letter from Jack B. Tate, Acting Legal
Adviser, Dept. of State, to Acting Attorney General Philip
B. Perlman (May 19, 1952), reprinted in 26 Dept. State
Bull. 984–985 (1952).
In 1976, Congress passed the Foreign Sovereign Immunities
Act. The FSIA codified the restrictive theory of foreign
sovereign immunity but transferred “primary responsibility
for immunity determinations from the Executive to
the Judicial Branch.” Republic of Austria v. Altmann, 541
U. S. 677, 691 (2004); see 28 U. S. C. §1602. Under the
FSIA, foreign governments are presumptively immune
from suit. §1604. But a foreign government may be subject
to suit under one of several statutory exceptions.
Most pertinent here, a foreign government may be subject
to suit in connection with its commercial activity that has
a sufficient nexus with the United States. §1605(a)(2).
C
The International Finance Corporation is an international
development bank headquartered in Washington,
D. C. The IFC is designated as an international organization
under the IOIA. Exec. Order No. 10680, 3 CFR 86
(1957); see 22 U. S. C. §§282, 288. One hundred eightyfour
countries, including the United States, are members
of the IFC.
The IFC is charged with furthering economic development
“by encouraging the growth of productive private
enterprise in member countries, particularly in the less
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developed areas, thus supplementing the activities of ” the
World Bank. Articles of Agreement of the International
Finance Corporation, Art. I, Dec. 5, 1955, 7 U. S. T. 2193,
T. I. A. S. No. 3620. Whereas the World Bank primarily
provides loans and grants to developing countries for
public-sector projects, the IFC finances private-sector
development projects that cannot otherwise attract capital
on reasonable terms. See Art. I(i), ibid. In 2018, the IFC
provided some $23 billion in such financing.
The IFC expects its loan recipients to adhere to a set of
performance standards designed to “avoid, mitigate, and
manage risks and impacts” associated with development
projects. IFC Performance Standards on Environmental
and Social Sustainability, Jan. 1, 2012, p. 2, ¶1. Those
standards are usually more stringent than any established
by local law. The IFC includes the standards in its loan
agreements and enforces them through an internal review
process. Brief for Respondent 10.
In 2008, the IFC loaned $450 million to Coastal Gujarat
Power Limited, a company located in India. The loan
helped finance the construction of a coal-fired power plant
in the state of Gujarat. Under the terms of the loan
agreement, Coastal Gujarat was required to comply with
an environmental and social action plan designed to protect
areas around the plant from damage. The agreement
allowed the IFC to revoke financial support for the project
if Coastal Gujarat failed to abide by the terms of the
agreement.
The project did not go smoothly. According to the IFC’s
internal audit, Coastal Gujarat did not comply with the
environmental and social action plan in constructing and
operating the plant. The audit report criticized the IFC
for inadequately supervising the project.
In 2015, a group of farmers and fishermen who live near
the plant, as well as a local village, sued the IFC in the
United States District Court for the District of Columbia.
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Opinion of the Court
They claimed that pollution from the plant, such as coal
dust, ash, and water from the plant’s cooling system, had
destroyed or contaminated much of the surrounding air,
land, and water. Relying on the audit report, they asserted
several causes of action against the IFC, including negligence,
nuisance, trespass, and breach of contract. The
IFC maintained that it was immune from suit under the
IOIA and moved to dismiss for lack of subject matter
jurisdiction.
The District Court, applying D. C. Circuit precedent,
concluded that the IFC was immune from suit because the
IOIA grants international organizations the virtually
absolute immunity that foreign governments enjoyed
when the IOIA was enacted. 172 F. Supp. 3d 104, 108–
109 (DC 2016) (citing Atkinson v. Inter-American Development
Bank, 156 F. 3d 1335 (CADC 1998)). The D. C.
Circuit affirmed in light of its precedent. 860 F. 3d 703
(2017). Judge Pillard wrote separately to say that she
would have decided the question differently were she
writing on a clean slate. Id., at 708 (concurring opinion).
Judge Pillard explained that she thought the D. C. Circuit
“took a wrong turn” when it “read the IOIA to grant international
organizations a static, absolute immunity that is,
by now, not at all the same ‘as is enjoyed by foreign governments,’
but substantially broader.” Ibid. Judge Pillard
also noted that the Third Circuit had expressly declined to
follow the D. C. Circuit’s approach. See OSS Nokalva, Inc.
v. European Space Agency, 617 F. 3d 756 (CA3 2010).
We granted certiorari. 584 U. S. ___ (2018).
II
The IFC contends that the IOIA grants international
organizations the “same immunity” from suit that foreign
governments enjoyed in 1945. Petitioners argue that it
instead grants international organizations the “same
immunity” from suit that foreign governments enjoy to-
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day. We think petitioners have the better reading of the
statute.
A
The language of the IOIA more naturally lends itself to
petitioners’ reading. In granting international organizations
the “same immunity” from suit “as is enjoyed by
foreign governments,” the Act seems to continuously link
the immunity of international organizations to that of
foreign governments, so as to ensure ongoing parity between
the two. The statute could otherwise have simply
stated that international organizations “shall enjoy absolute
immunity from suit,” or specified some other fixed
level of immunity. Other provisions of the IOIA, such as
the one making the property and assets of international
organizations “immune from search,” use such noncomparative
language to define immunities in a static way. 22
U. S. C. §288a(c). Or the statute could have specified that
it was incorporating the law of foreign sovereign immunity
as it existed on a particular date. See, e.g., Energy Policy
Act of 1992, 30 U. S. C. §242(c)(1) (certain land patents
“shall provide for surface use to the same extent as is
provided under applicable law prior to October 24, 1992”).
Because the IOIA does neither of those things, we think
the “same as” formulation is best understood to make
international organization immunity and foreign sovereign
immunity continuously equivalent.
That reading finds support in other statutes that use
similar or identical language to place two groups on equal
footing. In the Civil Rights Act of 1866, for instance,
Congress established a rule of equal treatment for newly
freed slaves by giving them the “same right” to make and
enforce contracts and to buy and sell property “as is enjoyed
by white citizens.” 42 U. S. C. §§1981(a), 1982. That
provision is of course understood to guarantee continuous
equality between white and nonwhite citizens with respect
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to the rights in question. See Jones v. Alfred H. Mayer
Co., 392 U. S. 409, 427–430 (1968). Similarly, the Federal
Tort Claims Act states that the “United States shall be
liable” in tort “in the same manner and to the same extent
as a private individual under like circumstances.” 28
U. S. C. §2674. That provision is most naturally understood
to make the United States liable in the same way as
a private individual at any given time. See Richards v.
United States, 369 U. S. 1, 6–7 (1962). Such “same as”
provisions dot the statute books, and federal and state
courts commonly read them to mandate ongoing equal
treatment of two groups or objects. See, e.g., Adamson v.
Bowen, 855 F. 2d 668, 671–672 (CA10 1988) (statute making
United States liable for fees and expenses “to the same
extent that any other party would be liable under the
common law or under the terms of any statute” interpreted
to continuously tie liability of United States to that of
any other party); Kugler’s Appeal, 55 Pa. 123, 124–125
(1867) (statute making the procedure for dividing election
districts “the same as” the procedure for dividing townships
interpreted to continuously tie the former procedure
to the latter).
The IFC objects that the IOIA is different because the
purpose of international organization immunity is entirely
distinct from the purpose of foreign sovereign immunity.
Foreign sovereign immunity, the IFC argues, is grounded
in the mutual respect of sovereigns and serves the ends of
international comity and reciprocity. The purpose of
international organization immunity, on the other hand, is
to allow such organizations to freely pursue the collective
goals of member countries without undue interference
from the courts of any one member country. The IFC
therefore urges that the IOIA should not be read to tether
international organization immunity to changing foreign
sovereign immunity.
But that gets the inquiry backward. We ordinarily
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assume, “absent a clearly expressed legislative intention
to the contrary,” that “the legislative purpose is expressed
by the ordinary meaning of the words used.” American
Tobacco Co. v. Patterson, 456 U. S. 63, 68 (1982) (alterations
omitted). Whatever the ultimate purpose of international
organization immunity may be—the IOIA does not
address that question—the immediate purpose of the
immunity provision is expressed in language that Congress
typically uses to make one thing continuously equivalent
to another.
B
The more natural reading of the IOIA is confirmed by a
canon of statutory interpretation that was well established
when the IOIA was drafted. According to the “reference”
canon, when a statute refers to a general subject, the
statute adopts the law on that subject as it exists whenever
a question under the statute arises. 2 J. Sutherland,
Statutory Construction §§5207–5208 (3d ed. 1943). For
example, a statute allowing a company to “collect the same
tolls and enjoy the same privileges” as other companies
incorporates the law governing tolls and privileges as it
exists at any given moment. Snell v. Chicago, 133 Ill. 413,
437–439, 24 N. E. 532, 537 (1890). In contrast, a statute
that refers to another statute by specific title or section
number in effect cuts and pastes the referenced statute as
it existed when the referring statute was enacted, without
any subsequent amendments. See, e.g., Culver v. People
ex rel. Kochersperger, 161 Ill. 89, 95–99, 43 N. E. 812, 814–
815 (1896) (tax-assessment statute referring to specific
article of another statute does not adopt subsequent
amendments to that article).
Federal courts have often relied on the reference canon,
explicitly or implicitly, to harmonize a statute with an
external body of law that the statute refers to generally.
Thus, for instance, a statute that exempts from disclosure
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agency documents that “would not be available by law to a
party . . . in litigation with the agency” incorporates the
general law governing attorney work-product privilege as
it exists when the statute is applied. FTC v. Grolier Inc.,
462 U. S. 19, 20, 26–27 (1983) (emphasis added); id., at 34,
n. 6 (Brennan, J., concurring in part and concurring in
judgment). Likewise, a general reference to federal discovery
rules incorporates those rules “as they are found on
any given day, today included,” El Encanto, Inc. v. Hatch
Chile Co., 825 F. 3d 1161, 1164 (CA10 2016), and a general
reference to “the crime of piracy as defined by the law
of nations” incorporates a definition of piracy “that changes
with advancements in the law of nations,” United States
v. Dire, 680 F. 3d 446, 451, 467–469 (CA4 2012).
The same logic applies here. The IOIA’s reference to the
immunity enjoyed by foreign governments is a general
rather than specific reference. The reference is to an
external body of potentially evolving law—the law of
foreign sovereign immunity—not to a specific provision of
another statute. The IOIA should therefore be understood
to link the law of international organization immunity to
the law of foreign sovereign immunity, so that the one
develops in tandem with the other.
The IFC contends that the IOIA’s reference to the immunity
enjoyed by foreign governments is not a general
reference to an external body of law, but is instead a specific
reference to a common law concept that had a fixed
meaning when the IOIA was enacted in 1945. And because
we ordinarily presume that “Congress intends to
incorporate the well-settled meaning of the common-law
terms it uses,” Neder v. United States, 527 U. S. 1, 23
(1999), the IFC argues that we should read the IOIA to
incorporate what the IFC maintains was the then-settled
meaning of the “immunity enjoyed by foreign governments”:
virtually absolute immunity.
But in 1945, the “immunity enjoyed by foreign govern-
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ments” did not mean “virtually absolute immunity.” The
phrase is not a term of art with substantive content, such
as “fraud” or “forgery.” See id., at 22; Gilbert v. United
States, 370 U. S. 650, 655 (1962). It is rather a concept
that can be given scope and content only by reference to
the rules governing foreign sovereign immunity. It is true
that under the rules applicable in 1945, the extent of immunity
from suit was virtually absolute, while under the
rules applicable today, it is more limited. But in 1945, as
today, the IOIA’s instruction to grant international organizations
the immunity “enjoyed by foreign governments” is
an instruction to look up the applicable rules of foreign
sovereign immunity, wherever those rules may be found—