John G. Roberts, Jr.: We will hear argument next in case 11-88 Mohamad v. The Palestinian Authority. Mr. Fisher.
Jeffrey Fisher: Mr. Chief Justice, and may it please the Court: Unlike the previous case, this case does not involve the need to formulate federal common law or to survey customary international law. Here Congress has expressly created the cause of action at issue in a statute. And we know that in every single other Federal court statute that Congress has ever enacted, it has provided for organizational liability. As Justice Kennedy I think you put it earlier, it's a simple concept in our country.
John G. Roberts, Jr.: We usually like -- we usually like to begin with the language of the statute.
Jeffrey Fisher: That was my next sentence, Your Honor.
John G. Roberts, Jr.: Well then go ahead.
Jeffrey Fisher: Thank you. The question arises in this case why did Congress use the word D.C. circuit that gave rise to the TVPA. And in that case, Judge Edwards wrote a lengthy concurrence where he again and again used the word individual liability, and individual to describe the PLO which was the very defendant in that case against the backdrop of international law which uses the term individual to differentiate anyone from the state. After Nuremberg, starting with the discussions recited most prominently in our reply brief at pages 6 to 8, Professor Jessup and many others discussed whether international law applies simply against states or whether it applies to quote individuals. The word individual was used again and again to mean anyone but the state. And as Professor Jessup and many others said it, includes organizations and juridical persons. And this is the usage that Judge Edwards used in his opinion in Tel-Oren. He uses the word 43 times in that opinion. And if you look at nothing else--
Ruth Bader Ginsburg: I thought you said that Judge Edwards opinion was about politically motivated terrorists, not coming within the Alien Tort Statute.
Jeffrey Fisher: --No. What Judge Edwards concluded, Justice Ginsburg, was that as he understood the Alien Tort Statute at the time against the backdrop of international law, that any private actor acting under color of law could be held liable. And what Judge Edwards decided in that particular case was that the PLO as it then existed was not a state actor. But the rule that Judge Edwards proscribed and this is at page 793 I believe in his concurrence was that individuals acting under color of law should be held liable. That is the precise language that the TVPA uses. So if you want to know where Congress got the word individual, and what it probably thought it meant, the best place to look is Judge Edwards' opinion.
Antonin Scalia: Wait. Congress got it from Judge Edwards. Gee, my goodness.
Jeffrey Fisher: I think, Justice Scalia, I think--
Antonin Scalia: I will bet you none of them -- none of them even read that opinion.
Jeffrey Fisher: --Well, I think Judge Edwards' opinion was quite prominently read by the Congress then. It is cited throughout the legislative history in the Senate Report, in the House Report, again and again in the hearings. And this Court I think in Skilling, a couple terms ago, this Court said we have a statute before us dealing with honest services. And what did Congress mean when it used particular language. Well, it probably meant what lower court judges had used that language to mean.
Antonin Scalia: That is a strange phrase, honest services, as, you know, as a crime, deprivation -- deprivation of honest services. But the word "individual" is not a strange word at all. It's used all the time.
Jeffrey Fisher: Well, no, Justice Scalia--
Antonin Scalia: It means an individual.
Jeffrey Fisher: --I think it's a strange -- it's a very strange phrase in the context of a tort statute, because we know that Congress always provides for organizational liability, and it's never used to our knowledge, the word "individual" in a tort statute. So it is odd that it appears here.
Antonin Scalia: Is that better for you or worse for you?
Jeffrey Fisher: Well, I think it's better for us in that it shows that Congress -- something is amiss. And I think Judge Edwards' opinion explains what is going on. Now what my opponents want this Court to do is to look at other places in the U.S. code where the word individual is used outside of international law, outside of tort regimes and we concede often the word individual--
Sonia Sotomayor: The problem is I don't even look there. I look to the TVPA, section 2 (a)(2) which uses the word person. So, it wasn't as if in writing the statute Congress forgot the word person.
Jeffrey Fisher: --No, it didn't.
Sonia Sotomayor: And they appear to be using "person" in the organizational way that person is defined in the dictionary act and elsewhere. So isn't that a textual clue that they were using the word "individual" in a different sense.
Jeffrey Fisher: No, Justice Sotomayor, for two reasons: One is because for reasons I will explain, the word person as it appears in the TVPA actually only applies to natural persons. Let me start with that. The argument the other side has is the word--
Sonia Sotomayor: Individuals legal representative or to any person who may be a claimant in an action for wrongful death. I'm not quite sure. Legal representative is often, can be a person but can often also be a corporation.
Jeffrey Fisher: --I think the argument -- I think the argument is that the word person somehow contrasts with individual.
Sonia Sotomayor: Yes.
Jeffrey Fisher: And as we have shown in our brief only natural people can bring wrongful death actions. They claim, and the D.C. circuit argues that in a state, as we have shown in our brief and this Court has squarely held, only natural people acting as administrator or executor of an estate can bring an action. So the word person refers to natural person.
Elena Kagan: You know, it's obvious that individual doesn't usually mean what you want it to mean. Now you have a theory that they all just read Judge Edwards and they came in and used "individual" but it seems actually that we know where individual came from in this statute. The statute started out by saying person and then there was this moment where one Congressman said, I don't want this to apply to corporations, and the staff member said, I have a great idea to make sure it doesn't apply to corporations, let's change the word person to individual. So that's the way individual got into the statute. And it got in specifically to address this question.
Jeffrey Fisher: We don't disagree with that's how the word gets into the statute. But the question, as this Court has always looked to legislative history is, what does that -- what light does that shed on Congress's understanding of the law to ultimately pass. So two Congresses later, four years later Congress passed the statute with the word individual. And the problem with that--
Elena Kagan: And it means what it means.
Jeffrey Fisher: --And the problem with that theory, Justice Kagan, is it squarely is contradicted by the committee reports contemporaneous with the statutes that say we're using the word individual to make crystal clear that foreign states and their entities cannot be sued. And that's the reason that--
Stephen G. Breyer: Well, then I looked at -- I have looked at -- I know I have to go through legislative history. I've said it is meaningful and so I do it. And so far -- so far, I think I have to say that you are on a weak wicket. The word persons when it was there, I found lots and lots of instances and by people in the civil international civil rights community who are testifying. Or I look at what they say and over and over they say, a limited statute -- the person won't often be in the United States or the PLO had a presence in the United States. The person won't be in the United States very often. I know, but sometimes he may come over here, it's important to take a -- make a symbolic step and not a word could I find when they are talking even about the word could I find when they're talking even about the word person, that suggested they meant even the PLO at that time. In fact they thought it would be a nice thing but -- but -- I mean that's the tenor of what I seem to have found so far. So I mention that, because you will point out to me the things that I accidentally skipped.
Jeffrey Fisher: --Yes, pages 46 through 49 of our blue brief, Justice Breyer. There are numerous references to organization, the word organization, group, it is a word used. And, I think Justice Kagan this is also responsive to your question. Two years after the change you describe was made, there was a hearing held before the Senate Judiciary Committee where both bills were being considered. The one bill from the House that used the word individual and the word -- and the Senate bill which used the word person. And one would expect that if people thought the word individual meant something different and limited the class of defendants, that that would have come up or somebody would have expressed awareness of it. But to the contrary--
Antonin Scalia: Suppose I am a member of the House or of the Senate. And I am not a member of the committee that engages in all of this legislative history. And I -- I see the word individual in this statute. And that's the basis on which I vote for or against the statute. Why should I be saddled with whatever sayings by members of the committee or by experts testifying before the committee occurred? It was out of my hearing. I voted for individual. And individual -- well -- if Congress wanted individual to mean what you say it doesn't mean, what word would they have used instead? I mean, if individual is a code word for person, what's the code person for individual? [Laughter]
Jeffrey Fisher: --Natural person, Justice Scalia. And we have cited many statutes in our blue brief that use the word U.S. code. And this goes to the question, I think is also responsive to Justice Sotomayor: Why did they use the word "individual", instead of person? Why did they say in the committee reports, that the word "individual" made it crystal clear that states or their entities could not be sued. And the reason why is because person would have left some residual ambiguity as to whether something like a foreign city or a foreign county, think of a foreign county jail that tortured somebody. Under section 1983 law, which uses the word "person", counties and cities are liable. However, under the Foreign Sovereign Immunities Act, under established international law sovereign immunities principle, they are not. So the word individual--
John G. Roberts, Jr.: So they did this to -- they chose that word to avoid any residual ambiguity. But they thought there was no ambiguity at all as to whether the term "individual" meant natural persons or organizational entities?
Jeffrey Fisher: --Well, I respectfully submit they didn't think about that question, which is why I am standing here today. What they were really concerned with was avoiding sweeping in foreign states and their entities. And they just didn't think.
Ruth Bader Ginsburg: There were witnesses who testified, were there not, Mr. Fisher, that the TVPA would take care of a type case that when the torturer shows up physically -- those were the words that used -- the torturer comes into the state, into the United States, is physically present in the United States. That was the model that at least those witnesses had in mind, that some of them were quite distinguished witnesses.
Jeffrey Fisher: Those are statements to that affect. And of course, the TVPA does cover natural persons if they happen to be in the United States. But the comment that Justice Kagan pointed out is the only comment that the other side can find anywhere in the legislative history.
Elena Kagan: But let's suppose that is true, Mr. Fisher. Let's suppose that aside from Congressman Leach, nobody thought about this question. But we know what the normal meaning of "individual" is, and you are suggesting -- let's suppose that they just -- the question of individual versus corporate liability was not on their mind, but they chose a word that means something, and you are suggesting that we should resort to background norms that, you know, what Congress generally does, what it imposes liability, rather than the words in the statute that they passed. And why should we do that?
Jeffrey Fisher: Well, if the word "individual" could only mean natural person, I agree. The case would be over. But we have cited many dictionary definitions, many usages in the U.S. code, and many holdings from this Court and others that have actually found that a secondary of the term is singularity. A single unit or entity.
Ruth Bader Ginsburg: If you found no tort statute, you use the "individual" to include organizations.
Jeffrey Fisher: Right. No tort statute uses it one way or the other, Justice Ginsburg, which we think, if anything, gets you back to the background norms and the secondary meaning. And let me say two things about--
John G. Roberts, Jr.: We have the additional problem, though, that your reading gives a different meaning to "individual" in two sentences that are right -- actually it's in the same sentence: an "individual" who does the torturing, subjects an "individual" to torture. Now, I under your argument that you can have an organization doing the subject thing, but how do you subject an organization to torture?
Jeffrey Fisher: --You don't.
John G. Roberts, Jr.: You don't.
Jeffrey Fisher: And I--
John G. Roberts, Jr.: So "individual" in the one clause, you say means "organization"; "individual" in the other necessarily does not.
Jeffrey Fisher: --I don't think it's that they have different meanings, but you are certainly correct that they refer to different things. But that is no different than numerous other statute that is we cite at page 28 and 29 of our brief that use the word "person" to mean a Plaintiff when it can just be a natural person and a defendant when it can be an entity. And, indeed, I think, if I don't get ahead of my--
Sonia Sotomayor: In the same sentence?
Jeffrey Fisher: --Yes. Yes.
Sonia Sotomayor: In those statutes you sp--
Jeffrey Fisher: Yes. Go to page 28 and 29 of the blue brief. And, indeed, their whole argument -- and, Justice Kagan, this goes back to your point, their whole argument is: when the word "person" was used throughout the statute, then it -- then it changed meanings in the same way, that it covered organizational entities. But -- so if the word "person" can do the same work, the word "individual" can do the same work. So the question is why -- I think the question that you end up with is, given that "individual" has this secondary meaning, does have this customary usage that Congress may well have been aware of, that at least that this Court often says, if there is a customary usage of a term, we will assume Congress was aware of it. Why would Congress have done what it did and limit this act, unlike any other tort statute in the U.S. Code, an actual person. We submit there is no good reason. Justice Ginsburg, you talked about statements legislative history to the effect that individual people who are torturers may be found in the United States, and that's true. But the TVPA is a tort statute. Congress already had on the books immigration laws and criminal laws that refuse safe haven to such people. The only person of the TVPA is to provide compensation. And in every court regime of which we are aware in Federal law -- and they haven't even pointed to anything to the contrary in State law or in international law, the way that you get compensation in tort regimes is you hold agents liable and you hold corporations liable for the acts of their agents. It's absolutely understood. And there is no good reason -- if you think of the three things that a tort statute is supposed to accomplish -- compensation, deterrence and accountability -- on all three of those stands, the TVPA utterly falls flat if it cannot reach organizations, and this is the perfect case that shows you how that is. Just to start with remedies--
Antonin Scalia: Maybe the organizations opposed it.
Jeffrey Fisher: --Not--
Antonin Scalia: Maybe organizations opposed the extension of the legislation to themselves. Is that conceivable? And is Congress ever influenced by such lobbying? [Laughter]
Jeffrey Fisher: --That may -- in other cases, perhaps, but you don't find anything in this legislative history suggesting that organizations were--
Antonin Scalia: Yes, but you don't find lobbying in the legislative history.
Jeffrey Fisher: --Well, I can't prove something that I don't have a piece of paper for.
Antonin Scalia: It's an explanation. You say there is no possible explanation. I can imagine that corporations would have been quite upset by this notion.
Jeffrey Fisher: Justice Scalia, one would expect to have found over the four years this was debated and the hundreds of pages of legislative history some clue that that is what Congress was reacting to and thinking about. This would be an extraordinarily unusual statute, and you'd think that one person in the Congress that voted for it or in the committee reports that are contemporaneous would mention that. The House -- the Senate Report has a section called "who can be sued". And it says -- I quoted it to you earlier -- one would expect to find in that section that, unlike every other tort statute, we are restricting the people that can be sued, but they said instead--
Antonin Scalia: This is the dog that did not bark, right? Legislation cannot mean what it says unless the legislative history says that it means what it says. Right?
Jeffrey Fisher: --No, Justice Scalia, I agree that if the word "individual" can have no other meaning than that which my opponent suggests, then I lose. But I'm suggesting to you, and we have cited plenty of authorities that there is a secondary meaning both accepted in the U.S. code and in cases and in international law at this point.
John G. Roberts, Jr.: But Congress, as you have indicated, Congress focused on the very question of whether organizations would be covered or not in the context of whether a State would be covered. It seems to me that the legislative history cuts strongly against you, putting even aside Congressman Leach. The issue was there. And if they meant to say, well, let's find a term that leaves some types of organizations out, States, but not others, we will just say "individual", and people will understand that we don't mean a State, but they will also know that we do mean another type of organization or corporation.
Jeffrey Fisher: I think, Chief Justice, that that is exactly the thought process that Congress went through. And I can't do any better than to point--
John G. Roberts, Jr.: But it's at least ambiguous. When you are saying, well, we want a term that is going to include individual persons and organizations but not State organizations. And the only term that fits perfectly is "individual".
Jeffrey Fisher: --Exactly. That's our argument.
John G. Roberts, Jr.: Really? [Laughter]
Jeffrey Fisher: And page 6 to 8 of our reply brief explains why that is so. I know -- I know it might be surprising, but if you read--
John G. Roberts, Jr.: Hah, hah. [Laughter]
Jeffrey Fisher: --If you read--
John G. Roberts, Jr.: But you have been saying all along "individual" has a secondary meaning.
Jeffrey Fisher: --It does.
John G. Roberts, Jr.: So why would they have picked the secondary meaning of a word rather than try--
Jeffrey Fisher: Because it's more precise word in international law discourse than the word "person" for the reason I described before. If you look Judge Edward's opinion--
Elena Kagan: How about non-state actors?
Jeffrey Fisher: --Pardon me?
Elena Kagan: Non-state actors.
Jeffrey Fisher: Well, except for -- Remember, there is a State action requirement in the statute that--
Elena Kagan: Individuals and organizations.
Jeffrey Fisher: --I mean, maybe there's other ways that Congress could have done it, but the way Judge Edwards did it and the way that international law scholars and people having this conversation about whether people other than States ought to be liable under international law, was the term that they always used, and it's not just -- you don't just -- you know, we are not running a west law search looking for wherever we can find it. They are in the titles of the articles, is whether individuals are subject to liability.
Antonin Scalia: Mr. Fisher, it seems to me you misrepresent our jurisprudence when you insist that "individual" has to have only that meaning. That's not what our jurisprudence says. We say that we give words their usual meaning, their common meaning. Even though they may sometimes be used in a different fashion, it's the usual or common meaning that we apply.
Jeffrey Fisher: There is obviously cases to that effect, but I'm--
Antonin Scalia: Many cases to that effect.
Jeffrey Fisher: --I'm aware of other cases--
Antonin Scalia: We say it all the time.
Jeffrey Fisher: --Well, I think, for example, Justice Scalia, of the jurisprudence where I had an argument in this Court about the second or successive petitioner rule under habeas law. And this Court has said second -- even though where "second" has an obvious ordinary meaning, it doesn't actually mean that. It has a specialized usage that accumulated in the law; and when Congress used that term, we incorporate that usage. And so there is case after case where this Court has said -- the Morissette principle as back drop against common law where this Court has said that you do look to usage in prior opinions, prior case law, prior discourse as a way of infusing statutes with meaning. And if I could just go back to the question that I posed, which is, why would Congress have done this when it -- it just doesn't have an answer for why Congress would do this in this particular statute. Now the other side has given a few reasons why Congress might--
Elena Kagan: It doesn't really need an answer. Suppose we think there is no answer to that question because Congress didn't think about it other than Congressman Leach who appears to have thought about it and reached the opposite result. Most of them didn't think about it. But there you are. The statute says what it says.
Jeffrey Fisher: --Well, if you find the statute at least somewhat ambiguous for the reasons I've described, then what Meyer and cases say is you assume if Congress didn't think about it, but they want an ordinary tort and agency principle, and the -- the -- in Title VII and many other cases, this Court has said, of course Congress doesn't think about all these things; and when they don't, and absent--
Stephen G. Breyer: Maybe they did. You see, I might as well be honest with you, page 26 of the government's brief did have an impact on my thinking. It's Father Drinan, and Father Drinan says in the hearing, "I think it would be best to stay with that and just avoid all of the problems about the PLO and related groups. " And then Michael Posner testifies, it says, to the government to the same effect. So there, the great advocates of this thing are sitting there saying we don't think it should cover the PLO; let's not take that step at this time.
Jeffrey Fisher: --The--
Stephen G. Breyer: The -- I mean -- and you have Congressman Leach, and then you have the word "individual".
Jeffrey Fisher: --The question Father Drinan was responding to was whether or not the TVPA ought to be extended to private entities that do not act under color of law.
Stephen G. Breyer: But he's--
Jeffrey Fisher: And at the time--
Stephen G. Breyer: --He's taking that -- he's taking that -- go ahead.
Jeffrey Fisher: --Yes, if you look at that quote, remember, that hearing was held before the Oslo Accords, before the PLO became in our view a state actor. So what he's saying, if you look at the quote in context, Justice Breyer, is that the TVPA shouldn't be drawn to sweep in groups that don't act under color of law. And that issue is not before this Court today. We've argued that the PLO now does act as a color of law, and that's a question for remand.
Antonin Scalia: I -- I find it hard enough to parse the statute without having to parse Father Drinan's testimony. I mean--
Jeffrey Fisher: Well, of course, I was just responding to Justice Breyer's question as to that context. But -- but if you go even beyond compensation, for compensation you have to identify somebody, you have to bring them into a court and you have to enforce a judgment. That is virtually impossible against only natural people. Of course Congress would have expected the ordinary rule of organizational liability. For deterrence, the Respondents' argument is that even if Pirates, Inc. -- and for this case we'll make it Torturers, Inc. -- were created for a policy of torturing people abroad, torturing American citizens who travel abroad, their argument is you could not hold that corporation liable, even under its express policy and purpose. There is no good reason under deterrence grounds why you would let corporations or other organizations cycle individual actors in and out with impunity. And finally in terms of accountability, just think about the backdrop again with which this statute was created. There are some pretty horrible groups in the world that actually claim credit and responsibility in the world stage for torturing or killing American citizens; and the idea that Congress would have passed a statute that these organizations can stand proud in their view and say we've done this, and that our statute in the U.S. Code would -- would somehow only get their agent, and not the organization or entity itself, we submit it just doesn't make any sense.
John G. Roberts, Jr.: --Well, the TVPA is an extraordinary step in terms of exposing liability, and it doesn't seem to me to be an odd idea that Congress would want to proceed carefully before establishing a situation where the -- the use of the American tribunal is as broad as it is under this situation.
Jeffrey Fisher: Well, I don't -- I don't disagree that it's unusual statute. It's not unheard of; we have cited in our briefs many other statutes that apply extraterritorially, but remember that all the arguments for and against foreign policy friction that you heard in the first case don't apply here. Congress expressly--
Stephen G. Breyer: Oh, the obvious thing that they said is look, just -- this is going to bring in suits against the Palestinian Authority. That's a very touchy issue in foreign affairs, and we don't want to have to go that far. And -- and some of the things that are said seem to bear that out. That's -- that's what is pulling--
Jeffrey Fisher: --With respect, Justice Breyer, I would just say if you look back at the legislative history, the only conversation that was had is should we reach non-state actors. That was the only conversation that was had, and that's the conversation you referred to earlier. Nobody suggested that if you apply this extraterritorially, if you enacted this statute, that you somehow ought to shirk from the ordinary rules of -- of organizational liability. Nobody suggested that.
Elena Kagan: Mr. Fisher, one case that you seem to have on your side; you don't have very many but you have this one, is -- is Clinton, which -- which does read "individual" in the way that you say, and does it in order to avoid an absurd result -- what the Court thought of as an absurd result. Do you think that this statute is absurd if not read your way?
Jeffrey Fisher: I don't think -- if I could beg your indulgence for one moment -- I don't think I need to argue that, because I think that for all the reasons I have given there is enough ambiguity and there is good enough reasons why we would assume Congress meant the ordinary rule. But if I had to make that argument, I think I could, because the only arguments that have been advanced in the papers are reasons for not having this extraterritorial statute in the first place. There is no good reason once you have it not to apply to organizational actors. And Justice Breyer, this goes back to your comment. It's still a mystery to me how it's more problematic in international relations to hold an organization accountable -- to not -- to hold organization accountable than to hold its -- its board of directors on a personal basis, or to hold indeed a high official of a foreign government. Nobody's made that argument, and if I could say one thing and I will reserve my time. Take a good look at the United States' two briefs. Their -- the only argument they provide in of the Kiobel case is that there is no good reason -- that's -- that's the United States' terms -- why Congress would want to have a statute that applies only to judgment proof individual actors and not to agents on whom they're acting on behalf of. And we think that that is exactly right, and that's why Congress wouldn't have wanted that here. If I could reserve the remainder.
John G. Roberts, Jr.: Thank you, counsel. Ms. Ferguson.
Laura G. Ferguson: Mr. Chief Justice, and may it please the Court: Congress enacted the Torture Victim Protection Act to create a cause of action against individuals who commit acts of torture or extrajudicial killing under color of law against other individuals. Petitioners attempt to inject ambiguity into what is it a very unambiguous term in U.S. legal usage by referring in their reply brief to a supposed subtle definition of "individual" in international law. But individual is not a term of art that has a specialized meaning in international law different from its ordinary meaning in -- in U.S. legal usage. Petitioners' reply brief cites two secondary sources spanning a 60-year period, while other international law sources including the restatement, international conventions and other scholars, emphasize the distinction between individuals and private organizations.
John G. Roberts, Jr.: Mr. -- Mr. Fisher ended by saying there's no reason Congress would draw this line. Why would they want to hold the individual controlling officers of an organization liable for torture, but not the organization itself?
Laura G. Ferguson: Congress was proceeding very cautiously and incrementally in enacting a statute with extraordinary territorial reach over executive branch opposition. It decided to focus on the personally responsible wrongdoers who subject victims to torture or extrajudicial killing, and did not go beyond that to reach another class of organizations that could be held secondarily liable.
Anthony M. Kennedy: But the Chief Justice's question was why did Congress do that? What were the reasons for that?
Laura G. Ferguson: Congress was focused very much on the Filartiga case, where the Second Circuit had found that there was a norm prohibiting public officials from engaging in torture or extrajudicial killing; and Congress wanted to avoid the scenario where you have a torturer who comes to our shores; and Congress agreed with the Second Circuit in Filartiga that if the torturer comes here, he should not be able to escape accountability from his victim. If his victim finds him in our -- in our country, there should be a cause of action. But Congress had every reason to proceed very cautiously and incrementally. It put its toe in the -- in the extraterritorial waters when it extended universal civil jurisdiction to violations of certain international law norms. It did not dive in. As we heard this morning in the Kiobel argument, this is a very complex area as to what norms are actionable under international law.
Samuel A. Alito, Jr.: I don't understand that.
Ruth Bader Ginsburg: How many judgments under -- I don't know whether it's Filartiga or Fabrigas -- that that pattern, where the individual torturer is found in a U.S. jurisdiction?
Laura G. Ferguson: There have--
Ruth Bader Ginsburg: There have been many judgments; how many have collected?
Laura G. Ferguson: --Petitioners have identified-- one case, the Jean V. -- case, excuse me, where there was a collection. There may be other cases where there ultimately is a satisfaction of the judgment. But it's inherent in the statute that reaches foreign defendants that often they do not have access in the United States.
Ruth Bader Ginsburg: If Congress really wanted to have this, why wouldn't it include entity liability? The corporation is likely to have more money than an individual torturer.
Laura G. Ferguson: The -- the situation Congress had in mind in enacting the TVPA was adjusting the norm against State-sponsored torture and extrajudicial killing, where the agent is -- is almost invariably acting on behalf of the State, and yet it didn't create an exception to the Foreign Sovereign Immunities Act to State sponsors of torture and extrajudicial killing. It was concerned with this Filartiga scenario, where the U.S. wanted to take a position -- we will not give torturers a safe haven in our country.
Ruth Bader Ginsburg: Wouldn't that be the point that the immigration law takes care of it? They wouldn't be able to get into the country.
Laura G. Ferguson: The immigration laws were not as robust in 1991 as they perhaps are now. We -- we know that the TVPA is premised on the fact that the torturer is in fact found in the United States, because otherwise, the United States couldn't assert personal jurisdiction over--
Antonin Scalia: But I'm not sure that the immigration officials conduct a thorough investigation. I mean, is there a box on the immigration form, you know, "have you tortured people? " "Yes, no. " I really don't think they investigate that.
Laura G. Ferguson: --It's not a -- it's not a perfect screen, because of course, torturers don't announce themselves at the border as torturers. So in fact, that's why we have situations where we've had these gross human rights violators that end up in the United States. Even -- in one of the cases we heard, won the Florida lottery. So -- so they do find their way to our country.
Samuel A. Alito, Jr.: I still don't understand your explanation of the reason why Congress would draw a distinction between an individual and an organization. You keep saying that the -- in the case of the individual, the individual was here. But the organization can be here, too.
Laura G. Ferguson: The organization that Congress had foremost in mind was the State. This is State-sponsored torture, State-sponsored extrajudicial killing. The -- the problem it describes regarding torturers and extrajudicial killing is one of States. The legislative history talks about how one-third of the States are -- have been engaged in sponsoring torture and extrajudicial killing. But those were the organizations they had foremost in their mind, and yet the statute doesn't impose liability on those organizations. It suggested a very personal wrong of a torturer avoiding accountability to their victims in their home country, and coming to our country and seeking safe haven--
Sonia Sotomayor: So it's okay to keep out individuals who subject others to torture, but corporations, we want their money so they should invest here, because we're going to protect them from liability for people that they torture?
Laura G. Ferguson: --I think -- I think the question is whether there is a plausible reason why Congress would have taken this incremental approach, and focused first on those personally responsible versus extending liability more broadly under secondary liability theories. And because the statute is so clear on its face, because "individual" carries its ordinary meaning, and the surrounding statutory text confirm that Congress was using "individual" in its ordinary sense, couldn't prevent the very high bar for the Court to depart from the plain-text meaning of the statute.
Antonin Scalia: You don't have to prove it's an intelligent statute, could you? Maybe it's a stupid statute. Is that possible? Is it possible?
Laura G. Ferguson: It could be clearer--
Antonin Scalia: Is it possible that it -- it's a stupid statute?
Laura G. Ferguson: --Yes. It's possible, but it was clear enough--
Stephen G. Breyer: It's also possible that it's not a stupid statute. [Laughter] I took -- I took -- the reason I say that is because if you want to elaborate on this -- because I purposely asked it. But -- but one of the things in the government's brief, it did as I said have an impact. But as Father Drinan is asked, shouldn't we have here -- this is before it reads "individual". It reads PLO? He responds, "I think that we should exclude nongovernmental organizations. " "I think it would be best to stay with that and just avoid all of the problems about the PLO and related groups. " Now -- but you heard the response to that, which really was, if I look at the context, I'll see that's less relevant than I think -- than I did think. So what do you think?
Laura G. Ferguson: --I think that even the human rights supporters who were strong advocates of getting this legislation enacted understood that this was an incremental approach, that where there was some certainty within international law within this area of official torture carried out by public officials under color of State law, and it provided a cause of action for this Filartiga scenario, and even the human rights supporters understood that it was important to proceed cautiously and incrementally. This -- the United States does not tread lightly when imposing its jurisdiction over the acts of foreign defendants for foreign conduct under color of foreign law. That's an intrusion on other nations' jurisdiction. And we don't do that lightly.
Elena Kagan: But Miss Ferguson, your story makes it sound as though everybody was really focused on this question, and made a determination to proceed incrementally and not to include foreign nations. Isn't it -- if you -- if you look at what happened here, more likely that other than Congressman Lynch -- Leech -- in fact, nobody was focused on this question. But because of Congressman Leech's intervention, the words changed, and the word was continued throughout the legislative process. And that's the word that was voted on.
Laura G. Ferguson: Well, Representative Yaton was the sponsor of both the bill that was marked up where "person" was changed to "individual", and was also the sponsor of the bill that was ultimately enacted. So he was certainly aware that "individual" was selected for this reason of excluding corporations. But more importantly, "individual" almost invariably carries the meaning of "natural person". If Congress had wanted the statute to reach nonsovereign organizations, it very easily could have used the term 1983 does. And the notion that they couldn't use "person" because it would encompass foreign States is not the case when you're dealing with a person to describe a potential class of defendants, because we presume that Congress does not intend to aggregate the Foreign Sovereign Immunities Act. And the Dictionary Act tells us that "person" is the term Congress uses when it wants to refer to natural persons and artificial persons, but not sovereigns. So if the Congress wanted to do what the Petitioners claim, they had a very useful term that Congress uses all the time to reach that category, and it's the term "person". But instead, they used "individual", and elsewhere in the same sentence, they used "individual" to refer to who shall be liable. They used "individual" four more times in a way that can only mean a human being. Now granted, there are exceptions to this canon of consistent usage, but they have no fair application here. Those canons apply when you have a term that has more than one ordinary meaning and you can use them interchangeably without being confusing. Here, the ordinary meaning of individual is to exclude organizations. We regularly use individual to mean we're not talking about corporations; we're not talking about organizations. So in the same sentence of the statute to use individual to mean -- let's assume we don't normally mean corporations and then immediately just switch and -- and use it to refer to human beings would be very confusing. And yet we see Congress very deliberately and carefully then switch to the broader term "person" when it wanted to sweep in a broader class of potential plaintiffs. They wanted to make sure they were sweeping as broadly as possible to allow persons who have wrongful death claims to be able to bring a suit where the victim has died. So they use the term "person". And Petitioners' interpretation gives no separate meaning to individual and person, but we assume that when Congress uses those terms distinctly, they intend to give them different meanings. I would just return to the plain text of the statute. It's very clear. The only situation in which the Court has found that "individual" should be interpreted inconsistent with its ordinary meaning is upon a showing of absurd results. Here, there simply is no absurd result. Congress had every reason to proceed cautiously and incrementally in extending U.S. jurisdiction over conduct that has no nexus to the United States. And it proceeded by focusing on this Filartiga scenario, ensuring that the United States would not become a safe haven for torturers. I would ask that the Court give the statute its plain-text meaning and affirm the court of appeals.
John G. Roberts, Jr.: Thank you, counsel. Mr. Gannon.
Curtis E. Gannon: Mr. Chief Justice, and may it please the Court: By using the term "individual" when describing who shall be liable for damages under the Torture Victim Protection Act, Congress chose to limit the statute's scope to natural persons. That's the ordinary meaning of the term "individual", especially in legal usage. And as Justice Sotomayor pointed out, this statute uses the term "person" in addition to the term "individual".
Samuel A. Alito, Jr.: Mr. Gannon, suppose two people are tortured, and one is an alien who has never been within 10,000 miles of the United States, and the other is a U.S. citizen. The position of the United States is that the alien can sue, but the U.S. citizen can't?
Curtis E. Gannon: The position of the United States is that the alien may be able to sue. And I think that's going to depend ultimately on this Court's construction of the ATS. There are always going to be differences in application between the ATS and the TVPA so long as the ATS is still on the books and has any vitality. That of course wasn't clear to Congress when it enacted the TVPA in 1992. It wasn't sure whether the ATS was going to be a going concern in light of Judge Bork's opinion in Tel-Oren. But rather than amend the ATS, Congress in the TVPA decided to create a separate statute which provided an express right of action both to aliens and to U.S. citizens for two specific norms. It's broader than the ATS in several ways but it's narrower that the ATS in several ways. So if your hypothetical involved piracy, two victims of piracy, then it's quite clear after this Court's decision in Sosa--
Samuel A. Alito, Jr.: No, but two victims of torture, you don't find that to be an incongruous result?
Curtis E. Gannon: --Well, I think that is ultimately going to depend on what happens under this Court's ATS jurisprudence, and so it does seem that the Court--
Samuel A. Alito, Jr.: I'm asking about your position, the position of the United States.
Curtis E. Gannon: --The position of the United States in the other case today is that the ATS does not include a categorical bar on corporate liability; and that -- that has no regard for the theory of liability, the locus of the acts, the citizenship of the parties and the character of the international law norm at issue.
Samuel A. Alito, Jr.: But Mr. Rahim had never been naturalized. I guess that was a mistake.
Curtis E. Gannon: Well, in -- in this instance, then that would present a different question that this Court has not yet been presented with under the ATS, and ultimately, maybe an alien will be able to bring a suit under the ATS that he can't bring -- that a U.S. citizen could not bring under the TVPA, but that is a product of the fact that there are still two different statutes. The Alien Tort Statute will always give more rights to aliens than to U.S. citizens because by definition it is only available to aliens.
Sonia Sotomayor: So what's the good reason--
Curtis E. Gannon: Well, I--
Sonia Sotomayor: --for the U.S. to have limited liability to natural persons in the TVPA, but not in the ATS context?
Curtis E. Gannon: --Well, I think that there are several reasons that Congress could have had in mind, although I think that if you read the legislative record, that Justice Kagan is probably correct, that most members of the Congress weren't thinking precisely about this question. Representative Leach appears to have been. I think that in the other passage cited on page 25 of the United States brief involving Father Drinan that Justice Breyer was looking at before, there is an earlier passage that we cite where Father Drinan seems to indicate there may be a distinction between the two bills that are pending before the Senate at that point, because one refers to persons and one refers to individuals.
Antonin Scalia: But they were thinking about that in 1797, I mean -- you are saying in the later statute--
Curtis E. Gannon: No, I think that in--
Antonin Scalia: --A more perceptive Congress in -- in 1797?
Curtis E. Gannon: --No, I think the difference is that the ATS has not even attempted to speak to this question, whereas the TVPA does. As this Court noted in Amerada Hess, the ATS does not define a class of defendants here. Congress define a class of defendants, and I think that there are several reasons why they ended up with this result, the chief of which is that all of the cases that they were thinking about at that time had involved natural persons. The -- the Filartiga case was -- was the flagship case--
Stephen G. Breyer: That's why they are thinking of it. Here's argument the other way, which I see now, is that -- is that look, Father Drinan and the others are not talking about individual versus person; they are talking about whether say, the PLO falls under color of law of a foreign state. And so they are not thinking of that question.
Curtis E. Gannon: --It's true.
Stephen G. Breyer: And if in fact it does fall under color of law there, they don't care about whether it's individual or person. They've never really thought about that.
Curtis E. Gannon: But the fact--
Stephen G. Breyer: The only one who thought about it was Congressman Leach, and that was four bills earlier. And--
Curtis E. Gannon: --No, but the reason they are not thinking about it is because the paradigm they were thinking about was the torturer who is found in the United States who is -- who is walking on the streets. There is an individual moral accountability that -- that everybody understood needed to happen there. To the extent that the legislative history is referring to groups, my friend Mr. Fisher referred to references in the legislative history to groups and organizations that basically are references to things like death squads. And as a practical matter, even today none of the cases in the Eleventh Circuit that are brought under the TVPA are being brought against death squads. They -- the case that Petitioners cite in their reply brief, the Drummond case, was not a case where the Columbia paramilitary was a defendant. The defendants there were actually two corporations and a CEO. And so I think as a -- as a practical matter, although it is natural for us to think that if an individual is liable, then so too is the organization that it may have been acting -- that he may have been acting on behalf of; but it is not natural to think that these type of clandestine shadowy organizations that would claim responsibility for such acts -- such heinous acts overseas, would have a jurisdictional presence in the United States. And I think if you -- as Respondents' counsel already noted, because the TVPA requires state action, the organizational entity here is usually going to be the states, but petitioners acknowledge that no state entity is going to be liable here, and indeed the result here is not that dissimilar to some of this Court's 1983 jurisprudence. Petitioners mentioned the question of whether Congress was concerned that the term "person" might pull in something like municipalities, because it could be read to bring in sovereigns, but in -- in the context of municipalities, under Monell this Court has concluded there is no respondeat superior liability, and that superiors or supervisors are not liable for the torts of their agents; they are only liable for their own individual wrongs. And so I do think that there are policy reasons why Congress could have said something different here. But -- and they may well be encouraged to do that by 20 years of ATS precedent, that as now for the first time since the TVPA was enacted started to raise the question of whether corporations should be held liable under the other statute. If Congress wants to disagree with the types of policy concerns that were behind this Court's Monell decision, Congress could reach a different result, but we don't -- don't think that that's a decision that ought to be reached through statutory construction. Here, Congress used the term "individual". It spoke about an individual who subjects an individual to torture or extrajudicial killing. It separately referred to "person". And Petitioners' reading of the statute actually gets the relationship between person and individual, which is quite clear as an ordinary question of Federal statutory construction in the Dictionary Act, precisely backwards, because under their reading, "individual" means any nonsovereign natural or artificial person, but "person" can only mean natural person. And so we think that that is -- is a particularly odd reading of the statute in light of the Dictionary Act, and the statutory structure. If there are no further questions, I would urge the Court to affirm.
John G. Roberts, Jr.: Thank you, Mr. Gannon. Mr. Fisher, you have 4 minutes remaining.
Jeffrey Fisher: I can make four points, if I may, Your Honor. First, when asked again and again why Congress would have done this, I think all I heard was that Congress wanted to adopt an incremental approach. And then Mr. Gannon said, well, maybe we also wanted to have moral accountability. Well, an incremental approach doesn't make any sense. Yes, Congress did so in the context of requiring exhausting a limitations period, so it treaded softly there. But there are numerous Federal statutes: RICO, the Sherman Act, the Antiterrorism Act, which is quite similar to this act in many ways, that apply to events abroad. And they all apply to organizations. So if Congress was going to do this, there's no reason to think it wouldn't have wanted to do it. Miss Ferguson pointed to the Dorelien case as the one example she could point of where a TVPA judgment was able to be enforced. And the only reason why that was able to be enforced is because that guy happened to win the Florida Lottery. He had hidden all of his other assets abroad and won the Florida Lottery. Is that the statute that Congress meant to pass? We don't think so. Moral accountability was already taken care of in the U.S. Criminal Code. There's an express provision of the U.S. Criminal Code that holds torturers liable for torturing abroad. And we've cited that in our briefs. I know some of you are going to look at the legislative history, so let me say two quick things about the legislative history. First, Justice Kagan, with respect to Representative Leech's comment, if anyone after that hearing wanted to know what that committee thought the change it had made meant, and what the bill meant, it would have looked at its report. And if we've cited -- we've cited the committee reports in the Foreign Relations Committee, and it says the TVPA allows liability for any person that commits torture. It uses the word "person" utterly interchangeably with the word "individual". So that's -- whatever moment happened 4 years before the enactment was long since lost. And the reason it used ultimately the word "individual" and not "person", as I've described before, was to steer clear I think of any possibility of State entities. Mr. Gannon points to Monell, but Monell favors us. Monell holds that organizations can be liable. Now, there's a separate question that you talked about in the earlier argument, too, as to what the mens rea would be, whether it would have to be according to a policy or practice, or whether it would be pure respondeat superior. But Monell is on our side in this case, and we've alleged a policy in our complaint in this case. Thirdly, in the U.S. Code, where the word "individual" is used, it obviously means natural persons lots of times. But when it does, it almost always uses the -- contrasts it in that very sentence with an entity or organization. So in this course, when you say individuals or corporations, yes, you mean a natural person. But as the United States points out in footnote 3 of its own brief, the word "individual" when it is used alone is a less favored usage that actually gives rise to ambiguity because of the secondary meaning I've described before. And then finally, let me say the questions are asked about the relationship between this case and the Kiobel case, and I think it's absolutely clear -- and this goes again to one of Justice Kagan's questions on absurdity -- if this Court holds that the Alien Tort Statute would have let a torturer right by Mr. Rahim, someone who's tortured, that is, bring a cause of action, I think it would indeed be absurd to imagine Congress stepping in and passing a statute saying if you're an American citizen, I'm sorry, you're out of luck. But if you happen to be lucky enough to be an alien and never having tried to be a citizen in this country, go ahead and bring the case in our courts; we think that would be absurd. So with those points, if the Court has any further questions around the submissions I've made -- I guess the last thing I would say is, at the end of Mr. Gannon's argument, he referred to the interplay between the word "individual" and "person" in the briefs, and I can assure you from have having worked on this during the case, it is an incredible sideshow as to whether or not estates are people and all the ways that that works. But it's laid out in our brief, and we think that it's quite clear that there is no disjoint between the word "individual" and "person". If you look at our brief, it will explain why.
John G. Roberts, Jr.: Thank you, counsel. Counsel. The case is submitted.