Mohamad v. Palestinian Authority (11-88)
argument 11-88Mohamad v. Palestinian Authority
Supreme Court of the United States
50 min
5 speakers
8 chapters
transcribed 4 days ago
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Why did Congress use the word “individual” instead of “person” in the TVPA?
We'll hear argument next in Case 1188, Muhammad v. the Palestinian Authority. Mr. 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 tort statute that Congress has ever enacted, it is provided for organizational liability. As Justice Kennedy, I think you put it earlier, It's a simple concept in our country.
We usually like to begin with the language of the statute.
That was my next sentence.
Well, then go ahead.
Thank you. But, of course, the question arises in this case, why did Congress use the word individual? And we think the answer comes from the Tellerin case, which is the case, of course, from the 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.
And the word individual was used again and again to mean anyone but the state. And as Professor Jessup and many others said, it includes individuals. organizations, and juridical persons. And this is the usage that Judge Edwards used in his opinion in Telleran. He uses the word individual 43 times in that opinion. And if you look at nothing
else — Judge Edwards' opinion was about politically motivated terrorists not coming within the alien tort statute.
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 is that the PLO, as it then existed, was not a state actor. But the rule that Judge Edwards prescribed— and this is at page 793, I believe, of his concurrence, was that individuals acting under color of law should be held liable. That's 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.
Really? Congress got
it from Judge Edwards? Gee, my goodness. Well, I think, Justice Scalia, I think — I'll bet you none of them even read that
opinion. Well, I think Judge Edwards' opinion was quite prominently read by the Congressman. It's 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. That is a
strange phrase, honest services, as a crime deprivation of honest services. But the word individual is not a strange word at all. It's used all the time.
It
means
an
individual.
I think 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 the tort statute. So it is odd that it appears here. Is that better for you or worse for you? 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 — JUSTICE
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Chapters
8 chapters
1
Why did Congress use the word “individual” instead of “person” in the TVPA?
0:00–5:10
2
How does the Tellerian case influence the interpretation of “individual” liability?
5:10–11:09
3
What is the significance of the legislative history and committee reports for this statute?
11:09–17:05
4
Why does the Court consider the ordinary meaning of “individual” to exclude organizations?
17:05–22:55
5
How do the arguments about corporate versus personal liability shape the case?
22:55–30:07
6
What role does the Foreign Sovereign Immunities Act play in the TVPA analysis?
30:07–37:29
7
How does the Court address the potential absurd results of a narrow reading?
37:29–43:59
8
What are the final conclusions on whether Congress intended to limit liability to natural persons?
43:59–50:34