Cisco’s Cert Petition
February 4, 2025
Last Friday, January 31, 2025, Cisco Systems filed a petition for certiorari asking the Supreme Court to review the Ninth Circuit’s decision in Doe v. Cisco Systems, Inc. (2023), a decision holding that claims of aiding and abetting may be brought under the Alien Tort Statute (ATS) and Torture Victim Protection Act (TVPA).
As more fully described in a prior post, the complaint alleges that Cisco and its CEO aided and abetted human rights violations in China by designing and building a surveillance system for the Chinese government to identify practitioners of the banned religious movement Falun Gong. Although the Supreme Court has repeatedly narrowed the implied cause of action under the ATS, this complaint fit squarely within those limits because the plaintiffs sued a U.S. company and alleged substantial conduct in the United States. The TVPA came into play because one of the plaintiffs is a U.S. citizen who is not covered by the ATS. The TVPA does not apply to corporations but was invoked in this case to sue Cisco’s CEO.
The Ninth Circuit’s decision in Cisco has three main holdings. First, the court held that claims for aiding and abetting human rights violations can be brought under the ATS. Second, the court held that the mens rea standard for such claims is knowledge rather than purpose. And third, the court held that aiding and abetting claims can also be brought under the TVPA.
Cisco’s cert petition challenges each of these holdings. As discussed below, none of Cisco’s claims appears to be cert-worthy under the standards that the Supreme Court traditionally applies. But it only takes four votes to grant cert. And some of the Justices may find it hard to resist this chance to give another blow—perhaps a fatal one—to corporate liability under the ATS.
Aiding and Abetting Claims Under the ATS
Cisco first argues that the Ninth Circuit was wrong to allow any aiding and abetting claims to proceed under the ATS. Citing the plurality opinion in Nestlé U.S.A., Inc. v. Doe (2021), Cisco asserts that “no claims are available under the ATS beyond the three recognized at the time of its adoption”—specifically, infringement of the rights of ambassadors, violations of safe conducts, and piracy—“and others subsequently created by Congress.” But in Nestlé, that position won only three votes (Justices Thomas, Gorsuch, and Kavanaugh), and it directly conflicts with the Court’s earlier 6-3 decision in Sosa v. Alvarez-Machain (2004). Sosa held that federal courts can recognize ATS claims “based on the present-day law of nations [that] rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms.”
The cert petition relies on recent cases holding that federal courts should not create implied causes of action if there is any reason to think that the question would be better left to Congress. But all of those cases involved the implied cause of action for constitutional violations under Bivens, not the ATS. Moreover, petitioners made precisely the same argument in Nestlé where it, again, won only three votes.
Cisco also argues that the Supreme Court’s decision in Central Bank of Denver N.A. v. First Interstate Bank of Denver, N.A. (1994) forecloses civil aiding and abetting liability unless Congress expressly provides for it. The problem with this argument, as the Ninth Circuit noted, is that aiding and abetting claims under the ATS do not depend on the interpretation of a statutory cause of action but on the content of international law. The ATS expressly permits tort claims for violations of “the law of nations.” No one—not even Cisco—claims that aiding and abetting human rights violations is not a well-established violation of customary international law.
Next, Cisco argues that permitting aiding and abetting claims under the ATS raises foreign policy concerns because such claims require finding that a foreign government violated international law, even though the foreign government is not a party. In this case, however, there is no conflict with U.S. policy. The United States has long condemned China’s persecution of Falun Gong. In 2020, for example, the Trump Administration called on the PRC government “to immediately end its depraved abuse and mistreatment of Falun Gong practitioners,” stating that “[t]wenty-one years of persecution of Falun Gong practitioners is far too long, and it must end.” Cisco maintains that its conduct was consistent with U.S. policy because U.S. export regulations did not then bar exports of computer networking hardware and software to China for crime control. (They do now, in part because of human rights concerns.) But it should be obvious that a license to export does not absolve an exporter from all liability for the exported product.
One argument that Cisco does not make is that Supreme Court review of this question is necessary to resolve a circuit split, one of the traditional reasons for granting cert. That is because there is no circuit split. Every circuit to have addressed whether aiding and abetting claims are cognizable under the ATS has answered yes—not just the Ninth Circuit in this case but also the Second, Fourth, and Eleventh Circuits.
The Mens Rea Standard for Aiding and Abetting
The circuits are split, however, on the mens rea requirement for aiding and abetting. The Second and Fourth Circuits have held that the defendant must act with the purpose of facilitating the crime, whereas the Eleventh Circuit has held that liability requires only knowledge that the defendant’s actions will facilitate the crime. Because the ATS applies to torts in violation of “the law of nations,” the answer must be found in international law, as Cisco itself acknowledges.
As the Ninth Circuit explained, the decisions of international tribunals from Nuremberg to the International Criminal Tribunal for the Former Yugoslavia clearly show that customary international law adopts a knowledge standard for aiding and abetting liability. (Chimène Keitner reached the same conclusion in a 2008 article that is worth reading.) The Second Circuit went astray (and the Fourth followed it) by looking to Article 25 of the Rome Statute establishing the International Criminal Court, which adopts a purpose standard for aiding and abetting. But the Rome Statute was never intended as a restatement of customary international law. This is reflected in Article 10, which states that it should not “limit[] or prejudic[e] in any way existing or developing rules of international law for purposes other than this Statute.” In other words, the Ninth Circuit got the answer to this question right.
Despite the circuit split, Cisco would not be an appropriate vehicle for the Supreme Court to resolve the question. That is because the Ninth Circuit expressly stated that it would likely have reached “the same conclusion” under a purpose standard. “[T]hese same allegations,” the court noted, “are likely sufficient to state a plausible claim that Cisco acted with the purpose of facilitating the violations of international law.” The Supreme Court does not typically review questions of law that will have no effect on the outcome of a case.
Aiding and Abetting Under the TVPA
Finally, Cisco argues that the Ninth Circuit erred in allowing aiding and abetting claims under the TVPA. That statute provides that “[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation … subjects an individual to torture shall, in a civil action, be liable for damages to that individual.” Again, Cisco leans heavily on Central Bank of Denver. That decision is potentially relevant to interpreting the TVPA’s express cause of action (in contrast to its irrelevance with respect to the ATS discussed above).
But as the Ninth Circuit explained, several things distinguish the TVPA from the statutory provision at issue in Central Bank of Denver. First, the text of the TVPA extends liability beyond the torturer himself. Dictionary definitions of “subjects” include causing someone to undergo an experience. “If Congress had intended to restrict TVPA liability to those who themselves intentionally commit acts causing severe pain or suffering,” the court noted, “it could have used the term ‘tortures’ or ‘inflicts torture’ in … the liability provision.” In fact, the Supreme Court noted in Mohamad v. Palestinian Authority (2012) “that the TVPA contemplates liability against officers who do not personally execute the torture or extrajudicial killing.”
Second, in contrast to Central Bank of Denver, the legislative history of the TVPA expressly states that the act permits “lawsuits against persons who ordered, abetted, or assisted in the torture” (emphasis added). Third, the TVPA was expressly intended to implement the Convention Against Torture, Article 4 of which extends liability “to an act by any person which constitutes complicity or participation in torture.”
As with the first question presented, there is no circuit conflict on whether aiding and abetting claims can be brought under the TVPA. The Ninth Circuit addressed the question as a matter of first impression. Typically, the Supreme Court would allow more “percolation” of such a question before granting review.
Conclusion
By traditional standards, Cisco’s petition for cert should be denied. But denial is hardly a foregone conclusion. The U.S. Solicitor General’s Office has previously urged the Supreme Court to address aiding and abetting liability under the ATS and TVPA and, if asked, would likely support a grant of cert here.
Justices Thomas, Gorsuch, and Kavanaugh have previously favored rolling back the ATS to the three paradigm violations that the First Congress had in mind. And, although he did not join them in Nestlé, it seems likely that Justice Alito would take the same position. Those four votes would be enough to grant cert.