Fallout from Cisco in Human Rights Cases, Part II: Cisco on Remand
September 10, 2026
It is no surprise that the U.S. Supreme Court’s decision in Cisco Systems Inc. v. Doe (2026), which closed the door on modern human rights claims under the Alien Tort Statute (ATS), is impacting cases in the lower courts. Yesterday, I discussed the impact on Al Shimari v. CACI Premier Technology, Inc., where the Fourth Circuit overturned a verdict awarding $42 million to detainees tortured at Abu Ghraib prison in Iraq.
Today’s post focuses on Cisco itself. On remand to the Ninth Circuit, the parties filed supplemental briefs addressing whether the plaintiffs’ state-law tort claims may still proceed under the ATS’s grant of subject-matter jurisdiction. (Disclosure: I joined an amicus brief supporting the Cisco plaintiffs on this question.)
Cisco on Remand
Yesterday’s post gave some background on the ATS and the Supreme Court’s Cisco decision, which readers interested in more details may want to consult. I will repeat just three critical points here. First, the ATS is a provision of the first Judiciary Act of 1789 that grants federal courts subject-matter jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Second, the Supreme Court in Ciscoheld that courts may not create implied causes of action under federal common law for violations of modern international law. Third, the Court in Cisco reaffirmed that the ATS is a jurisdictional statute.
The Court remanded Cisco “for further proceedings consistent with this opinion.” On remand, plaintiffs asserted that their state-law tort claims survive the Court’s decision, which extinguished only the implied cause of action under federal common law. The Ninth Circuit panel ordered supplemental briefs, which were filed September 2.
Plaintiffs’ Brief
The Cisco plaintiffs brought three claims under state law, for assault, battery, and false imprisonment, in addition to their claims under the ATS. When the district court dismissed the ATS claims in 2014, it declined to exercise supplemental jurisdiction (which is discretionary) over the state-law claims. The plaintiffs now argue that the district court has jurisdiction over the state-law claims under the ATS (which is not discretionary). All the Supreme Court did in Cisco, they note, is hold that courts cannot create implied causes of action under federal common law for modern human rights claims. The Court did not construe or limit the ATS’s grant of subject-matter jurisdiction. Indeed, the Court reaffirmed “that the ATS is a jurisdictional statute,” and it is well established that federal courts have a “virtually unflagging obligation” to exercise the jurisdiction that Congress has given them.
Plaintiffs’ state-law claims fall squarely within the ATS’s grant of subject-matter jurisdiction: (1) all but one of the plaintiffs are non-U.S. citizens (“aliens”); (2) assault, battery, and false imprisonment are torts; and (3) those torts were committed in violation of customary international law, which prohibits torture and prolonged arbitrary detention, among other things. Exercising jurisdiction over state-law torts is also consistent with the original understanding of the ATS, plaintiffs argue, because the First Congress wanted to create a federal forum for tortious conduct that violated international law.
Finally, plaintiffs offer two Article III bases for federal courts to hear state-law claims under the ATS. First, they argue that ATS cases arise under federal law for purposes of Article III, not because the court will apply substantive federal law to decide the case but because a court must determine at the outset of each case, as a matter of federal law, whether the alleged tort violates the law of nations or a treaty of the United States. Plaintiffs analogize to Verlinden B.V. v. Central Bank of Nigeria (1983), which held that federal courts may hear non-federal claims against foreign states under the Foreign Sovereign Immunities Act (FSIA) because, “[a]t the threshold of every action …, the court must satisfy itself that one of the [FSIA’s] exceptions applies.”
Second, they argue that the ATS is a valid exercise of “protective jurisdiction” because federal court jurisdiction “is critical to achieve an important federal policy within the realm of congressional authority.” The Supreme Court has never adopted the theory of “protective jurisdiction,” expressly reserving the question in Verlinden and a later case. But Professor William Casto made a powerful argument forty years ago that protective jurisdiction supports the ATS.
Another argument that the plaintiffs might have raised is alienage jurisdiction. Article III extends the federal judicial power to controversies “between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” The Ciscoplaintiffs are citizens of a foreign state (China) and are suing a U.S. company that is a citizen of California. Academic critics of modern human rights litigation have acknowledged such an alienage foundation for the ATS. Curt Bradley has argued “that at least the law of nations portion of the Alien Tort Statute was an implementation of Article III alienage jurisdiction,” while A.J. Bellia and Brad Clark have concluded that “the ATS must rest on … alienage jurisdiction under Article III.” Justice Gorsuch’s concurring opinion in Jesner v. Arab Bank PLC (2018) also took this view. To be sure, the alienage jurisdiction reading of the ATS would support only claims against U.S. defendants, but Cisco is just such a defendant.
Defendants’ Brief
Defendants argue that plaintiffs forfeited the argument that the ATS provides subject-matter jurisdiction over their state-law claims by not raising that argument before the district court. The obvious response is that such an argument was not necessary under Sosa, when modern human rights claims were cognizable under the ATS and a federal court could therefore exercise supplemental jurisdiction over related state-law claims. As plaintiffs argue in their brief, the Supreme Court’s decision in Cisco overruling Sosa is a significant change in the law that should allow plaintiffs to assert a new jurisdictional basis for their state-law claims.
Defendants also argue that reviving the state-law claims would contravene the Supreme Court’s mandate on remand. This is hard to understand. The Supreme Court’s decision in Cisco addressed only the scope of the implied, federal-common-law cause of action under the ATS. It said nothing about state-law claims. Considering such claims on remand is perfectly consistent with the Court’s Cisco decision.
On the merits, defendants do not contest that reading the ATS to cover state-law claims is consistent with the plain text of the provision. Rather, they argue that this reading would violate Article III. In response to plaintiffs’ “arising under” argument, defendants claim that Verlinden is distinguishable because the FSIA is not just a jurisdictional statute but also codifies the substantive law of state immunity. In response to plaintiffs’ protective jurisdiction argument, defendants observe in a footnote that the Supreme Court has never adopted such a theory. Defendants, like plaintiffs, do not address alienage as a basis for Article III jurisdiction in this case.
Defendants close with a broad reading of Cisco. They write: “[A]ppellants’ theory would, in effect, read the ATS to allow private causes of action in federal court for violations of the law of nations. Yet that is exactly what the Supreme Court rejected in Cisco.” I disagree. What the Supreme Court rejected in Cisco was an implied federal cause of action, reasoning that it is for Congress rather than federal courts to decide when to allow human rights claims. Cisco says nothing about state-law claims.
There is no doubt that California tort law applies to the actions of a California corporation in California. (Given the case’s connection to China, there is of course a choice-of-law question to be resolved using California’s choice-of-law rules.) If the defendants are right that state-law claims cannot be brought in federal court, those claims would have to be brought in state court. Yet that is precisely what the First Congress sought to avoid when it passed the ATS.
The Original Understanding
The original understanding of the ATS is addressed in the legal history amicus brief that I joined. Rather than repeat all those arguments here, I will simply offer my take.
The founding generation was acutely concerned that the federal government be able to address violations of the law of nations and treaties, in part because such violations were considered a just cause for war. As the Supreme Court recounted in Sosa, incidents like the 1784 Marbois Affair, in which a French diplomat was assaulted on the streets of Philadelphia, exposed the incapacity of the national government under the Articles of Confederation to address such concerns. Marbois’s assailant had to be prosecuted in Pennsylvania state court for common-law violations of the law of nations because no federal court had jurisdiction.
The Philadelphia Convention responded by drafting a Constitution that, among other things, gave Congress power “[t]o define and punish … Offences against the Law of Nations” and authorized creation of federal courts with jurisdiction over a wide range of international cases. The First Congress followed through by criminalizing many law-of-nations violations (including assaults on diplomats) and by creating federal courts with jurisdiction over many of those international cases, including “any action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” In any repeat of the Marbois Affair, the assailant could be prosecuted for violating federal criminal law and sued for damages in federal court under the ATS.
The applicable law in such an ATS case would be common law. (If the cause of action arose abroad, it could alternatively be foreign law under the transitory tort doctrine.) Marbois’s assailant was prosecuted for violating the common law, which incorporated the law of nations, and a tort action against him would have been governed by the same law. Of course, the common law of the time was general common law. The Supreme Court’s decision in Erie Railroad Co. v. Tompkins(1938) ended the era of general common law administered jointly by federal and state courts. So today, Marbois’s tort claim would be governed by Pennsylvania’s common law of torts.
The ATS does not address the substantive law that governs tort actions brought under it. As the Supreme Court emphasized in Sosa and Cisco, it is a purely jurisdictional statute. If the prerequisites for subject-matter jurisdiction are met (because the plaintiff is an “alien” and the tort was “committed in violation of the law of nations or a treaty of the United States”), the plaintiff may avail herself of any cause of action in tort, whether based in common law, statutory law, or foreign law. The specific aim of the ATS was to create a federal forum for such actions, so that the federal government would not have to rely on state courts to provide redress.
Conclusion
It seems beyond obvious to me that the ATS covers tort claims under state and foreign law. That is what the text says and what the history indicates. The Supreme Court’s decision in Cisco eliminated the implied, federal cause of action under the ATS, but this did not affect causes of action based in other sources of law. Of course, Article III must also be satisfied. But even if the Ninth Circuit rejects plaintiffs’ federal question and protective jurisdiction arguments, Article III’s grant of alienage jurisdiction supports applying the ATS in Cisco at least.