Solicitor General Recommends Granting Cert in Cisco
December 16, 2025
In Doe v. Cisco Systems Inc. (2023), the Ninth Circuit held that claims for aiding and abetting human rights violations could be brought under the Alien Tort Statute (ATS) against Cisco Systems and under the Torture Victim Protection Act (TVPA) against Cisco’s former CEO. The plaintiffs allege that Cisco designed, built, and maintained a surveillance system that the Chinese government used to surveil and persecute practitioners of Falun Gong.
In January, Cisco asked the Supreme Court to review and reverse the Ninth Circuit. As I explained then, although Cisco’s petition does not meet the traditional criteria for granting cert, there is a good chance that the Court will take the case in order to further limit the ATS cause of action. In May, the Court called for the views of the Solicitor General. And on December 9, the SG filed a brief recommending that the Court grant cert on two of the three questions presented in the petition, further increasing the chances that the Court will hear the case.
A Bit of Background
For those not familiar with human rights litigation in U.S. courts, a bit of background may be helpful. The ATS is a jurisdictional statute that Congress enacted in 1789 as part of the first Judiciary Act. As codified today, it reads: “The district courts shall have original jurisdiction of 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.” Federal courts began using this jurisdictional grant in 1980 to hear cases based on human rights violations abroad. In Sosa v. Alavarez-Machain (2004), the Supreme Court recognized an implied cause of action under the ATS for violations of well-established norms of human rights. Since Sosa, the Court has heard three more ATS cases. The Court limited the ATS cause of action by holding that it does not apply to foreign corporations and requires substantial conduct in the United States. Nonetheless, five justices have indicated that U.S. corporations can be sued.
The TVPA, which Congress passed in 1992, grants an express cause of action against “[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation … subjects an individual to torture … or … extrajudicial killing.” In Mohamad v. Palestinian Authority (2012), the Supreme Court held that the cause of action applies only to natural persons, which means that the TVPA cannot be used to sue corporations.
The Ninth Circuit’s Decision
The Ninth Circuit’s decision in Cisco has three main holdings. First, the Ninth Circuit joined the Second, Fourth, and Eleventh Circuits by holding that claims for aiding and abetting human rights violations can be brought under the ATS. Aiding and abetting such violations is itself a violation of a well-established norm of international law, the court reasoned, and thus actionable under Sosa. And prudential concerns do not counsel against recognizing such claims (as Sosa suggested such concerns might) because the defendant is a U.S. corporation, not the foreign state.
Second, the Ninth Circuit held that the aiding and abetting standard for mens rea (the defendant’s mental state) is knowledge that the defendant’s actions will substantially assist the human rights violation. This holding agrees with the Eleventh Circuit but disagrees with the Second and Fourth Circuits, which have embraced a more demanding “purpose” standard, requiring that the defendant acted with the purpose of assisting the human rights violation.
Third, the Ninth Circuit held that aiding and abetting claims could be brought under the TVPA. The court noted that the statutory phrase “subjects an individual to torture” is broader than “inflicts torture” and thus extends to persons who helped bring the torture about. The legislative history states that the TVPA provides a cause of action “against persons who ordered, abetted, or assisted in the torture.” And the Supreme Court in Mohamad noted that “the TVPA contemplates liability against officers who do not personally execute the torture or extrajudicial killing.”
Cisco’s cert petition asks the Supreme Court to review all three questions.
The Solicitor General’s Brief
The SG’s brief recommends that the Supreme Court decide whether aiding and abetting claims are actionable under the ATS and the TVPA but counsels against addressing the mens rea standard. Thus, somewhat counterintuitively, the SG recommends that the Court deny cert on the one question on which the lower courts are divided, and grant cert on the two questions on which they are not.
Aiding and Abetting Under the ATS
The SG’s position on aiding and abetting under the ATS is not a surprise. As the brief notes, the U.S. government first opposed allowing aiding and abetting claims under the ATS in 2008. In Nestlé USA Inc. v. Doe (2021), the SG again tried (and failed) to get the Supreme Court to reject aiding and abetting liability. The brief acknowledges that four circuits have recognized aiding and abetting liability under the ATS—five if one counts the subsequently vacated decision of the D.C. Circuit in Doe VIII v. Exxon Mobil Corp. (2011)—and that none has rejected it. But the brief points to dissents from some lower court judges, including Judge Bumatay’s dissent from denial of rehearing en banc in Cisco and then-Judge (now Justice) Kavanaugh’s dissent in Exxon.
The SG argues that the lower courts are mistaken for three reasons. According to the brief, (1) whether to recognize secondary liability is for Congress to decide; (2) aiding and abetting liability requires courts to judge the lawfulness of a foreign government’s actions even if the government is not technically a defendant; and (3) the closest statutory analogy—the TVPA—does not allow aiding and abetting claims (more on this below).
Critical to the SG’s arguments is his assumption that aiding and abetting liability is a question of domestic rather than international law. The brief relies heavily on the Supreme Court’s decision in Central Bank of Denver v. First Interstate Bank of Denver (1994), holding that there is no presumption in favor of aiding and abetting liability for civil statutes. The Ninth Circuit found Central Bank inapposite because aiding and abetting human rights violations is itself a violation of international law that is actionable under Sosa. The SG answers with a non-sequitur that assumes what he needs to prove. Quoting Judge Bumatay’s dissent, the SG argues that international law provides the norms while domestic law provides the liability. Although that is true for some issues, the distinction does not work when the norm itself is a prohibition against aiding and abetting. Aiding and abetting is not simply question of secondary liability under a federal statute; it is a “tort … committed in violation of the law of nations” within the plain text of the ATS.
The SG’s second argument picks up on Judge Morgan Christen’s partial dissent from the panel opinion below. The basic idea is that aiding and abetting liability would interfere with U.S. foreign relations because it would challenge the acts of a foreign government as unlawful even though the foreign government is not a defendant. It may be worth recalling that the Supreme Court rejected a similar argument with respect to the act of state doctrine in W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., International (1990). “Regardless of what the court’s factual findings may suggest as to the legality of the Nigerian contract,” Justice Scalia wrote for a unanimous court, “its legality is simply not a question to be decided in the present suit, and there is thus no occasion to apply the rule of decision that the act of state doctrine requires.”
The SG’s argument that “aiding-and-abetting claims offer plaintiffs a means for evading the limitations of sovereign immunity and challenging acts taken by foreign states and officials abroad” is far-fetched. Sovereign immunity protects foreign states and officials from the burdens of litigation, not from the possibility of embarrassment. If a foreign state’s action were truly being challenged, it would be a required party under Federal Rule of Civil Procedure 19, and the Foreign Sovereign Immunities Act would require dismissal if the foreign state could not be joined.
Aiding and Abetting Under the TVPA
The SG had not previously taken a position on aiding and abetting liability under the TVPA. His position on the merits does not surprise me, though the recommendation to grant cert does. As with aiding and abetting under the ATS, there is no circuit split on this question. Indeed, earlier this year, the First Circuit agreed with the Ninth that aiding and abetting claims may be brought under the TVPA.
Unlike aiding and abetting under the ATS, which turns on international law (see above), aiding and abetting under the TVPA is a question of domestic statutory interpretation to which Central Bank is potentially relevant. The problem is that Central Bank does not say what the SG thinks it says. As the Ninth Circuit pointed out, Central Bank holds only that there is no presumption in favor of aiding and abetting liability for civil statutes, but not that there is a presumption against such liability. Instead, Central Bank says each statute must be evaluated on its own terms. As noted above, that is what the Ninth Circuit did, looking to the broad “subjects … to” language of the TVPA, the statute’s legislative history expressly discussing liability for persons who “abetted” torture, and the Supreme Court’s observations in Mohamad.
The SG counters with a textual point of his own, noting that the TVPA defines “torture” as “any act, directed against an individual in the offender’s custody or physical control” that causes severe pain. “[T]hose who aid and abet generally will not have either direct or indirect custody or control of the victims,” he notes. This argument assumes that Congress equated “offender” with the “individual” being sued. However, Congress’s use of a different word “offender,” which appears just this once in the TVPA, cuts the other way. Additionally, this argument does not work for extrajudicial killing, since no similar language appears in the TVPA’s definition of that offense. And, of course, the legislative history referring specifically to persons who “abetted … torture” suggests that Congress did not think that the defendant needed to have custody of the victim even for torture. “Offender,” it seems, refers to the person who inflicts torture, whereas the class of persons who may “subject an individual to torture” is broader.
The Standard for Mens Rea
On the mens rea standard for aiding and abetting liability, the SG suggests that the Supreme Court should deny cert. As noted above, this is the one question in the case on which the lower courts are divided, with some adopting a “knowledge” standard and others a “purpose” standard.
The SG reasons that this question “will be relevant only if the Court’s decision about the first question recognizes aiding-and-abetting liability under the ATS.” This is true, but such a possibility seems like a reason to consider the question rather than not to do so. In addition, the SG argues, the Court’s resolution of the first question “is likely to bear significantly on how to resolve the mens rea question.” True again. But, if the Court grants cert on the mens rea question, it can always decide later either to remand or to address those implications itself, whereas, if it denies review, it denies itself that choice.
I suspect that something else lies behind the recommendation to deny cert on this question. Perhaps the U.S. government is not sure what its position should be on mens rea. Or perhaps the government fears that considering this question will focus too much attention on the content of customary international law, undermining central assumption that aiding and abetting is just a question of domestic law.
Conclusion
As I wrote in January when Cisco filed its petition, applying traditional standards for granting cert, Cisco’s petition should be denied. But it takes only four votes to grant cert. Justices Thomas, Gorsuch, and Kavanaugh have already said that they would overrule Sosa and limit the ATS to torts like piracy and assaults on ambassadors that were recognized as violations of the law of nations in the eighteenth century. Justice Alito has also shown sympathy for this view. To these four at least, another chance to limit human rights suits under the ATS may seem too good to pass up.