Supreme Court Bars Creation of New Causes of Action Under Alien Tort Statute
Cisco Systems, Inc. v. Doe, No. 24-856
Today, the Supreme Court held in a 6-3 decision that courts cannot create new causes of action under the Alien Tort Statute and that the Torture Victim Protection Act does not create aiding-and-abetting liability.
Background: Plaintiffs faced alleged persecution by the Chinese government for their membership in Falun Gong, and they claimed that surveillance technology developed by Cisco Systems facilitated their persecution. They sued Cisco and its executives under the Alien Tort Statute (ATS), alleging that Cisco’s provision of its technology aided and abetted various international-law violations. One plaintiff also sued two Cisco executives under the Torture Victim Protection Act of 1991 (TVPA) for allegedly aiding and abetting torture. The district court dismissed the complaint, but the Ninth Circuit reversed. The panel majority held that the ATS and TVPA encompassed aiding-and-abetting liability. The court denied rehearing en banc with six judges dissenting.
Issue: (1) Whether the Alien Tort Statute (ATS), 28 U.S.C. § 1350, allows a judicially implied private right of action for aiding and abetting; and (2) whether the Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350 note, provides a private right of action for aiding and abetting.
Court’s Holding: In an opinion authored by Justice Barrett, and joined by Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh, the Supreme Court held that neither the ATS nor the TVPA creates a cause of action for aiding and abetting torture or other violations of international law. Although the Court acknowledged that “ATS and TVPA cases frequently involve heinous and inhumane acts,” it said that it is the role of the “political branches or other international actors”—not American courts—to redress those harms.
The ATS states that “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.” 28 U.S.C. § 1350. The Supreme Court has held that the ATS does not itself create private causes of action, but that it provides federal-court jurisdiction for otherwise-existing causes of action.
The Court began its analysis in this case by examining its 2004 decision in Sosa v. Alvarez-Machain, in which the Court held that the ATS encompasses three international-law actions identified by William Blackstone in the 18th century—“violation of safe conducts, infringement of the rights of ambassadors, and piracy.” Sosa also fashioned a test for identifying any new implied causes of action.
But the Court today observed that, in over two decades since Sosa, it had never found a new cause of action that satisfied the test. It “close[d] the door that Sosa cracked,” holding categorically that “[c]ourts cannot create new rights of action to remedy violations of international law” beyond the “Blackstone three.” And because courts cannot create new causes of action under the ATS, it held that “there is necessarily no liability for aiding and abetting violations.”
The Court grounded its holding in “judicial humility.” It reasoned that “Congress is better positioned than courts to evaluate the policy tradeoffs of creating liability,” which it said is “especially true” in contexts implicating foreign-policy concerns. And in line with many of the Court’s recent decisions, it questioned the propriety of judicially created causes of action. It said that, “[s]ince Sosa was decided, we have firmly committed to the view that judicially created causes of action offend the separation of powers in almost every circumstance. As a result, we have virtually eliminated the practice of fashioning them.” Moreover, the Court added, it is particularly unwarranted to read new causes of action into the ATA when Congress created an “alternative remedial structure” in the TVPA.
As to the TVPA, the Court said that “nowhere” does it mention aiding-and-abetting liability and “that silence is enough to settle the issue.” It reasoned that the TVPA provides an express cause of action that extends only to someone who “subjects” a person to torture, which the Court said does not encompass aiding and abetting.
Justice Sotomayor dissented, joined by Justices Kagan and Jackson on the ATS issue. She would have permitted the claims to proceed under both the ATS and the TVPA, and accused the majority of effectively overruling Sosa and “clos[ing] the courthouse doors” “to virtually every future litigant seeking redress for a violation of international law under the ATS.”
Justice Jackson, joined by Justice Kagan, filed a short opinion concurring in the judgment in part and dissenting in part. She agreed with Justice Sotomayor’s analysis of the ATS but agreed with the majority’s holding as to the TVPA.
The Court’s decision largely closes the door on corporate liability under the Alien Tort Statute, because virtually all claims against companies have been framed as aiding-and-abetting actions—asserting that a company somehow aided and abetted individuals or foreign officials who engaged in torture, forced labor, or other human rights violations. The decision also constitutes another example of the Court’s increasing refusal to infer rights of action in the absence of an express determination by Congress to create a claim actionable in court.
Read the opinion here.