Supreme Court Limits Civil Suits Under Alien Tort Statute

Why it matters locally: The Supreme Court's decision limiting civil lawsuits under the Alien Tort Statute could impact California-based technology companies, such as Cisco Systems, which was at the center of this case, by reducing their liability for alleged human rights violations committed by foreign governments.

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WASHINGTON – The Supreme Court on June 23 restricted the scope of the Alien Tort Statute (ATS), ruling that corporations and government officials cannot face civil lawsuits under the statute for facilitating violations of international human rights. This decision stemmed from *Cisco Systems, Inc. v. Doe*. The case involved allegations that Cisco Systems provided mass surveillance technology to Chinese authorities. Plaintiffs, who identified as Falun Gong members, claimed this technology enabled the identification of practitioners, leading to their persecution, including torture and detention in "reeducation camps." The central question before the Court involved whether the ATS allowed lawsuits against domestic corporations accused of aiding and abetting human rights violations committed by foreign governments. The Alien Tort Statute, initially enacted in 1789, grants federal district courts "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." After being largely unused for nearly two centuries, courts began applying the ATS in modern international human rights litigation starting in 1980. In 2004, the Supreme Court addressed the ATS in *Sosa v. Alvarez-Machain*. In that case, Justice David Souter, writing for the Court, stated that the ATS was more than a jurisdictional statute. The Court concluded that the First Congress would have expected federal courts to allow lawsuits based on a grant of jurisdiction. *Sosa* also indicated that causes of action based on "the law of nations" could evolve. Justice Souter suggested that any new causes of action should align with characteristic features of the three actions recognized in the late 18th century: piracy, assaults on ambassadors, and violations of safe conduct for foreigners. *Sosa*'s guidelines required new causes of action to demonstrate a consensus among nations, a basic component of customary international law, and to be based on a norm articulated with specificity. These criteria allowed for suits concerning violations such as torture, slavery, and prolonged arbitrary detention. Subsequent Supreme Court decisions limited the ATS. In *Kiobel v. Royal Dutch Petroleum Co.*, the Court determined the ATS did not apply to violations occurring outside the United States. Later, in *Jesner v. Arab Bank, PLC*, the Court ruled that victims of human rights violations could not sue foreign corporations. The recent *Cisco Systems* decision, a 6-3 vote, directly addressed whether the ATS permitted victims to sue domestic corporations or private parties for aiding and abetting state human rights violations. The court determined it did not. Justice Amy Coney Barrett authored the majority opinion. Justice Barrett's opinion provided two main reasons for the decision. She characterized *Sosa*'s second step as requiring courts to assess "practical consequences" and "risks of adverse foreign policy consequences" when creating new liability under the ATS. She stated that recognizing aiding and abetting liability would consistently risk adverse foreign policy consequences, partly due to the involvement of foreign state human rights violators and concerns about “unwarranted judicial interference in the conduct of foreign policy.” Additionally, Justice Barrett’s opinion asserted that the power to create causes of action rests with Congress, citing separation of powers. Justice Sonia Sotomayor dissented, stating that applying *Sosa* as written would compel recognition of aiding and abetting liability. While accepting the majority's characterization of *Sosa*'s foreign policy implications, Justice Sotomayor disagreed that aiding and abetting liability would always have negative impacts on U.S. foreign policy, advocating for case-by-case assessment. She cited evidence suggesting that holding parties accountable for aiding and abetting Chinese human rights violations aligns with stated U.S. foreign policy. She also argued that aiding and abetting for serious human rights violations holds near-universal international consensus. Justice Sotomayor further contended that the majority had effectively overturned *Sosa* without applying the standard criteria for overturning precedent, such as whether the prior decision was unsound or unworkable. She emphasized that *Sosa* accurately reflected the First Congress's intent that federal courts would develop causes of action based on evolving customary international law, rather than usurping congressional authority. Legal analysts note that the *Cisco Systems* decision effectively limits the ATS to the three types of causes of action recognized in the late 18th century.