Reply Brief — NSO Group Technologies Limited, et al., Petitioners v. WhatsApp Inc., et al.

No. 21-1338

In the

Supreme Court of the United States

________________

NSO GROUP TECHNOLOGIES LIMITED AND

Q CYBER TECHNOLOGIES LIMITED,

v.

Petitioners,

WHATSAPP INC. AND META PLATFORMS, INC.,

Respondents.

________________

On Petition for Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

________________

REPLY BRIEF FOR PETITIONERS

________________

Joseph N. Akrotirianakis

Aaron Craig

Zachary W. Byer

KING & SPALDING LLP

633 W. 5th Street

Suite 1600

Los Angeles, CA 90071

Jeffrey S. Bucholtz

Counsel of Record

KING & SPALDING LLP

1700 Pennsylvania Ave. NW

Washington, DC 20006

(202) 737-0500

jbucholtz@kslaw.com

Matthew V.H. Noller

KING & SPALDING LLP

50 California Street

Suite 3300

San Francisco, CA 94105

Counsel for Petitioners

May 16, 2022

TABLE OF CONTENTS

Table of Authorities .................................................... ii

Reply Brief for Petitioners ......................................... 1

I.

The Ninth Circuit’s decision conflicts with

decisions from other circuits. .............................. 2

II. This case is an ideal vehicle to resolve the

important question presented. ............................ 5

III. The decision below conflicts with Samantar. ... 11

IV. The Court should consider inviting the

Solicitor General’s views. .................................. 12

Conclusion................................................................. 13

ii

TABLE OF AUTHORITIES

Cases

Boyle v. United Techs. Corp.,

487 U.S. 500 (1988).................................................. 5

Broidy Cap. Mgmt. LLC v. Muzin,

12 F.4th 789 (D.C. Cir. 2021) ........................ 4, 5, 10

Butters v. Vance Int’l, Inc.,

225 F.3d 462 (4th Cir. 2000).................................... 3

Doğan v. Barak,

932 F.3d 888 (9th Cir. 2019).................................. 10

Farhang v. Indian Inst. of Tech.,

655 F. App’x 569 (9th Cir. 2016) ........................... 10

Federal Republic of Germany v. Philipp,

141 S. Ct. 703 (2021)................................................ 9

Herbage v. Meese,

747 F. Supp. 60 (D.D.C. 1990) ................................. 8

In re KBR, Inc.,

893 F.3d 241 (4th Cir. 2018).................................... 5

Ivey ex rel. Carolina Golf Dev. Co. v. Lynch,

No. 17CV439, 2018 WL 3764264

(M.D.N.C. Aug. 8, 2018) .......................................... 4

Mangold v. Analytic Servs., Inc.,

77 F.3d 1442 (4th Cir. 1996).................................... 7

Moriah v. Bank of China Ltd.,

107 F. Supp. 3d 272 (S.D.N.Y. 2015) ...................... 4

Nixon v. Fitzgerald,

457 U.S. 731 (1982)................................................ 10

iii

Ohio Citizens for Responsible Energy, Inc.

v. Nuclear Regul. Comm’n,

479 U.S. 1312 (1986).............................................. 10

Rishikof v. Mortada,

70 F. Supp. 3d 8 (D.D.C. 2014) ................................ 8

Safe Air for Everyone v. Meyer,

373 F.3d 1035 (9th Cir. 2004).................................. 8

Saleh v. Titan Corp.,

580 F.3d 1 (D.C. Cir. 2009) ...................................... 5

Samantar v. Yousuf,

560 U.S. 305 (2010).................................... 3, 7, 9, 11

Saudi Arabia v. Nelson,

507 U.S. 349 (1993).................................................. 9

Velasco v. Gov’t of Indonesia,

370 F.3d 392 (4th Cir. 2004).................................... 3

Yousuf v. Samantar,

699 F.3d 763 (4th Cir. 2012).............................. 4, 10

Statutes

28 U.S.C. § 1254(1) ................................................... 10

28 U.S.C. § 1291 ....................................................... 10

28 U.S.C. § 1603 ....................................................... 11

Other Authorities

1 Ved P. Nanda et al.,

Litigation of International Disputes in

U.S. Courts § 3:59 (updated Feb. 2022) .................. 4

iv

Brief for the United States as

Amicus Curiae, Mutond v. Lewis,

No. 19-185 (U.S. May 26, 2020),

2020 WL 2866592 ................................................ 6, 9

Brief for the United States as

Amicus Curiae, Odhiambo

v. Republic of Kenya, No. 14-1206

(U.S. May 24, 2016), 2016 WL 2997336.................. 6

Statement of Interest,

Rosenberg v. Lashkar-E-Taiba,

No. 1:10-cv-05381

(E.D.N.Y. Dec. 17, 2012), ECF 35 ........................... 9

Statement of Interest,

Matar v. Dichter, No. 05 Civ. 10270

(S.D.N.Y. Nov. 17, 2006), ECF 36 ........................... 9

U.S. Small Bus. Admin.,

Become a Federal Contractor,

https://bit.ly/39b6hq4 ............................................... 6

REPLY BRIEF FOR PETITIONERS

In an attempted end-run around foreign sovereign

immunity, Respondents sued a foreign government

contractor as a proxy for the governments that use the

contractor’s technology. C.A. ER 53, 96. In the Fourth

or D.C. Circuits, the defendant could have sought

common-law conduct-based immunity as an agent of

foreign governments. But the Ninth Circuit created a

split of authority by holding that, unlike private

individuals, entities can receive immunity only if they

are components of a “foreign state” under the Foreign

Sovereign Immunities Act (“FSIA”)—leaving private

entities that serve the same functions as governmentowned entities categorically ineligible for immunity.

App. 12, 17-19.

That decision, which conflicts with this Court’s

precedent, is dangerously wrong. Precluding private

entities from seeking common-law conduct-based

immunity will not merely hinder foreign governments

from contracting with private entities. It also will

impede the United States’ ability to protect its

national security, because the government relies

heavily on private contractors to provide the

technology and expertise necessary to defend the

nation against foreign and domestic threats. This

Court’s intervention is imperative.

To distract from the circuit split and the drastic

consequences created by the decision below,

Respondents point—over and over again—to the fact

that NSO is on the Commerce Department’s Entity

List. But NSO’s petition presents a pure legal

question: Does common-law immunity for private

entities survive the FSIA? The decision below is

2

absolute in precluding entities from invoking commonlaw immunity regardless of the nature of their work

as government agents: “If an entity does not fall

within the [FSIA’s] definition of ‘foreign state,’ it

cannot claim foreign sovereign immunity. Period.”

App. 12. Given that absolute, threshold holding,

NSO’s petition asks the Court only to decide whether

the common law governs NSO’s claim of immunity—

not to apply the common law and decide, in the first

instance, the merits of NSO’s claim. The Ninth

Circuit’s holding covers every government contractor

providing humanitarian aid, life-saving medical care,

or military support. In the Ninth Circuit, a foreign

contractor providing any of these services would be

just as ineligible as NSO to seek common-law

immunity. And if foreign courts follow that precedent,

U.S. companies that supply technology, armaments,

and other essential supplies to the United States will

be equally exposed to litigation around the world.

If anything, Respondents’ reliance on the Entity

List confirms that the Court, if it does not grant the

petition outright, should request the Solicitor

General’s views. Respondents ask this Court to defer

to their own guesses about what the government

thinks, but the better course is for the Court to invite

the government to speak for itself. The question

presented is too important to start and stop with

Respondents’ speculation.

I.

The Ninth Circuit’s decision conflicts with

decisions from other circuits.

Until the Ninth Circuit’s decision, no court had

held that the FSIA forbids a private entity from

seeking common-law conduct-based immunity. To the

3

contrary, the Fourth and D.C. Circuits have

recognized that private entities may be eligible for

conduct-based immunity. Pet. 11-13.

1. Respondents cannot distinguish Butters v.

Vance International, Inc., 225 F.3d 462 (4th Cir. 2000),

on the basis that the Fourth Circuit’s holding rested

on derivative immunity rather than conduct-based

immunity. BIO 13-14. Although Butters may not have

used the words “conduct-based immunity,” it applied

the same test, holding that private agents are immune

“when following the commands of a foreign sovereign

employer.” 225 F.3d at 466. And it did so based on

conduct-based immunity’s rationale, observing that

“courts define the scope of sovereign immunity by the

nature of the function being performed—not by the

office or the position of the particular employee

involved.” Id. The Fourth Circuit has recognized this

point. See Velasco v. Gov’t of Indonesia, 370 F.3d 392,

398-99 (4th Cir. 2004) (recognizing that Butters

addressed the “expansion of foreign sovereign

immunity” to foreign agents). And whatever label

Respondents prefer for the foreign-agent immunity at

issue in Butters, the undisputed bottom line is that

Butters granted that immunity to a private entity. The

Ninth Circuit, in contrast, held that private entities

can never receive such immunity under any label,

expressly disagreeing with Butters in the process.

App. 17 n.6.

Respondents also argue that Butters was

“abrogated” by Samantar v. Yousuf, 560 U.S. 305

(2010), BIO 14, but Samantar nowhere rejects

Butters’s holding that private entities are immune

when they act as foreign governments’ agents. That

4

holding—as with other pre-Samantar decisions

interpreting the FSIA—remains “instructive for postSamantar questions of common law immunity.”

Yousuf v. Samantar, 699 F.3d 763, 774 (4th Cir. 2012);

see Ved P. Nanda et al., 1 Litigation of International

Disputes in U.S. Courts § 3:59 n.134 (updated Feb.

2022) (citing Butters as good law).

Butters’s relevance to common-law immunity is

confirmed by post-Samantar decisions relying on

Butters to grant common-law immunity to private

agents. Ivey ex rel. Carolina Golf Dev. Co. v. Lynch,

No. 17CV439, 2018 WL 3764264, at *2, 6-7 (M.D.N.C.

Aug. 8, 2018); Moriah v. Bank of China Ltd., 107 F.

Supp. 3d 272, 277 & n.34 (S.D.N.Y. 2015).

Respondents dismiss these as district-court decisions

that, as such, cannot create a circuit split, BIO 15 n.6,

but that misses the point: Ivey and Moriah confirm

that Butters involved the same common-law conductbased immunity that the Ninth Circuit categorically

rejected, and thus confirm that the Fourth and Ninth

Circuits are split. Pet. 12.

2. In fact, the D.C. Circuit explained in Broidy

Capital Management LLC v. Muzin, 12 F.4th 789, 802

(2021), that private entities can seek common-law

immunity after Samantar. Respondents’ assertion

that Broidy did not really involve a private-entity

defendant because the entity was owned by two

individual defendants, BIO 12-13, is bizarre. The D.C.

Circuit identified one of the defendants as a private

“public relations consulting firm.” 12 F.4th at 793. And

it unambiguously analyzed that entity’s immunity

defense under the standards for common-law conductbased immunity. Id. at 799-802.

5

That is because, as the D.C. Circuit explained,

“claims of immunity” by “private entities” must “rise

or fall not under the FSIA, but the residual law and

practice that the FSIA did not displace.” Id. at 802

(emphasis added). That language was not “dicta.”

BIO 13. Without it, the court could not have applied

the test for common-law conduct-based immunity to

the entity defendant’s immunity defense. Unlike

Respondents, the Ninth Circuit recognized this point,

criticizing Broidy for “presum[ing] ... that the common

law applied to ‘private entities or individuals.’” App.

15 n.5 (quoting Broidy, 12 F.4th at 802). That is a clear

and acknowledged split between the Ninth and D.C.

Circuits, which this Court should resolve.

II. This case is an ideal vehicle to resolve the

important question presented.

1. As NSO explained, the question presented is

important because the Ninth Circuit’s decision will

expose U.S. contractors to similar suits in foreign

courts. Pet. 14-18. Contrary to Respondents’

argument, this is not “speculation.” BIO 23. The

United States’ contractors are frequently sued in the

United States, where courts have developed doctrines

to prevent such suits from interfering with

governmental activities. E.g., Boyle v. United Techs.

Corp., 487 U.S. 500 (1988) (government-contractor

defense); In re KBR, Inc., 893 F.3d 241 (4th Cir. 2018)

(political question doctrine); Saleh v. Titan Corp., 580

F.3d 1 (D.C. Cir. 2009) (preemption). 1 But if the Ninth

This Court recently called for the views of the Solicitor

General in one such case. Midwest Air Traffic Control Serv., Inc.

v. Badilla, No. 21-867 (U.S. May 2, 2022).

1

6

Circuit’s decision is allowed to stand, no similar

protections will exist for U.S. contractors sued in

foreign courts. There is no reason to doubt that the

United States’ adversaries will take advantage of that

opening to obstruct the United States’ intelligence and

military operations. Respondents, for their part, filed

this lawsuit in an avowed effort to prevent

governments from relying on contractors in

intelligence and law-enforcement operations. Pet. 17.

Indeed, the Solicitor General has warned that “[i]f

the United States permits suits against foreign

sovereigns,” then “foreign states may reciprocate by

permitting similar claims against the United States in

their tribunals.” Brief for the United States as Amicus

Curiae at 22-23, Odhiambo v. Republic of Kenya,

No. 14-1206 (U.S. May 24, 2016), 2016 WL 2997336.

So too in the context of conduct-based immunity,

where the Solicitor General has warned that actions

against foreign officials in U.S. courts could prompt

reciprocal treatment of U.S. officials in foreign courts.

Brief for the United States as Amicus Curiae at 16,

Mutond v. Lewis, No. 19-185 (U.S. May 26, 2020), 2020

WL 2866592. Respondents cannot explain why this

concern would evaporate merely because the

government agent is a private entity.

Thus, Respondents’ attempt to downplay the

importance of the question presented, BIO 22-23, is

makeweight. Governments routinely rely on privateentity agents. Contractors are essential to the United

States, the self-proclaimed “world’s largest customer”

for contractors. U.S. Small Bus. Admin., Become a

Federal Contractor, https://bit.ly/39b6hq4. Whether

here or abroad, governments regularly and necessarily

7

“delegate governmental functions” to private entities

because they “cannot perform all necessary and proper

services” alone. Mangold v. Analytic Servs., Inc., 77

F.3d 1442, 1448 (4th Cir. 1996). The decision below

threatens governments’ ability to rely on private

contractors.

2. Unable to identify any genuine vehicle

problems obstructing this Court’s review of the

important question presented, Respondents proffer

fake ones.

a. Respondents cannot transform the purely legal

question presented by this petition into one that

requires further factual development. The question

presented by NSO’s petition is not, as Respondents

suggest, whether NSO’s common-law immunity

defense will ultimately succeed. BIO 26. The question

is what law governs NSO’s claim—the FSIA or the

common law. The Ninth Circuit answered that

question as a pure matter of statutory interpretation

that does not turn on any disputed facts. App. 2-3, 1819. And the legal question is worthy of review, no

matter whether Respondents argue on remand that

NSO is not entitled to common-law immunity on the

facts. This Court routinely grants certiorari to clarify

the relevant legal standard, then lets lower courts

apply the standard in the first instance. That is what

the Court did in Samantar, 560 U.S. at 325-26, and it

should do the same here. 2

2 Because NSO does not ask the Court to apply the common law

and decide in the first instance whether NSO should receive

immunity, Respondents’ arguments that NSO would lose under

the common law are irrelevant. BIO 18-22. For what it’s worth,

though, there is no coherent reason to exclude private entities

8

In any event, Respondents forfeited their factual

arguments. In the district court, NSO raised a

“factual” challenge to subject-matter jurisdiction by

submitting evidence to support its entitlement to

immunity. App. 32. That shifted the burden to

Respondents to “furnish affidavits or other evidence

necessary to satisfy [their] burden of establishing

subject matter jurisdiction.” App. 25 (quoting Safe Air

for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.

2004)). But Respondents did not submit any evidence

or otherwise dispute NSO’s evidence. The district

court thus found it undisputed that NSO is an “agent[]

of foreign governments” that acted entirely within its

“official capacity.” App. 35. The Ninth Circuit did not

upset that finding. As the case comes to this Court,

therefore, it is established that NSO acted as the agent

of foreign sovereigns. It is too late for Respondents to

argue otherwise now.

b. Respondents also argue that NSO cannot

receive common-law conduct-based immunity because

it is on the Entity List. BIO 26. Again, though,

whether NSO should ultimately receive conduct-based

immunity is not the question presented.

That aside, Respondents offer no authority for

their position—because none exists. The relevant

alone from common-law immunity, which Respondents concede

protects private individuals. BIO 12, 20-21. Conduct-based

immunity, after all, “does not depend on the identity of the person

or entity [seeking immunity] so much as the nature of the act for

which the person or entity is claiming immunity.” Herbage v.

Meese, 747 F. Supp. 60, 66 (D.D.C. 1990). The agent’s “status” is

thus irrelevant if “the act was performed on behalf of the foreign

state.” Rishikof v. Mortada, 70 F. Supp. 3d 8, 13 (D.D.C. 2014).

9

question for common-law immunity is whether a

defendant satisfies the legal test the State

Department has previously applied to requests for

such immunity. Samantar, 560 U.S. at 312. The

question is not, as Respondents would have it,

whether the current Administration supports a

specific defendant’s alleged conduct as a policy matter.

BIO 26. Foreign sovereign immunity applies even

when a defendant is sued for violating federal or

international law. Federal Republic of Germany v.

Philipp, 141 S. Ct. 703, 713 (2021); Saudi Arabia v.

Nelson, 507 U.S. 349, 361-62 (1993). The United

States has thus recommended conduct-based

immunity for defendants accused of far worse conduct

than anything Respondents claim NSO did. E.g.,

Statement of Interest at 1, Rosenberg v. Lashkar-ETaiba, No. 1:10-cv-05381 (E.D.N.Y. Dec. 17, 2012),

ECF 35 (recommending immunity for defendants

allegedly involved in “terrorist attacks” that “[t]he

United States strongly condemns”); Statement of

Interest at 1-2, Matar v. Dichter, No. 05 Civ. 10270

(S.D.N.Y. Nov. 17, 2006), ECF 36 (suggesting

immunity for official accused of “war crimes,” “crimes

against humanity,” and “extrajudicial killing” for role

in “military attack” to which “the United States has

voiced serious objections” (cleaned up)); see Mutond

Amicus Br. at 17-20 (arguing conduct-based immunity

protects foreign officials who engage in “heinous acts”

of torture). This history disproves Respondents’

unsupported assertion that the government would

never “support immunity” for “activities it has

determined are contrary to U.S. national security or

foreign policy.” BIO 26.

10

c. Finally, Respondents’ argument that this

Court must decide whether the Ninth Circuit properly

exercised appellate jurisdiction before reaching the

question presented, BIO 29-30, is meritless. This

Court is not a “court[] of appeals” whose jurisdiction is

limited to review of final judgments. 28 U.S.C. § 1291.

Instead, this Court has certiorari jurisdiction over any

“judgment” in any “[c]ase[] in the courts of appeals.”

Id. § 1254(1); Nixon v. Fitzgerald, 457 U.S. 731, 74142 (1982); see Ohio Citizens for Responsible Energy,

Inc. v. Nuclear Regul. Comm’n, 479 U.S. 1312, 1312

(1986) (Scalia, J., in chambers) (section 1254(1) allows

“certiorari review of interlocutory orders of federal

courts”).

That clearly covers the decision below. The Ninth

Circuit held that it had jurisdiction over NSO’s appeal,

App. 5-6, and Respondents have not cross-petitioned

for review of that holding. This Court thus has

jurisdiction to review the Ninth Circuit’s “judgment”

that the FSIA precludes common-law immunity for

private entities, 28 U.S.C. § 1254(1), irrespective of

whether the Ninth Circuit correctly held that it had

collateral-order appellate jurisdiction. 3

3 If it mattered, the Ninth Circuit was correct to hold that it

had appellate jurisdiction. “[C]ommon law” conduct-based

immunity is “‘an immunity from suit,’” Doğan v. Barak, 932 F.3d

888, 895 (9th Cir. 2019), that can be raised in an interlocutory

appeal, Farhang v. Indian Inst. of Tech., 655 F. App’x 569, 570

(9th Cir. 2016); Yousuf, 699 F.3d at 768 n.1. The D.C. Circuit held

the same in Broidy, rejecting Respondents’ exact argument. 12

F.4th at 796-97.

11

III. The decision below conflicts with Samantar.

Although the Court should grant certiorari

regardless of its view of the merits of the Ninth

Circuit’s decision, Respondents are wrong that the

decision is consistent with Samantar. BIO 16-17; see

Pet. 19-21. As Samantar explained, the FSIA governs

only “whether a foreign state is entitled to sovereign

immunity.” 560 U.S. at 313 (emphasis added). The

FSIA’s definition of “foreign state” incorporates

entities that, because they are state-owned “agenc[ies]

or instrumentalit[ies],” are equivalent to foreign

states. Id. at 314; see 28 U.S.C. § 1603(a)-(b). But that

definition limits only which entities possess immunity

as foreign states. When a plaintiff sues a defendant

that is not “a foreign state as the [FSIA] defines that

term,” the FSIA does not displace the common law.

Samantar, 560 U.S. at 325.

It is thus not true that the FSIA “comprehensively

addresses immunity for entities.” BIO 10. The FSIA is

“comprehensive” only “for suits against states.”

Samantar, 560 U.S. at 323 (emphasis added). Some

entities are, by statutory definition, “foreign states.”

Id. at 325. Some are not. And when they are not, the

FSIA has nothing to say about the availability of

immunity. Id. In that instance, immunity is “governed

by the common law.” Id. The Ninth Circuit, however,

held exactly the opposite—that the FSIA “displaced

common-law sovereign immunity” for entities not

falling within the FSIA’s definition of “foreign state.”

App. 3, 12.

12

IV. The Court should consider inviting the

Solicitor General’s views.

Given the importance of the question presented to

the United States’ reliance on contractors,

Respondents cannot persuasively argue that calling

for the views of the Solicitor General is unwarranted

merely because the government did not file a brief

below. BIO 31. The Court frequently calls for the

Solicitor General’s views on petitions raising

immunity questions, Pet. 21-22, even when the

government did not participate in the lower courts.

Compare CVSG, Mutond, No. 19-185 (U.S. Jan. 21,

2020), with Docket, Mutond, No. 17-7118 (D.C. Cir.),

and Docket, Mutond, No. 1:16-cv-01547-RCL (D.D.C.).

If anything, inviting the Solicitor General’s views

is even more appropriate in such cases, where the

Court has no other way to learn the United States’

position. Respondents’ opposition to certiorari largely

depends on their speculation that the government

would not support NSO. But Respondents are in no

better position than NSO to discern the government’s

views on legal questions—such as whether immunity

is categorically unavailable to U.S. contractors and

other private entities, or even whether a defendant’s

presence on the Entity List is relevant to immunity—

that the government has never before had an

opportunity to address. If the Court believes the

government’s opinion on those questions would assist

its consideration of this petition, it should call for the

Solicitor General’s views.

13

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

Joseph N. Akrotirianakis

Aaron Craig

Zachary W. Byer

KING & SPALDING LLP

633 W. 5th Street

Suite 1600

Los Angeles, CA 90071

(213) 443-4355

Jeffrey S. Bucholtz

Counsel of Record

KING & SPALDING LLP

1700 Pennsylvania Ave. NW

Washington, DC 20006

(202) 737-0500

jbucholtz@kslaw.com

Matthew V.H. Noller

KING & SPALDING LLP

50 California Street

Suite 3300

San Francisco, CA 94105

(415) 318-1200

Counsel for Petitioners

May 16, 2022