Amicus Curiae Brief — Cisco Systems, Inc., et al., Petitioners v. Doe I, et al.

No. 24-856

IN THE

Supreme Court of the United States

_________

CISCO SYSTEMS, INC., ET AL.,

Petitioners,

v.

DOE I, ET AL.,

Respondents.

_________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

_________

BRIEF OF AMERICAN FREE ENTERPRISE

CHAMBER OF COMMERCE

AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

_________

R. TRENT MCCOTTER

Counsel of Record

SEPARATION OF POWERS CLINIC

COLUMBUS SCHOOL OF LAW

THE CATHOLIC UNIVERSITY OF

AMERICA

3600 John McCormack Rd.

Washington, DC 20064

(202) 706-5488

mccotter@cua.edu

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF THE AMICUS CURIAE................... 1

SUMMARY OF THE ARGUMENT ........................... 2

ARGUMENT .............................................................. 3

I.

The Legislative Power—Including Creating

Causes of Action—Is Vested Exclusively with

Congress ............................................................... 3

II. Judicial Creation of ATS Causes of Action Is

Barred by Separation of Powers ......................... 5

III. ATS Causes of Action Interfere with Foreign

Relations—the

Quintessential

Political

Sphere .................................................................. 7

IV. The Court Should Shut the Door on ATS

Suits ..................................................................... 9

V. Ironically, ATS Suits Likely Increase HumanRights Abuses by Deterring Foreign

Investment by American Companies ................ 11

CONCLUSION ......................................................... 14

ii



TABLE OF AUTHORITIES

Page(s)

Cases

Alexander v. Sandoval,

532 U.S. 275 (2001) ................................................ 3

Central Bank of Denver, N.A. v. First

Interstate Bank of Denver, N.A.,

511 U.S. 164 (1994) ................................................ 4

Comcast Corp. v. Nat’l Ass’n of African

American-Owned Media,

140 S. Ct. 1009 (2020) ............................................ 3

Doe v. Exxon Mobil Corp.,

654 F.3d 11 (D.C. Cir. 2011) .............................. 5, 8

Egbert v. Boule,

596 U.S. 482 (2022) ................................................ 3

Jesner v. Arab Bank, PLC,

584 U.S. 241 (2018) .......................... 5, 6, 7, 8, 9, 10

Nestle USA, Inc. v. Doe,

593 U.S. 628 (2021) ........................ 2, 4, 6, 7, 10, 11

Sosa v. Alvarez-Machain,

542 U.S. 692 (2004) .......................... 2, 5, 6, 7, 9, 10

TransUnion LLC v. Ramirez,

141 S. Ct. 2190 (2021) ............................................ 4

Constitution and Statutes

U.S. Const. art. I, § 1 ................................................... 3

U.S. Const. art. I, § 7 ................................................... 3

U.S. Const. art. I, § 8 ................................................... 3

iii



Other Authorities

White House, Fact Sheet: President

Donald J. Trump Imposes Tariffs on

Imports from Canada, Mexico and

China, Feb. 1, 2025,

https://www.whitehouse.gov/factsheets/2025/02/fact-sheet-presidentdonald-j-trump-imposes-tariffs-onimports-from-canada-mexico-andchina/ ...................................................................... 8

Joseph Downey, Domestic Corporations

and the Alien Tort Statute, 1 U. Chi.

Bus. L. Rev. 481 (2022) ........................................ 12

Christopher Ewell et al., Has the Alien

Tort Statute Made A Difference?: A

Historical, Empirical, and Normative Assessment, 107 Cornell L. Rev.

1205 (2022) ........................................................... 12

1

INTEREST OF AMICUS CURIAE1

Amicus curiae is the American Free Enterprise

Chamber of Commerce (“AmFree”). AmFree is a

nonprofit entity organized consistent with I.R.C.

§ 501(c)(6).

AmFree

represents

hardworking

entrepreneurs and businesses across all sectors of the

U.S. economy. Its members are vitally interested in

the preservation of free markets, innovation, and the

continued viability of our republic.

1 No counsel for any party has authored this brief in whole or in

part, and no entity or person other than amicus curiae and its

counsel made any monetary contribution intended to fund the

preparation or submission of this brief. All parties have received

timely notification of the filing of this brief.

2

SUMMARY OF THE ARGUMENT

“We Americans have a method for making the laws

that are over us. We elect representatives to two

Houses of Congress, each of which must enact the new

law and present it for the approval of a President,

whom we also elect.” Sosa v. Alvarez-Machain, 542

U.S. 692, 750 (2004) (Scalia, J., concurring in part and

concurring in the judgment); see Part I, infra.

But when it comes to the Alien Tort Statute,

“unelected federal judges have been usurping this

lawmaking power by converting what they regard as

norms of international law into American law.” Sosa,

542 U.S. at 750 (Scalia, J., concurring in part and

concurring in the judgment).

This “is an extraordinary act that places great

stress on the separation of powers.” Nestle USA, Inc.

v. Doe, 593 U.S. 628, 636 (2021) (op. of Thomas, J.,

joined by Gorsuch & Kavanaugh, JJ.); see Part II,

infra. It also results in significant diplomatic strife

with foreign nations, injecting the judiciary into a

sphere it is ill-suited to handle, with potentially

serious

consequences

for

already-fraught

international relations. See Part III, infra.

Further, the costs of such suits, which almost

never succeed, deter investment by American

corporations in foreign countries that would benefit

the most from American ingenuity and standards.

ATS suits thus ironically increase the risk of humanrights abuses. See Part V, infra.

This case presents an excellent vehicle for ending

this misadventure. The Court should grant review.

3

ARGUMENT

I.

The

Legislative

Power—Including

Creating Causes of Action—Is Vested

Exclusively with Congress.

Article I vests “legislative Powers” in Congress

alone. U.S. Const. art. I, § 1. That power can be

exercised only subject to certain stringent and precise

procedural requirements such as bicameralism and

presentment, subject to veto override procedures. U.S.

Const. art. I, § 7. Congress through those procedural

requirements is assigned the responsibility for

enacting statutes creating federal jurisdiction. See

U.S. Const. art. I, § 8, cl. 9. The parameters of

legislative power extend not just to the announcement

of new substantive federal law but also to the methods

of enforcement of that federal law—e.g., whether to

create a private cause of action.

“Like substantive federal law itself, private rights

of action to enforce federal law must be created by

Congress.” Comcast Corp. v. Nat’l Ass’n of African

American-Owned Media, 140 S. Ct. 1009, 1015 (2020);

see Alexander v. Sandoval, 532 U.S. 275, 286 (2001).

Accordingly, “[a]t bottom, creating a cause of action is

a legislative endeavor.” Egbert v. Boule, 596 U.S. 482,

491 (2022).

A second core structural feature of the federal

government

is

the

constitutionally

limited

assignment of federal courts to the resolution of

certain enumerated matters. Article III permits

federal courts to hear only certain limited categories

of matters—“Cases” and “Controversies”—and this

ensures that “federal courts exercise ‘their proper

4

function in a limited and separated government.’”

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203

(2021). “Under Article III, ... [f]ederal courts do not

possess a roving commission to publicly opine on every

legal question,” nor do they have power to “exercise

general legal oversight of the Legislative and

Executive Branches, or of private entities.” Id.

Rather, “federal courts instead decide only matters ‘of

a Judiciary Nature.’” Id. (quoting 2 Records of the

Federal Convention of 1787, at 430 (M. Farrand ed.

1966)).

This structural reality, combined with the

constitutionally ordained role of Congress and the

President in the establishment (or not) of courts,

causes of action, and permissible relief through

statutory enactments, suggests that the entire

enterprise of squinting to discern a cause of action

from bare jurisdictional statutes is at odds with the

Constitution’s limited role for the judiciary. See

Nestle, 593 U.S. at 636 (op. of Thomas, J., joined by

Gorsuch & Kavanaugh, JJ.) (“[J]udicial creation of a

cause of action is an extraordinary act that places

great stress on the separation of powers.”).

As most pertinent here, this Court has already

rejected the notion that courts can infer a cause of

action for aiding-and-abetting liability from statutory

silence. See Central Bank of Denver, N.A. v. First

Interstate Bank of Denver, N.A., 511 U.S. 164, 177

(1994). To be sure, that case addressed the Securities

Exchange Act, but the reasoning is directly applicable

here: Congress knows “how to impose aiding and

abetting liability” but had not done so. Id. at 176.

Then-Judge Kavanaugh has explained that Central

5

Bank “made crystal clear that there can be no civil

aiding and abetting liability unless Congress

expressly provides for it.” Doe v. Exxon Mobil Corp.,

654 F.3d 11, 87 (D.C. Cir. 2011) (Kavanaugh, J.,

dissenting in part). That makes the judicial

recognition of aiding-and-abetting causes of action

doubly improper: it violates separation of powers and

also this Court’s precedent.

II.

Judicial Creation of ATS Causes of Action

Is Barred by Separation of Powers.

The Alien Tort Statute, first enacted in 1789 and

not meaningfully changed since, is “‘strictly

jurisdictional’ and does not by its own terms provide

or delineate the definition of a cause of action for

violations of international law.” Jesner v. Arab Bank,

PLC, 584 U.S. 241, 254 (2018); see Sosa v. AlvarezMachain, 542 U.S. 692, 713 (2004) (“As enacted in

1789, the ATS gave the district courts ‘cognizance’ of

certain causes of action, and the term bespoke a grant

of jurisdiction, not power to mold substantive law.”)

“But the statute was not enacted to sit on a shelf

awaiting further legislation. Rather, Congress

enacted it against the backdrop of the general

common law, which in 1789 recognized a limited

category of ‘torts in violation of the law of nations.’”

Jesner, 584 U.S. at 254. That limited category

included only three “specific offenses”: “violation of

safe conducts, infringement of the rights of

ambassadors, and piracy.” Id. (citing 4 W. Blackstone,

Commentaries on the Laws of England 68 (1769)).

The “assumption” that federal courts would go on

recognizing ATS causes of action, however, “depended

6

on the continued existence of the general common

law,” which this Court largely rejected in Erie in 1938.

Jesner, 584 U.S. at 275 (Alito, J., concurring in part

and concurring in the judgment).

“That left the ATS in an awkward spot: Congress

had not created any causes of action for the statute on

the assumption that litigants would use those

provided by the general common law, but now the

general common law was no more.” Id. Facing this

“awkward” situation, the Court had two options: carve

out an ATS exception to Erie, or decline to recognize

(read “create”) new causes of action under the ATS.

But the Court has tried to have it both ways, declining

to recognize new causes of action while never formally

shutting the door on allowing exceptions in the future.

See Nestle, 593 U.S. at 637; Jesner, 584 U.S. at 275–

76.

The Court should not continue with one foot in Erie

and one foot in Swift v. Tyson. As explained above in

Part I, creating causes of action is inherently a

legislative task, “even in the realm of domestic law.”

Jesner, 584 U.S. at 264. “The question is not what case

or congressional action prevents federal courts from

applying the law of nations as part of the general

common law; it is what authorizes that peculiar

exception from Erie’s fundamental holding that a

general common law does not exist.” Sosa, 542 U.S. at

744 (Scalia, J., concurring in part and concurring in

the judgment). No such exception exists for ATS suits,

of course.

The usurpation of the legislative power to create

causes of action is itself a sufficient basis to grant

7

review and reverse. But the problems with leaving the

ATS door ajar run far deeper, as explained next.

III.

ATS Causes of Action Interfere with

Foreign Relations—the Quintessential

Political Sphere.

The “separation-of-powers concerns that counsel

against courts creating private rights of action apply

with particular force in the context of the ATS”

because of the foreign-policy implications. Jesner, 584

U.S. at 264–65. “The political branches, not the

Judiciary, have the responsibility and institutional

capacity to weigh foreign-policy concerns.” Id. at 265.

Recall from Part I above that the “judicial role is to

resolve cases and controversies,” but the “Judiciary

does not have the ‘institutional capacity’ to consider

all factors relevant to creating a cause of action that

will inherently affect foreign policy.” Nestle, 593 U.S.

at 639 (op. of Thomas, J., joined by Gorsuch &

Kavanaugh, JJ.). ATS cases thus force courts to

“navigat[e] foreign policy disputes” and “meddle in

disputes between foreign citizens over international

norms.” Jesner, 584 U.S. at 281 (Gorsuch, J.,

concurring in part and concurring in the judgment).

This yields a significant prospect of the judiciary

triggering

“collateral

consequences”

in

the

international realm. Sosa, 542 U.S. at 727.

In that sense, judicial intervention in this area

“risk[s] doing exactly what Congress adopted the ATS

to avoid: complicating or even rupturing this Nation’s

foreign relationships.” Nestle, 593 U.S. at 645

(Gorsuch, J., concurring). Recall the “principal

objective” of the ATS “was to avoid foreign

8

entanglements by ensuring the availability of a

federal forum where the failure to provide one might

cause another nation to hold the United States

responsible for an injury to a foreign citizen.” Jesner,

584 U.S. at 255. But holding open the door for ATS

actions—even if they never ultimately prevail—

“cause[s] significant diplomatic tensions” with the

nation whose conduct underlies the allegations. Id. at

271. It is therefore far from clear that “the United

States would be embroiled in fewer international

controversies if we created causes of action under the

ATS.” Id. at 279 (Alito, J., concurring in part and

concurring in the judgment). Rather, “ATS cases

based on acts occurring in foreign nations have often

engendered conflict with other sovereign nations,

rather than avoided it.” Exxon, 654 F.3d at 77–78

(Kavanaugh, J., dissenting in part).

That has never been more true than in this

particular case. The political branches are the ones

that can decide how best to respond to China’s

behavior. See, e.g., White House, Fact Sheet: President

Donald J. Trump Imposes Tariffs on Imports from

Canada, Mexico and China, Feb. 1, 2025,

https://www.whitehouse.gov/fact-sheets/2025/02/factsheet-president-donald-j-trump-imposes-tariffs-onimports-from-canada-mexico-and-china/. But “SinoAmerican relations” are “fraught” enough without

Ninth Circuit judges attempting to interlope by

allowing foreigners to sue Petitioners under a noteven-thinly-veiled theory that accuses China of mass

crimes, an accusation that “directly risks heightening

diplomatic strife.” Pet.App.131a (Bumatay, J.,

dissenting).

9

The risk of significant diplomatic tension means

the judicial creation of ATS actions arguably works an

even graver separation-of-powers violation than

creation of Bivens actions, which represent the Court’s

other significant foray into creating causes of action.

To be sure, Bivens lacked even a jurisdiction-creating

statute like the ATS, but Bivens at least aimed to

“enforce constitutional limits on our own State and

Federal Governments' power,” whereas ATS suits

“claim a limit on the power of foreign governments

over their own citizens, and [seek] to hold that a

foreign government or its agent has transgressed

those limits.” Sosa, 542 U.S. at 727; see id. at 743

(Scalia, J., concurring in part and concurring in the

judgment) (“[A]t least it can be said that Bivens

sought to enforce a command of our own law—the

United States Constitution.”) (emphases in original).

As Justice Gorsuch aptly put it, “there are degrees

of institutional incompetence and constitutional evil,”

Jesner, 584 U.S. at 292 (Gorsuch, J., concurring in

part and concurring in the judgment), and it is

difficult to imagine a task more ill-suited for the

judiciary than creating or recognizing ATS causes of

action.

IV.

The Court Should Shut the Door on ATS

Suits.

Given all of this, it’s an understatement to say that

litigation under the ATS “implicates serious

separation-of-powers and foreign-relations concerns.”

Jesner, 584 U.S. at 256. The Court should get out of

the game altogether. The Jesner majority correctly

noted “there is an argument that a proper application

10

of Sosa would preclude courts from ever recognizing

any new causes of action under the ATS,” but the

Court declined to resolve that question definitively.

Jesner, 584 U.S. at 265. Justices Thomas, Gorsuch,

and Kavanaugh, however, got it exactly right when

they argued in Nestle that “there will always be a

sound reason for courts not to create a cause of action

for violations of international law.” Nestle, 593 U.S. at

638. Like Justice Scalia before them, they recognized

the Court should end the “judicial occupation of a

domain that belongs to the people’s representatives.”

Sosa, 542 U.S. at 747 (Scalia, J., concurring in part

and concurring in the judgment).

To be sure, the Court has narrowed ATS liability

over the years, chipping away at each particular cause

of action as it came before the Court. Respectfully, the

Court should “stop feigning some deficiency in these

offerings” and close the “door Sosa should not have

cracked” in the first place. Nestle, 593 U.S. at 644

(Gorsuch, J., concurring). The Court could perhaps

decide to continue recognizing “those three torts that

were well established in 1789,” id. at 638, but the

wiser move—and the one doctrinally consistent—

would be to unambiguously end this judicial foray,

root and stem.

As Judge Bumatay put it below, it’s past time for

the judiciary to recognize that when it comes to

playing international relations, “we don’t belong on

the field at all.” Pet.App.130a (Bumatay, J.,

dissenting).

***

11

“A self-governing people depends on elected

representatives—not judges—to make its laws.”

Nestle, 593 U.S. at 644 (Gorsuch, J., concurring). That

rule applies all the more to “[w]hether and which

international norms ought to be carried into domestic

law—and how best to accomplish that goal while

advancing this country’s foreign policy interests.” Id.

The Court should accordingly grant review and hold

that if any ATS causes of action are to be recognized

going forward, Congress must be the one to create

them by express statutory language.

V.

Ironically, ATS Suits Likely Increase

Human-Rights Abuses by Deterring

Foreign

Investment

by

American

Companies.

The separation-of-powers and foreign-relations

harms caused by judicially created ATS suits are bad

enough. But they also cause significant harm for

American investment and ingenuity, which—

ironically—makes human-rights abuses more likely to

occur in foreign nations.

The U.S. government has previously told this

Court that ATS suits “hinder global investment in

developing economies, where it is most needed.” Br.

for United States as Amicus Curiae at 20, American

Isuzu Motors, Inc. v. Ntsebeza, No. 07–919. There is

the obvious explanation that companies “may be less

likely to engage in intergovernmental efforts if they

fear those activities will subject them to private suits.”

Nestle, 593 U.S. at 638. ATS suits often last upwards

of a decade or more—this very case is now fifteen

years old. Pet.24. Unsurprisingly, “[m]erely litigating

12

an ATS case can cost a corporation upwards of $15

million in attorneys’ fees,” a number that is likely on

the low end these days, given increasing hourly rates.

Joseph Downey, Domestic Corporations and the Alien

Tort Statute, 1 U. Chi. Bus. L. Rev. 481, 484 (2022).

But despite their resource-intensive nature, very

few ATS suits ever result in material victories for

plaintiffs. “[S]ince the first ATS case was decided in

1793, only twenty-five cases have resulted in

monetary judgments that were not subsequently

overturned,” and “only six out of these twenty-five

awards appear to have been collected.” Christopher

Ewell et al., Has the Alien Tort Statute Made A

Difference?: A Historical, Empirical, and Normative

Assessment, 107 Cornell L. Rev. 1205, 1250 (2022).

Rather, “most ATS plaintiffs pursue litigation

‘because they wanted to expose what had happened to

them and to get a chance to air the facts, to tell their

story in court.’” Id. at 1254. Telling their stories is

important, of course, but doing so in the form of an

ATS suit very well may cause the kinds of insidious

harm the plaintiffs want to prevent.

That is because, as this Court has explained, ATS

suits invite retaliatory suits in foreign courts against

American companies. “If … the Court were to hold

that foreign corporations may be held liable under the

ATS, that precedent-setting principle would imply

that other nations, also applying the law of nations,

could hale our corporations into their courts for

alleged violations of the law of nations.” Jesner, 584

U.S. at 269 (Kennedy, J.) (cleaned up). That would

“subject American corporations to an immediate,

13

constant risk of claims seeking to impose massive

liability for the alleged conduct of their employees and

subsidiaries around the world, all as determined in

foreign courts.” Id. And the inevitable result is to

“discourage[] American corporations from investing

abroad.” Id. Although Jesner narrowed the ATS’s

scope regarding foreign companies, the statute is still

wielded against American companies with a presence

in other countries, e.g., Petitioner Cisco Systems.

Thus, ironically, ATS suits seeking to challenge

alleged human-rights abuses may just make them

more common by “deter[ring] the active corporate

investment that contributes to the economic

development that so often is an essential foundation

for human rights.” Id. at 270.

From both a practical and constitutional

perspective, therefore, the best way to respond to

China’s abusive behavior is to let President Trump

and Congress chart the most appropriate path. Absent

a clear statutory cause of action, federal judges should

play no role in such fraught matters of international

relations.

14

CONCLUSION

For the foregoing reasons, amicus urges the Court

to grant the Petition and reverse.

Respectfully submitted,

R. TRENT MCCOTTER

Counsel of Record

SEPARATION OF POWERS CLINIC

COLUMBUS SCHOOL OF LAW

THE CATHOLIC UNIVERSITY OF

AMERICA

3600 John McCormack Rd.

Washington, DC 20064

(202) 706-5488

mccotter@cua.edu

March 13, 2025