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 Writ of Certiorari to the United States

Court of A ppeals for the Ninth Circuit

BRIEF OF SCHOLARS OF FEDERAL

JURISDICTION, FEDERAL COURTS,

CONSTITUTIONAL LAW, INTERNATIONAL

LAW, AND FOREIGN RELATIONS

LAW AS AMICI CURIAE IN SUPPORT

OF RESPONDENTS

Jack Scarola

Searcy Denney Scarola

Barnhart & Shipley, P.A.

2139 Palm Beach Lakes Blvd.

P.O. Drawer 3626

West Palm Beach, Fl 33409

(561) 686-6300

James K. Green

Counsel of Record

James K. Green, P.A.

Flagler Center

501 South Flagler Drive,

Suite 306

West Palm Beach, Fl 33401

(561) 659-2029

jkg@jameskgreenlaw.com

Counsel for Amici Curiae

132058

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................ iii

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

SUMMARY OF ARGUMENT .............................. 1

ARGUMENT ........................................................ 5

I. This Court’s Bivens precedents do not apply

where Congress has passed a statute

directing courts to create causes of action. .... 5

A. Congress passed the ATS

specifically so that courts would

hear federal common law tort

claims............................................... 6

B. Bivens actions are implied from the

Constitution and lack

congressional authorization. .......... 7

C. The congressional grant of authority

in 28 U.S.C. § 1350 distinguishes

ATS claims from judicially

implied causes of action under

Bivens. ............................................. 9

D. There is no basis to overturn

Sosa. .............................................. 12

ii

II. Precluding aiding and abetting liability in

cases where U.S. nationals abet abuses from

the United States would conflict with the

ATS’s text and purpose and this Court’s

separation of powers jurisprudence, and is

unnecessary. .................................................. 18

A. The First Congress enacted the

ATS to vindicate the law of nations

and ensure that the United States

would not be a safe harbor for its

nationals who violate

international law. ......................... 20

B. States are responsible to all other

states if their nationals aid and abet

torture and other human rights

violations. ...................................... 21

C. Cisco’s call for wholesale repeal of

aiding and abetting liability is

overbroad. ...................................... 25

D. The possibility of foreign policy

concerns in other cases provides no

basis to create a bright-line rule

excluding aiding and abetting

liability. ......................................... 27

CONCLUSION ................................................... 32

APPENDIX A ..................................................... 34

iii

TABLE OF AUTHORITIES

Federal Cases

Adhikari v. Daoud & Partners,

697 F. Supp. 2d 674 (S.D.Tex. 2009) .....................26

Alexander v. Sandoval,

532 U.S. 275 (2001) ............................................ 8, 12

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964) .......................................... 30, 32

Bivens v. Six Unknown Federal Narcotics Agents,

403 U.S. 388 (1971) ............................... 2, 5-9, 12-16

Colorado River Water Conservation District v. United

States,

424 U.S. 800 (1976) .......................................... 10, 31

Correctional Services Corp. v. Malesko,

534 U.S. 61 (2001) .............................................. 9, 12

Doe v. Exxon Mobil Corp.,

654 F.3d 11 (D.C. Cir. 2011) ....................................9

Egbert v. Boule,

596 U.S. 482 (2022) ............................................ 9, 15

F.R.G. v. Philipp,

592 U.S. 169 (2021) .......................................... 10, 29

iv

Filártiga v. Peña-Irala,

630 F.2d 876 (2d Cir. 1980) ...................................11

First National City Bank v. Banco Para El Comercio

Exterior De Cuba,

462 U.S. 611 (1983) ................................................ 16

Hernandez v. Mesa,

589 U.S. 93 (2020) .................................................7-9

Japan Whaling Assn. v. American Cetacean Soc.,

478 U.S. 221 (1985) ................................................ 31

Jesner, v. Arab Bank, PLC,

584 U.S. 241 (2018)……………………….2, 4, 6, 7,

10, 13, 14,

17, 19-22,

24, 28-30

Kadic v. Karadžić,

70 F.3d 232 (2d Cir. 1995) ............................... 26, 32

Kiobel v. Royal Dutch Petro. Co.,

569 U.S. 108 (2013)……………………….1, 4, 6, 1921, 23-30

Murray v. The Schooner Charming Betsy,

6 U.S. 64 (1804) ...................................................... 24

Nestlé USA, Inc. v. Doe,

593 U.S. 628 (2021)..................................2, 4, 6, 9,

14, 19, 2730

v

Patterson v. McLean Credit Union,

491 U.S. 164, (1989) ............................................ 12

Piper Aircraft Co. v. Reyno,

454 U.S. 235 n.6 (1981) ...................................... 29

R.M.S. Titanic, Inc. v. Haver,

171 F.3d 943 (4th Cir. 1999)............................... 15

Shalala v. Ill. Council on Long Term Care,

529 U.S. 1 (2000) ................................................. 14

Sinochem Int’l Co. v. Malaysian Int’l Shipping

Corp., 549 U.S. 422 (2007) .................................. 29

Sosa v Alvarez-Machain,

542 U.S. 693 (2004)....................................1-7, 9-14,

16, 17, 19,

20, 22, 2527, 29-31

The Lottawanna,

88 U.S. 558 (1874) ............................................... 16

The Paquete Habana,

175 U.S. 677 (1900) ............................................. 10

Ungaro Benages v. Dresdner Bank AG,

379 F.3d 1227 (11th Cir. 2004)..................... 29, 30

United States v. Kimbell Foods, Inc.,

440 U. S. 715 (1979) ............................................ 10

vi

Ziglar v. Abassi,

582 U.S. 120 (2017) ................................... 8, 13, 15

Zivotofsky ex rel. Zivotofsky v. Clinton,

566 U.S. 189 (2012) ....................................... 30, 31

Federal Statutes and Rules

22 U.S.C.§ 2304(a)(1)(1994) ................................... 25

28 U.S.C.§ 1333 ................................................ 15, 16

28 U.S.C.§ 1350……………………………..1, 5-7, 9, 11,

13, 17, 18,

32

International Cases

Questions Relating to the Obligation to Prosecute or

Extradite (Belgium v. Senegal), 2012 I.C.J. 422

(July 20) ................................................................22

Other Authorities

Burley, Anne-Marie, The Alien Tort Statute and the

Judiciary Act of 1789: A Badge of Honor, 83 Am. J.

Int'l L. 461 (1989) .................................................20

Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment,

arts. 4, 14(1), Dec. 10, 1984, 1465 U.N.T.S. 85 .....23

De Vattel, E, 1 The Law of Nations, bk. II, §76, p.

145 (1760) ...............................................................21

vii

Dodge, William S., The Historical Origins of the

Alien Tort Statute: A Response to the

"Originalists," 19 Hastings Int'l & Comp. L. Rev.

221 (1996) .................................................................7

H.R. Rep. No. 102-367, pt. 1, at 4 (1991). .................11

Restatement (Third) of Foreign Relations Law of the

United States § 402 (Am. Law Inst. 1987) ...........28

Restatement (Third) of Foreign Relations Law of the

United States § 702 cmt. o & § 703 cmt. b (Am.

Law Inst. 1987) ......................................................22

Restatement (Third) of Foreign Relations Law of the

United States § 404, Reporters' Note 1 ................22

W. Blackstone, Commentaries on the Laws of

England 67–68 (1791) ............................................21

Constitutional Provisions

U.S. Const. art. III, § 2, cl. 1. ....................................15

1

INTEREST OF AMICUS CURIAE 1

0F

Amici curiae are law professors who teach and

publish about federal jurisdiction, federal courts,

constitutional law and history, international law, and

foreign relations law. Amici thus have a professional

interest in the proper understanding and

interpretation of the Alien Tort Statute (“ATS”). 28

U.S.C. § 1350. Specifically, Sosa v. Alvarez-Machain,

542 U.S. 692 (2004), held that the ATS provides

congressional authorization for courts to provide

redress for certain, limited torts committed in

violation of the laws of nations. Amici submit that: 1)

there is no reason for the Court to overturn that

holding; and 2) the possibility that some cases, but not

this one, might raise foreign policy concerns provides

no basis to create a blanket prohibition on aiding and

abetting liability. A complete list of amici is provided

in Appendix A.

SUMMARY OF ARGUMENT

This Court held in Sosa and affirmed in three

subsequent cases that the ATS authorizes federal

courts to provide a remedy for certain international

law violations, particularly where the failure to

provide a remedy might cause foreign nations to hold

the United States accountable. See Sosa, 542 U.S. at

724-25, 732; Kiobel v. Royal Dutch Petro. Co., 569 U.S.

1 Pursuant to Supreme Court Rule 37.6, no counsel for any party

authored this brief in whole or in part, and no person or entity

other than amici curiae or their counsel made any monetary

contribution for the preparation or submission of this brief.

2

108, 115 (2013); Nestlé USA, Inc. v. Doe, 593 U.S. 628,

631 (2021); Jesner v. Arab Bank, PLC, 584 U.S. 241,

254-56 (2018). That disposes of Cisco’s and their

amici’s primary arguments: that the ATS is a dead

letter, authorizing no modern claims and that,

regardless, this Court should preclude aiding and

abetting liability. Cisco proposes, under the guise of

judicial discretion and separation-of-powers, to

eviscerate or severely limit the ATS in ways that are

contrary to its text and purpose.

I. Cisco invites the Court to overturn Sosa and

its progeny. It asks the Court to hold that recent

Bivens decisions should foreclose any claims under the

ATS beyond the three violations recognized when the

ATS was passed, no matter how well-established. Pet.

Br. 17-21. But that would ignore the fact, repeatedly

affirmed by this Court, that the ATS is a clear

congressional grant of authority to recognize causes of

action for a limited set of universally accepted

international law norms. Congress reaffirmed this in

enacting the TVPA, and it is similar to wellestablished authority in other areas of law. Unlike

ATS claims, Bivens actions are judicially implied from

the constitution itself and devoid of any congressional

authorization.

Extending

precedents

limiting Bivens relief to refuse to apply a statute

Congress intended to authorize a claim would raise

the very separation-of-powers concerns Cisco purports

to avoid.

Regardless, while Cisco frames Bivens case law

cautioning against judicially implied causes of action

3

as new, this Court took into account the long-standing

principles reflected in those cases when it carefully

crafted and repeatedly reaffirmed the test in Sosa. It

should decline Cisco’s invitation to overturn Sosa.

II. Cisco also says that because some aiding and

abetting cases involve a foreign state and could raise

foreign policy concerns, this Court should bar all

aiding and abetting liability. Pet. Br. 33; U.S. Br. 24.

That non sequitur conflicts with the statute’s text and

purpose.

There is no argument that this case interferes

with our foreign policy. Nor does anyone deny that

aiding and abetting a human rights violation is a

human rights violation. States are responsible for the

human rights abuses of their nationals, and owe a

duty to all other States to prevent and remedy the

most serious violations. If the United States refused

to provide a remedy where, as here, Americans aid

and abet egregious violations of universally

recognized norms from the United States, other

nations will hold the United States accountable. Cisco

provides no reason to exclude cases like this one,

which is exactly the type the Framers sought to

permit.

Cisco’s plea that this Court should nonetheless

create a new, bright-line rule exempting aiders and

abettors from liability proposes an overbroad

“solution” in search of a problem. Such a rule would

exclude cases that do not involve foreign states or

have no conceivable effect on foreign policy, as well as

cases that have the positive effect Congress intended:

4

the United States being seen complying with its

obligations. And such a rule is unnecessary. This

Court has already accounted for foreign policy

concerns by limiting ATS claims to universally

accepted norms, Sosa, 542 U.S. at 732; barring claims

without an adequate connection to the United States,

Kiobel, 569 U.S. at 124-25; Nestlé, 593 U.S. at 633-34;

and precluding claims against foreign corporations.

Jesner, 584 U.S. at 265. These limits prevent

international discord in the vast majority of cases.

If some rare aiding and abetting case that

survived this Court’s strict limits nonetheless raised

foreign policy concerns, Sosa’s suggested approach –

addressing such concerns on a case-by-case basis –

542 U.S. at 733 n.21, is sufficient. Courts have wellestablished tools to evaluate the propriety of cases

that may affect foreign affairs. These doctrines

carefully balance respect for the political branches’

foreign policy prerogatives with the Judiciary’s duty

to exercise statutorily-created jurisdiction. But this

Court has long held that the mere fact that a case may

affect foreign policy alone is insufficient to absolve

courts of that duty. Thus, Petitioner’s proposal to bar

even the possibility of aiding and abetting liability in

all cases is unnecessary to prevent specific

problematic cases, would improperly preclude claims

that present little or no possibility of interfering with

U.S. foreign policy, and conflicts with both the

statute’s purpose and the Judiciary’s obligation to

exercise the jurisdiction the ATS affords.

5

This Court has strictly limited the ATS, but has

carefully avoided excluding claims where a U.S.

defendant violates universally accepted international

law from the United States, since those claims are

central to the statute’s purpose. This Court should

reject Cisco’s request to defy Congress’s intent and to

cut away at the statute’s heart.

ARGUMENT

I.

This Court’s Bivens precedents do not

apply where Congress has passed a

statute directing courts to create causes

of action.

The ATS applies to “tort[s] . . ., committed in

violation of the law of nations.” 28 U.S.C. § 1350. As

Sosa recognized, Congress enacted this statute to

provide federal courts with jurisdiction and the

statutory authority to recognize a narrow class of

federal common law claims for qualifying torts. 542

U.S. at 717, 724-25.

Cisco, however, argues that because the Court

has expressed reluctance to expand federal courts’

authority to imply private rights of action directly

from the constitution under the line of cases stemming

from Bivens v. Six Unknown Named Fed. Narcotics

Agents, 403 U.S. 388 (1971), the Court should rule

that federal courts can no longer recognize any causes

of action under the ATS other than the three that the

First Congress may have had in mind. Pet. Br. 17-21;

see also U.S. Br. 13-18. Such a holding would require

ignoring the text of, and Congress’s purpose in

6

enacting, the ATS, which provides a congressional

grant of authority to recognize causes of action under

the ATS. It would also require overturning Sosa,

Kiobel, Jesner, and Nestlé, which have expressly

confirmed this congressional grant of federal judicial

authority. And it would generate the exact separation

of powers concerns that Cisco’s proposal purports to

avoid.

A. Congress passed the ATS specifically

so that courts would hear federal

common law tort claims.

The ATS grants district courts federal

jurisdiction and the statutory authority to recognize

causes of action for torts committed in violation of the

law of nations. Sosa, 542 U.S. at 724-25. In

empowering federal district courts to hear “civil

action[s]” for “tort[s],” the plain statutory text

explicitly endorses the provision of a remedy through

a damages action. 28 U.S.C. § 1350. This Court held

– and reaffirmed three separate times – that the ATS

expressly authorizes federal courts to recognize

certain claims under widely accepted international

norms, as federal common law. Sosa, 542 U.S. at 72425, 732; Nestlé, 593 U.S. at 631; Kiobel, 569 U.S. at

115; Jesner, 584 U.S at 254-56.

Indeed, this Court emphasized that the “First

Congress did not intend the [ATS] to be ‘stillborn,’”

Kiobel, 569 U.S. at 115 (quoting Sosa, 542 U.S. at

714), or “to sit on a shelf awaiting further legislation.”

Jesner, 584 U.S. at 254. It made clear that Congress

enacted the ATS on “the underst[anding] that the

7

district courts would recognize private causes of

action for certain torts in violation of the law of

nations.” Sosa, 542 U.S. at 724. And it held that this

grant of authority survived Erie, because Erie did not

“bar [such] judicial recognition . . . no matter what the

circumstances,” and “it would be unreasonable to

assume that the First Congress would have expected

federal courts to lose all capacity to recognize

enforceable international norms.” See id. at 729-31.

The ATS grants courts authority to “recognize

a common-law cause of action for claims based on the

present-day law of nations, in addition to the

‘historical paradigms familiar when §1350 was

enacted.’” Jesner, 584 U.S. at 256 (quoting Sosa, 542

U.S. at 732). The First Congress was well aware that

international law evolved, and would continue to

evolve, over time. William S. Dodge, The Historical

Origins of the Alien Tort Statute: A Response to the

“Originalists,” 19 Hastings Int’l & Comp. L. Rev. 221,

241-43 (1996). No subsequent Congress has walked

back this grant of authority. “Congress has not in any

relevant way amended § 1350 or limited civil common

law power by another statute.” Sosa, 584 U.S. at 725.

Thus, by exercising jurisdiction over claims of

international law violations, the courts carry out

Congress’s legislative command.

B. Bivens actions are implied from the

Constitution and lack congressional

authorization.

Unlike ATS claims, “no statute expressly

creates a Bivens remedy.” Hernandez v. Mesa, 589

8

U.S. 93, 100 (2020); accord Ziglar v. Abassi, 582 U.S.

120, 133 (2017) (“With respect to the Constitution,

however, there is no single, specific congressional

action to consider and interpret.”). “In Bivens . . . the

Court [held] that . . . the victim of an unlawful arrest

and search could bring a Fourth Amendment claim for

damages against the responsible agents even though

no federal statute authorized such a claim.”

Hernandez, 589 U.S. at 99.

This Court’s post-Bivens cases have long

limited a court’s authority to imply a cause of action

under the Constitution, in the absence of any

congressional imprimatur. The Court has observed

that Bivens extended the mid-20th century practice of

providing statutory remedies not mentioned in

statutory text but deemed necessary by courts to

make a statute effective to the Constitution itself. See

Ziglar, 582 U.S. at 132; Hernandez, 589 U.S. at 99.

The practice in the statutory field was largely

“abandoned” long ago in favor of “interpret[ing] the

statute Congress has passed to determine whether it

displays an intent to create . . . a private remedy.”

Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001).

In Bivens actions, this Court is asked to

imply “a damages remedy” from “a provision that

makes no reference to that remedy.” Hernandez, 589

U.S. at 100. The absence of congressional

authorization for the Court to undertake that task has

led it to observe that the “expansion of Bivens is a

disfavored judicial activity,” and the Court “has been

. . . reluctant to create new causes of action.” Id. at 101

9

(quotation marks omitted). But the ATS is entirely

different. Supra § I.A.; infra § I.C.

C. The congressional grant of authority in

28 U.S.C. § 1350 distinguishes ATS

claims from judicially implied causes

of action under Bivens.

Sosa specifically rejected the notion that courts

lack congressionally-granted authority to hear ATS

claims. 542 U.S. at 724-25, 729-31. Post-Bivens cases

“in no way foreclose[]” ATS claims precisely because

while Bivens actions lack any statutory basis, the ATS

expressly provides a “firm statutory basis.” See Doe v.

Exxon Mobil Corp., 654 F.3d 11, 55 (D.C. Cir. 2011),

vacated on other grounds, 527 F. App’x 7 (D.C. Cir.

2013) (citing Corr. Servs. Corp. v. Malesko, 534 U.S.

61, 68 (2001) and Sosa, 542 U.S. at 724)); supra § I.AB.

Unlike the Constitution and statutes that are

silent on such matters, the ATS is “a statute that

‘makes [] reference to [a] remedy.’” Nestlé, 593 U.S. at

652 (Sotomayor, J., concurring) (quoting Hernandez,

589 U.S. at 100). “The ATS expressly contemplates

that federal courts will hear ‘civil action[s]’ for

‘tort[s].’” Id. (quoting 28 U.S.C. §1350). Thus, “‘a

federal court’s authority to recognize a damages

remedy’ under the ATS very much ‘rest[s] at bottom

on a statute enacted by Congress.’” Id. (quoting

Hernandez, 589 U.S. at 100). This Court does not need

to ask whether courts are “better positioned than

Congress to create a damages action,” Egbert v. Boule,

10

596 U.S. 482, 492 (2022), because Congress has

already authorized one.

Indeed, as Sosa recognized, the ATS enacts a

congressional policy of using tort law to redress widely

accepted international wrongs through federal

common law. 542 U.S. at 717, 719, 724-25.

Recognizing actionable international norms subject to

Sosa’s two-step framework thus effectuates that

congressional policy, which is this Court’s “function”

when fashioning federal common law. See Jesner, 584

U.S. at 277 (Alito, J., concurring) (quoting United

States v. Kimbell Foods, Inc., 440 U.S. 715, 738

(1979)). And courts are up to this congressionally

assigned task: identifying actionable norms under the

ATS is consistent with federal courts’ historic

competence

to

adjudicate

claims

involving

international law. See Sosa, 542 U.S. at 729-30

(collecting cases); The Paquete Habana, 175 U.S 677,

700 (1900) (“International law is part of our law, and

must be ascertained and administered by the courts

of justice.”). Courts do so all the time. E.g. F.R.G. v.

Philipp, 592 U.S. 169, 176-80 (2021). Consequently,

limits on implying constitutional torts have little

application to a statute under which Congress expects

federal courts to adjudicate torts; applying such limits

would conflict with Congress’s will. Indeed, the usual

rule is that once jurisdiction is established, federal

courts have a “virtually unflagging” obligation to

exercise it. See Colo. River Water Conservation Dist. v.

United States, 424 U.S. 800, 817 (1976).

11

Congress’s passage of the Torture Victim

Protection Act of 1991 (“TVPA”), 28 U.S.C. § 1350

note, reaffirmed its understanding and agreement

that the ATS authorizes federal courts to recognize

claims for violations of modern-day international law.

The TVPA supplements the ATS given the latter

statute’s restriction of common law remedies to

“aliens”; the TVPA is designed to “enhance the remedy

already available under” the ATS by “extend[ing] a

civil remedy also to U.S. citizens who may have been

tortured abroad.” See H.R. Rep. No. 102-367, 4 (1991)

(emphasis added). And Congress intended that the

ATS “remain intact to permit suits based on other

norms that already exist or may ripen in the future

into rules of customary international law.” Id; see also

id. at 3 (“Section 1350 has other important uses and

should not be replaced. There should also, however, be

a clear and specific remedy, not limited to aliens, for

torture and extrajudicial killing”).

Sosa recognized that in passing the TVPA,

Congress “not only expressed no disagreement” with

the judicial determination that the ATS authorized

“judicial recognition of actionable international

norms,” but “seem[s] to have shared” this view

because it “responded to its most notable instance” –

recognition of a cause of action for torture under the

ATS by the Second Circuit in Filártiga – “by enacting

legislation

supplementing

[that]

judicial

determination in some detail.” 542 U.S. at 729-731

(discussing Filártiga v. Peña-Irala, 630 F.2d 876 (2d

Cir. 1980)). A refusal to apply the ATS would violate

rather than respect the separation of powers.

12

D. There is no basis to overturn Sosa.

Cisco urges that the Court’s Bivens precedents

decided since Sosa should foreclose any causes of

action under the ATS, other than those cognizable at

the Founding. Pet. Br. 20-21. But that would overturn

Sosa’s holding that certain limited claims based on

well-established modern international law principles

are actionable. As noted, the post-Sosa Bivens cases

addressing implied constitutional torts absent

congressional authorization are inapplicable to the

ATS’s grant of authority.

Regardless, there is no basis to overturn Sosa.

Stare decisis has “special force” in statutory cases,

since “Congress remains free to alter what [courts]

have done.” Patterson v. McLean Credit Union, 491

U.S. 164, 172-73 (1989). And the Bivens cases

announced no new principles unknown to this Court

when it decided Sosa or when it ruled on the ATS’s

contours three times in the last dozen years. See id. at

173 (declining to overturn prior decision because it

had “not been undermined by subsequent changes or

development in the law.”); Resp. Br. 37-39.

The Sosa Court was well aware that Bivens

actions were already “a relic of the heady days in

which this Court assumed common-law powers to

create causes of action.” 542 U.S. at 742 (Scalia, J.,

concurring) (quotation marks omitted). And the Sosa

Court itself explained that “a decision to create a

private right of action is one better left to legislative

judgment in the great majority of cases.” Id. at 727

(citing Malesko, 534 U.S. at 68 and Sandoval, 532 U.S.

13

at 286-87). Nonetheless, examining the ATS’s text

which provides that federal courts will hear “civil

actions[s]” for “tort[s],” 28 U.S.C. § 1350, and its

history, Sosa, 542 U.S. at 712-24, the Court found that

it was “enacted on the understanding that the

common law would provide a cause of action for [a]

modest number of international law violations.” Id. at

724.

Consequently, the Court established a test

tailored for the ATS’s specific context, adopting a

cautious approach to crafting judicial remedies, while

still effectuating Congress’s mandate. Since Sosa,

courts first ask “whether a plaintiff can demonstrate

that the alleged violation is ‘of a norm that is specific,

universal, and obligatory’” and then ask “whether

allowing this case to proceed under the ATS is a

proper exercise of judicial discretion.” Jesner, 584 U.S.

at 257-58 (quoting Sosa, 542 U.S. at 732). In

prompting federal courts to recognize causes of action

while still exercising “judicial caution” and “vigilant

doorkeeping,” Sosa, 542 U.S. at 727, 729, the Court

carefully crafted a balanced test that this Court has

reaffirmed three times over two decades. This Court

should not now jettison that test in favor of standards

based on precedents of which it was and continues to

be well aware, developed to address fundamentally

different contexts.

Amicus CACI claims Jesner “applied the same

rule to Bivens claims and judge-made ATS claims”

because it quoted Ziglar. CACI Br. 6-7 (discussing

Jesner, 584 U.S. at 264 (quoting Ziglar, 582 U.S. at

14

137)). But Jesner held that “federal courts must apply

the test announced in Sosa.” 584 U.S. at 257. 2 And far

from conflicting with Bivens case law, this Court

noted that “Sosa is consistent with this Court’s

general reluctance to extend judicially created private

rights of action.” Id. at 264-65. In any event, this

Court “does not normally overturn, or [] dramatically

limit, earlier authority sub silentio.” See Shalala v. Ill.

Council on Long Term Care, 529 U.S. 1, 18 (2000).

1F

That Jesner quoted one of this Court’s recent

Bivens decisions addressing judicially implied causes

of action and recognized that the “general principles”

animating those cases applied to the question before

it is unsurprising, since some of the concerns

animating both lines of cases are similar. 584 U.S. at

264-65. But the Bivens and the ATS frameworks are

not coterminous, nor could they be, because of the

fundamental difference: Bivens claims are implied

from the Constitution, and therefore lack the

congressional authorization that the ATS provides. It

is that absence of any congressional authorization to

2 Nor, as CACI argues, has this Court held that a “single sound

reason to defer to Congress is enough” to bar ATS claims. CACI

Br. 7 (quotation marks omitted). This phrase is dicta from a part

of Nestlé that did not garner a majority. 593 U.S. at 635 (Thomas,

Gorsuch, Kavanaugh, JJ.). Jesner, by contrast, suggested courts

should refrain only “if there are sound reasons to think Congress

might doubt the efficacy or necessity of a damages remedy.” 584

U.S. at 264 (quotation marks omitted). But the claims here are

at the center of the ATS’s purpose.

15

the judiciary to recognize claims that has brought

heightened skepticism to Bivens. 3

2F

Indeed, separation-of-powers concerns are

particularly acute in the Bivens context because the

judiciary is authorizing lawsuits for money damages

against employees of a co-equal branch that has not

authorized such suits. See Ziglar, 582 U.S. at 133-35.

(“Congress . . . has a substantial responsibility to

determine whether . . . monetary and other liabilities

should be imposed . . . on employees of the federal

government.”)

In fact, recognizing actionable international

law norms under the ATS’s congressional grant of

authority is similar, not to implying causes of action

under Bivens, but to the well-established authority

federal courts have to hear claims in the admiralty

context. There, federal courts’ authority to adjudicate

claims is derived from the grant of admiralty

jurisdiction in Article III, § 2, cl. 1, of the Constitution,

which Congress implemented via 28 U.S.C. § 1333.

R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 960-61

(4th Cir. 1999). This statute “confer[s] on district

courts exclusive, original jurisdiction of ‘any civil case

of admiralty or maritime jurisdiction’ and ‘any prize

brought into the United States and all proceedings for

3 For the same reasons, CACI’s observation that some Bivens

cases reference ATS cases does not support its argument that the

Bivens cases foreclose ATS claims. CACI Br. 7. This Court’s ATS

cases have never held ATS claims are foreclosed, and its Bivens

cases do not suggest otherwise. Hernández, 589 U.S. at 101, 103;

Egbert, 596 U.S. at 491.

16

the condemnation of property taken as prize.’” Id. at

960 (quoting 28 U.S.C. § 1333).

As with the ATS, the body of admiralty law

applied by the courts is the “law of nations -- the jus

gentium,” which the “framers [of] Article III” had

“clearly in view” and expected the federal courts to

“draw upon” in the “development of the substantive,

common law of admiralty when exercising admiralty

jurisdiction.” Id. (citing The Lottawanna, 88 U.S. 558,

572-78 (1874)). This exception to Erie’s proclamation

that there “is no federal general common law” is the

“most firmly entrenched.” See Sosa, 542 U.S. at 74142 (Scalia J., concurring) (quotation marks omitted).

Adjudicating an ATS federal claim looks much more

like an exercise of this well-established authority than

the judicial implication of Bivens actions. In fact, both

statutes empower federal courts to hear “civil

action[s]” or “civil case[s],” but section 1331 only

allows for cases of “admiralty jurisdiction,” while the

ATS specifically authorizes “tort” claims; its grant of

authority is arguably clearer. That favors recognizing

actionable international law norms under the ATS,

subject to Sosa’s carefully crafted framework, and

refutes any suggestion this Court should overturn

Sosa.

This Court has previously recognized a cause of

action for violations of the law of nations in another

context too. In First National City Bank v. Banco Para

El Comercio Exterior De Cuba, 462 U.S. 611 (1983),

the Court upheld a counterclaim for the expropriation

of property by the Cuban government in Cuba. As

17

here, the claim “ar[o]se[] under international law,”

and the Court applied standards common to federal

common law and international law. Id. at 621-23.

Cisco’s position would likely render the ATS a

nullity. Cisco asserts that there should be no right of

action for claims based on modern international law

norms, but suggests there would be for norms

recognized at the Founding. Pet. Br. 17–21. That

proposed distinction is atextual. The First Congress

“assumed that federal courts could properly identify

some international norms as enforceable in the

exercise of § 1350 jurisdiction.” Sosa, 542 U.S. at 730.

And it did so for all “tort[s] [], committed in violation

of the law of nations,” 28 U.S.C. § 1350, an evolving

body of law. If, as Cisco argues, courts today cannot

recognize a cause of action, it is hard to see how they

could do so even for the three historical norms.

Here, Respondents’ claims for aiding and

abetting torture and other serious crimes are at the

heart of this Court’s ATS jurisprudence. Jesner, 584

U.S. at 262 (quoting Sosa, 542 U.S. at 732)

(“International human-rights norms prohibit acts

repugnant to all civilized peoples—crimes like

genocide, torture, and slavery, that make their

perpetrators ‘enem[ies] of all mankind.’”). Congress

designed the ATS to vindicate these types of

international wrongs to comply with the United

States’ obligation to provide a remedy, particularly

against a U.S. national. See infra § II. The Court

should not now ignore Congress’ will and the United

18

States’ international obligations by treating the ATS

as if it were never enacted.

II.

Precluding aiding and abetting liability in

cases where U.S. nationals abet abuses

from the United States would conflict

with the ATS’s text and purpose and this

Court’s

separation

of

powers

jurisprudence, and is unnecessary.

As Respondents show, and Cisco and the

Government do not dispute, aiding and abetting an

egregious violation of a universally recognized

prohibition such as torture is a “tort [], committed in

violation of the law of nations.” 28 U.S.C. § 1350;

Resp. Br. at 18-21. Nonetheless, they ask the Court to

exclude all aiding and abetting claims on grounds that

some might lead to diplomatic strife at odds with the

First Congress’s original goals in enacting the statute.

Pet. Br. 34-35; U.S. Br. 24-27. They have it

backwards.

At a minimum, the First Congress wanted to

avoid the foreign-relations problems that would arise

if the international community perceived the United

States to be providing safe harbor, free from judicial

liability, for its own nationals when they violated

international law.

Here, U.S. nationals, acting from the United

States, allegedly aided and abetted violations of

universally recognized norms. Since the international

community would consider the U.S. accountable if it

19

did not provide a remedy, this is precisely the type of

case the Framers sought to enable.

The Government does not argue that this case

will interfere with our foreign relations, nor could it.

Resp. Br. 23. And Cisco and the Government provide

no persuasive reason why the Court should exclude

cases like this one that raise no foreign policy

concerns. Doing so would create the international

friction the Framers sought to avoid.

Indeed, after this Court’s limits on ATS claims

in Sosa, Nestlé, Kiobel, and Jesner, the foreign policy

concerns animating those limits will be present in few

if any cases, and will apply rarely, if at all, to suits

against U.S. nationals aiding and abetting abuses

from the United States.

There is a better way. In Sosa, this Court

suggested that courts should consider foreign policy

effects on a “case-specific” basis. 542 U.S. at 733 n.21

(2004). That is enough to handle any foreign policy

concerns that might arise. By contrast, Cisco’s

proposed exclusion is overbroad, would conflict with

the ATS’s text and purpose, and is at odds with this

Court’s separation of powers jurisprudence requiring

courts in virtually all cases to exercise the jurisdiction

Congress grants. Foreign policy concerns should be

addressed case-by-case, not by inventing a bright line

rule barring aiding and abetting liability.

20

A. The First Congress enacted the ATS to

vindicate the law of nations and ensure

that the United States would not be a

safe harbor for its nationals who

violate international law.

As the Court has recognized, agreeing with the

first Trump Administration, the First Congress

passed the ATS “to promote harmony in international

relations by ensuring foreign plaintiffs a remedy for

international law violations in circumstances where

the absence of such a remedy might provoke foreign

nations to hold the United States accountable.” Jesner

584 U.S. at 270 (citing Brief for United States

as Amicus Curiae 7).

Before the ATS, “the inability . . . to ensure

adequate remedies for foreign citizens caused

substantial foreign-relations problems.” Jesner, 584

U.S. at 253. Indeed, the United States was

“embarrassed by its potential inability to provide

judicial relief.” Kiobel, 569 U.S. at 123. Concern about

“the inadequate vindication of the law of nations,” and

the desire for the United States to prove its credibility

as a new nation, thus led the First Congress to enact

the ATS. See Sosa, 542 U.S. at 715-19. The statute

discharged the new nation’s legal and moral duty to

comply with international law. Anne-Marie Burley,

The Alien Tort Statute and the Judiciary Act of 1789:

A Badge of Honor, 83 Am. J. Int’l. L. 461 (1989). This

duty included ensuring that those “who flouted

international law would find no quarter in the United

States.” Id. at 487.

21

The duty applied with perhaps greatest force

with respect to the actions of U.S. nationals, as the

United States was, (and is) internationally

responsible for the torts of its nationals. As Justice

Gorsuch explained in Jesner, “[t]he law of nations

required countries to ensure foreign citizens could

obtain redress for wrongs committed by domestic

defendants,” including through a civil remedy. Jesner,

584 U.S. at 289 (Gorsuch, J., concurring). A leading

Founding-era treatise stated that nations “‘ought not

to suffer’” their subjects to harm the subjects of

another state. Id. at 288 n.3 (quoting E. de Vattel, 1

The Law of Nations, bk. II, §76, p. 145 (1760)).

“Instead, the nation ‘ought to oblige [its] guilty

[subject] to repair the damage’”; a nation that “‘refuses

to cause a reparation to be made . . . or to [otherwise]

punish the guilty, . . . renders [it]self in some measure

an accomplice in the injury, and becomes responsible

for it.’” Id. Blackstone concurred: a sovereign that

failed to provide redress for its citizen’s acts would

itself be considered an abettor. 4 W. Blackstone,

Commentaries on the Laws of England, 67-68 (1791).

B. States are responsible to all other

states if their nationals aid and abet

torture and other human rights

violations.

As in the Founding era, nations today are still

“obliged not to provide safe harbors for their own

nationals who commit [] serious [international law

violations] abroad.” Kiobel, 569 U.S. at 136 (Breyer,

J., concurring). If the United States fails to provide a

22

remedy for torture and other serious human rights

violations by a U.S. national that has aided and

abetted such violations, it would be responsible to all

other nations.

Universally recognized human rights norms,

including torture, are obligations erga omnes partes –

obligations of such universal concern that they are

owed to all states – and thus all states may seek a

remedy for their violation. 4 Every nation has an

interest in every others’ respect for fundamental

rights. Jesner, 584 U.S. at 259-60 (Kennedy, J.)

(opinion). And violators of at least some norms,

including torture, have become, “like the pirate and

slave trader before [them,] hostis humanis generis, an

enemy of all mankind.” Sosa, 542 U.S. at 732

(quotation marks omitted); accord Restatement § 404,

Reporters’ Note 1.

3F

Here, any state could invoke the United States’

responsibility for its failure to prevent its corporations

from aiding and abetting torture, and to provide

4 Restatement (Third) of the Foreign Relations Law of the United

States (“Restatement”) § 702 cmt. o & § 703 cmt. b (A.L.I. 1987);

Questions relating to the Obligation to Prosecute or Extradite

(Belgium v. Senegal), Judgment, 2012 I.C.J. Reports, p. 449 ¶¶

68-69 (July 20); Draft Articles on Responsibility of States for

Internationally Wrongful Acts, with commentaries, Report of the

International Law Commission on the Work of its 53rd Session,

48(1)(b), UN Doc A/56/10(SUPP) (2001) (“ILC Articles”). The ILC

Articles are commonly recognized as customary international

law. See, e.g., Fernando Lusa Bordin, Reflections of Customary

International Law: The Authority of Codification Conventions

and ILC Draft Articles in International Law, 63 THE INT’L &

COMP. L. Q. 535, 536 (2014).

23

access to a remedy when it did. Foreign governments

have already affirmed before this Court their

expectations that the United States provide a remedy

for such conduct. 5 These obligations apply with

particular force here because the United States has

ratified the Torture Convention, which explicitly

precludes “complicity” in torture and requires parties

to “ensure in its legal system that the victim of an act

of torture obtains redress and has an enforceable right

to fair and adequate compensation.” Torture

Convention, art. 4(1), art. 14(1).

4F

While Congress may not have intended to

“make the United States a uniquely hospitable forum

for the enforcement of international norms,” Kiobel,

569 U.S. at 123, it clearly sought to ensure that a U.S.

forum did exist for claims against U.S. nationals

and/or arising from conduct in U.S. territory. See

Kiobel, 569 U.S. at 120 (discussing “prominent

contemporary examples” both “immediately before

and after passage of the ATS”). Where a U.S. national

is responsible for violations of universally-recognized

human rights, the United States is responsible too.

5 Brief of the Governments of the Kingdom of the Netherlands

and the United Kingdom of Great Britain and Northern Ireland

as Amici Curiae in Support of Neither Party, at 35-36, Kiobel v.

Royal Dutch Petroleum, 569 U.S. 108 (2013) (No. 10-1491)

(“Netherlands & U.K. Kiobel Br.”) (“Importantly, in many

circumstances, international human rights law imposes a

positive obligation on States to regulate corporations within their

territory so they are prevented from committing human rights

abuses. . . .”) And again, abetting a violation of a universally

recognized human rights norm itself violates international law.

Resp. Br. 19.

24

This is, in part, why the United States previously

argued against a complete bar on extraterritorial

claims 6 and against corporate immunity. 7 And it is

why other nations have told this Court that it is

“entirely appropriate and desirable” for the United

States “to provide legal sanctions and remedies for

human rights victims in its national courts” against

its own nationals or where wrongful conduct has

taken place in its territory. Netherlands & U.K. Kiobel

Br 35-36. If the U.S. were to preclude a remedy

against U.S. nationals who aided and abetted human

rights violations from the United States, “this country

[might] be perceived as harboring the perpetrator.”

Supp. U.S. Kiobel Br. 4. Addressing claims against

U.S. nationals is “important work” that the ATS was

designed to perform. Jesner, 584 U.S. at 288 (Gorsuch,

J., concurring).

5F

6F

This case is thus a paradigmatic example of the

type of action the First Congress sought to permit.

This Court should apply the statute consistent with

that purpose and our international obligations. See

Murray v. The Schooner Charming Betsy, 6 U.S. 64,

118 (1804) (statute “ought never to be construed to

6 See Supplemental Brief for the United States as Amicus Curiae

in Partial Support of Affirmance, at 4-9, Kiobel v. Royal Dutch

Petroleum, 569 U.S. 108 (2013) (No. 10-1491) (“Supp. U.S. Kiobel

Br.”).

7 Brief for the United States as Amicus Curiae Supporting

Petitioners at 22, Kiobel v. Royal Dutch Petroleum, 569 U.S. 108

(2013) (No. 10-1491) (“U.S. Kiobel Br.”); Brief for the United

States as Amicus Curiae Supporting Neither Party at 6, 8, Jesner

v. Arab Bank, PLC., 584 U.S. 241 (2018) (No. 16-499) (“U.S.

Jesner Br.”).

25

violate the law of nations if any other possible

construction remains.”)

C. Cisco’s call for wholesale repeal of

aiding and abetting liability is

overbroad.

Even if some claims that a defendant aided and

abetted a foreign state’s atrocities from the United

States might, on balance, interfere with foreign policy,

wholesale repeal of aiding and abetting liability would

bar other cases where “the potential implications for

the foreign relations of the United States” are

nonexistent. See Sosa, 542 U.S. at 727. Thus, a

blanket rule would exclude cases the First Congress

sought to allow, and conflict with Congress’s will.

First, at least some claims involving aiding and

abetting foreign state abuses do not remotely interfere

with U.S. foreign policy. Under U.S. law, “a principal

goal of the foreign policy of the United States shall be

to

promote

the

increased

observance

of

internationally recognized human rights by all

countries.” 22 U.S.C. § 2304(a)(1) (1994). Certainly

this case does not conflict with our foreign policy, and

the Government does not argue otherwise. Resp. Br.

23.

Second, other ATS aiding and abetting cases do

not even involve assistance to foreign states’ abuses.

Abuses may occur entirely in U.S. territory. See, e.g.,

Kiobel, 569 U.S. at 120. And some universally

recognized prohibitions, like those on slavery, human

trafficking, piracy, war crimes, and genocide, do not

26

require state action, and thus may be committed by

private parties. Sosa, 542 U.S. at 732 n.20; Kadic v.

Karadzic, 70 F.3d 232, 239-41 (2d Cir. 1995); Adhikari

v. Daoud & Partners, 697 F. Supp. 2d 674, 685-86

(S.D.Tex. 2009). In these cases, the United States will

owe a duty to the victim’s home state, in addition to

the community of nations, to permit redress, which

Congress enacted the ATS to provide.

Petitioners present no reason to effectively

immunize those who, from U.S. territory, aid and abet

state actors, human traffickers, or genocidal rebel

groups in cases that raise no foreign policy concerns.

Indeed, barring such cases threatens foreign

relations; the United States has a strong interest in

not being seen by the international community as an

oasis from which abettors can safely assist those who

commit the worst kinds of abuses. Supra § II.B.

Thus, the Executive might sometimes prefer

such claims proceed, because they support U.S.

foreign policy. The Government has previously argued

that allowing ATS suits where the defendant is a U.S.

resident “is consistent with [U.S.] foreign relations

interests . . . including the promotion of respect for

human rights.” U.S. Supp. Kiobel Br. at 4-5; see also

id. at 13. Petitioner’s plea for blanket impunity thus

undermines the very Executive flexibility it

purportedly promotes. Far better to stick to the caseby-case approach Sosa envisioned.

27

D. The possibility of foreign policy concerns

in other cases provides no basis to create

a bright-line rule excluding aiding and

abetting liability.

Given the Founders’ goal of providing federal

jurisdiction for violations of the law of nations and the

important purposes that the ATS advances, the

appropriate means of managing ATS litigation is to

utilize the tools already available to courts rather

than to create a new liability limitation that conflicts

with international and U.S. law and the ATS’s text

and purpose.

1. This Court’s strict limits on ATS jurisdiction

are specifically designed to avoid foreign policy

problems. These limits radically reduce potential

conflicts with U.S. foreign policy, since cases that

satisfy them will rarely raise foreign policy concerns.

First, Sosa ensures cases proceed only for

violations of a “narrow class” of universally recognized

human rights, like torture, summary execution, and

genocide, subject to “vigilant doorkeeping.” 542 U.S.

at 729, 732. Where all nations, including the U.S.,

have agreed that a right reflects humanity’s shared

values and interests, there is less risk of a case

improperly “claim[ing] a limit on the power of foreign

governments over their own citizens,” that such

government has not already accepted. Id. at 727. The

United States fulfills its obligations to all other

nations by providing a judicial remedy for such

abuses. Supra § II.B.

28

Second, Kiobel and Nestlé preclude unduly

extraterritorial applications of the ATS. Kiobel, 569

U.S. at 124-25; Nestlé, 593 U.S. at 633-34. This avoids

“unintended clashes between our laws and those of

other nations which could result in international

discord.” Kiobel, 569 U.S. at 108 (quotation marks

omitted). But where the claim has sufficient

connection to the United States – such as here, where

U.S. citizens commit actionable conduct in the United

States – “the case involves a permissible domestic

application, even if other conduct occurred abroad.”

Nestlé, 593 U.S. at 633.

Kiobel and Nestlé thus ensure that surviving

ATS claims fit squarely within universally accepted

nationality or territoriality bases for jurisdiction.

Restatement (Third) of Foreign Relations Law of the

United States § 402 (1987). Where such basis exists,

other nations recognize it is “appropriate and

desirable for a State to provide legal sanctions and

remedies for human rights victims.” Netherlands &

U.K. Kiobel Br, 35-36.

Third, Jesner precludes claims against foreign

corporations, finding they “create unique [foreign

policy] problems.” 584 U.S. at 272. But other nations

agree the United States has a right to adjudicate a

U.S.

corporation’s

conduct.

It

remains

“‘uncontroversial’’’ that the “‘United States may . . .

exercise jurisdiction over ATS claims involving

conduct committed by its own nationals . . . consistent

with international law.’” Kiobel, 569 U.S. at 136

29

(Breyer, J., concurring) (quoting Brief for European

Commission as Amicus Curiae 11).

2. Very few ATS cases can satisfy Sosa, Kiobel,

Nestlé, and Jesner, and very few of those will involve

a foreign state’s abuses. American companies do not

often aid and abet state atrocities from our shores.

Any cases that could conceivably interfere with

U.S. foreign policy are properly addressed on a caseby-case basis. See Sosa, 542 U.S. at 733 n.21. Federal

courts have a variety of doctrines that are specifically

designed to manage such issues. Where their

requirements are met, they permit courts to dismiss

specific ATS cases deemed harmful to U.S. foreign

policy.

For example, foreign sovereign immunity bars

suits against foreign governments and their agents or

instrumentalities unless a strict statutory exception

applies. E.g. F.R.G., 592 U.S. at 175-76, 182.

The forum non conveniens doctrine permits

dismissal where a foreign forum is adequate and

“more appropriate and convenient.” Sinochem Int’l

Co. v. Malaysian Int’l Shipping Corp., 549 U.S. 422,

425 (2007). That analysis considers factors such as

local interest in deciding the case. Piper Aircraft Co.

v. Reyno, 454 U.S. 235, 241 n.6 (1981).

The international comity doctrine permits

abstention to defer to a foreign tribunal’s proceedings

regarding the same issue; courts weigh, on a case-bycase basis, our government’s, the foreign forum’s, and

the international community’s interests, as well as

30

the foreign forum’s adequacy. E.g. Ungaro Benages v.

Dresdner Bank AG, 379 F.3d 1227, 1237–39 (11th Cir.

2004).

The “act of state doctrine” precludes courts

“from inquiring into the validity of the public acts of a

recognized foreign sovereign power committed within

its own territory” in the absence of “unambiguous

agreement regarding controlling legal principles.”

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,

401, 428 (1964).

And the political question doctrine prevents

courts from “supplant[ing] a foreign policy decision of

the political branches with the courts’ own unmoored

determination of what United States policy . . . should

be,” rather than applying law. Zivotofsky ex rel.

Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012).

Courts have dismissed ATS cases implicating

particular foreign policy concerns under these

doctrines. 8 While Sosa, Kiobel, Nestlé, and Jesner will

dispose of most potentially problematic cases as a

threshold matter, these doctrines still exist to address

the rare case unduly threatening foreign policy

interests.

7F

3. These established doctrines carefully balance

the Executive’s foreign policy prerogatives and the

Judiciary’s duty to exercise jurisdiction and the

8 See, e.g., Corrie v. Caterpillar, 503 F.3d 974, 980-84 (9th Cir.

2007); Hwang Geum Joo v. Japan, 413 F.3d 45, 49-53. (D.C. Cir.

2005).

31

authority Congress granted. By contrast, wholesale

repeal of abetting liability to avoid hypothetical, casespecific foreign policy concerns would upset that

balance by abdicating the Judiciary’s duty. Nothing in

the ATS permits, let alone requires this.

The ATS provides jurisdiction to hear aiding

and abetting claims. Resp. Br. 30-31. Federal courts

have a “virtually unflagging obligation” to exercise

jurisdiction Congress has created. Colo. River Water

Conservation Dist., 424 U.S. at 817. A court may not

“shirk this responsibility” and refuse to adjudicate a

dispute “merely because [a] decision may” affect “the

conduct of this Nation’s foreign relations,” Japan

Whaling Assn. v. American Cetacean Soc., 478 U.S.

221, 230 (1985), or embarrass a foreign government.

W.S. Kirkpatrick & Co., Inc. v. Env’t Tectonics Corp.,

Int’l, 493 U.S. 400, 409-10 (1990). 9 It is “error to

suppose,” as Cisco implies, “that every case or

controversy which touches foreign relations lies

beyond judicial cognizance.” Baker v. Carr, 369 U.S.

186, 211 (1962).

The political branches’ responsibility to

undertake foreign policy does not vitiate the

judiciary’s constitutional obligation to determine legal

questions. Applying law, even to cases involving

foreign policy, is “a familiar judicial exercise.”

Zivotofsky, 566 U.S. at 196. More specifically, courts

may hear claims involving international law where

the norms at issue enjoy wide consensus, which Sosa

8F

9 Indeed, since our Republic’s beginning, this Court has heard

cases challenging the legality of even government action

involving foreign affairs. E.g. Little v. Barreme, 6 U.S. (2 Cranch)

170, 177-79 (1804); Zivotofsky, 566 U.S. at 189, 193, 201.

32

requires in an ATS case; this “reflect[s] the proper

distribution of functions between the judicial and

political branches.” Sabbatino, 428 U.S. at 427-28.

All kinds of cases may affect foreign policy.

There is no reason to adopt broad, new, ATS-specific

liability limits rather than simply applying this

Court’s long–established doctrines. “[T]he preferable

approach is to weigh carefully the relevant

considerations on a case-by-case basis. This will

permit the judiciary to act where appropriate in light

of the express legislative mandate of the Congress in

Section 1350, without compromising the primacy of

the political branches in foreign affairs.” Kadic, 70

F.3d at 249.

CONCLUSION

Congress specifically authorized the federal

courts to hear claims that involve egregious violations

of universally recognized norms by Americans acting

in the United States. This includes where, as alleged

here, U.S. citizens aid and abet abuses from our

territory. Precluding relief for these claims would

transgress our international obligations, harm our

foreign policy, and directly conflict with the statute’s

text and the Framers’ vision. The Court should affirm.

Respectfully submitted,

James K. Green

Counsel of Record

JAMES K. GREEN, P.A.

Suite 306, Flagler Center

501 South Flagler Drive

33

West Palm Beach, FL 33401

Tel: (561) 659-2029

Jack Scarola

SEARCY

DENNEY

SCAROLA

BARNHART & SHIPLEY, P.A.

2139 Palm Beach Lakes Blvd.

P.O. Drawer 3626

West Palm Beach, FL 33409

Tel: (561) 686-6300

March 27, 2026

Counsel for amici curiae

34

Appendix A

Susan Bandes is the Centennial Distinguished

Professor of Law, DePaul University College of Law.

Michael C. Dorf is the Robert S. Stevens Professor

of Law at Cornell Law School.

Eric M. Freedman is the Siggi B. Wilzig

Distinguished Professor of Constitutional Rights

Emeritus at the Maurice A. Deane School of Law at

Hofstra University.

Jonathan Hafetz is a Professor of Law at Seton

Hall Law School.

Jules Lobel is the Bessie McKee Walthour Endowed

Chair at the University of Pittsburgh School of Law.

Kermit Roosevelt is the David Berger Professor for

the Administration of Justice at the University of

Pennsylvania Carey Law School.

David L. Sloss is the John A. and Elizabeth H.

Sutro Professor of Law and Co-Director of the Public

Interest JD program at Santa Clara University

School of Law.

Beth Stephens is Distinguished Professor Emerita

at Rutgers Law School.