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Six Ninth Circuit Judges Bemoan Extension of Liability Under Alien Tort Statute
Five Join in Bumatay’s Dissent From Denial of En Banc Rehearing in Case Allowing Possible Liability of U.S. Company for Alleged Aid in Persecution by China
By a MetNews Staff Writer
Six Ninth U.S. Circuit Court of Appeals judges, all appointees of Republican presidents, yesterday dissented from an order denying a petition for rehearing en banc by the Ninth U.S. Circuit Court of Appeals of a panel decision that allows plaintiffs to proceed under the Alien Tort Statute in seeking a holding that a U.S. technology company is liable for involvement in the alleged persecution of a religious group by Chinese governmental officials.
The underlying suit was brought by U.S. and Chinese citizens who are practitioners of Falun Gong, a new religion banned in China as an evil cult. They allege that they or their family members residing in China are victims of human rights abuses committed by the Chinese Communist Party and Chinese government officials.
In 2011, the plaintiffs filed a class action suit against U.S. technology giant Cisco Systems Inc., former CEO John Chambers (retired in 2017), and former China Vice President Fredy Cheung, alleging, among other things, that the defendants aided and abetted Chinese officials in violation of the Alien Tort Statute, codified at 28 U.S.C. §1350 (“ATS”).
The ATS, originally enacted during the first Congress in 1789, provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
Specifically, the complaint alleges that Cisco, operating largely from its San Jose headquarters, designed and helped maintain a surveillance security network—known in China as the “Golden Shield” and referred to by Cisco as “Policenet”—for Chinese officials to use to identify and capture Falun Gong practitioners and subject them to torture, forced labor, and prolonged detention in violation of international law.
Aiding and Abetting
On Sept. 5, 2014, judgment in favor of the defendants was entered following the dismissal of the complaint by District Court Judge Edward J. Davila of the Northern District of California for failure to state a claim. Davila found that the plaintiffs did not adequately establish aiding and abetting liability under international law as required for liability under ATS.
In 2023, a Ninth Circuit panel majority, in an opinion written by Senior Circuit Judge Marsha S. Berzon and joined by Senior Circuit Judge A. Wallace Tashima, reversed the dismissal of the ATS claims against the corporate defendant.
Berzon wrote:
“[W]e…reaffirm that aiding and abetting liability is a norm of customary international law with sufficient definition and universality to establish liability under the ATS. Because recognizing aiding and abetting liability does not raise separation-of-powers or foreign policy concerns…, such liability is cognizable under the ATS.
“Plaintiffs have plausibly alleged that corporate defendant Cisco took actions constituting the actus reus and satisfied the mens rea for aiding and abetting liability.”
Circuit Judge Morgan Christen dissented, arguing that extending liability for aiding and abetting alleged human rights violations committed in China is inconsistent with the purposes behind ATS.
Berzon, joined by Tashima and Senior Circuit Judge Richard A. Paez, yesterday wrote in favor of respecting the denial of rehearing in banc, saying that a 2004 U.S. Supreme Court decision dictates the result reached by the panel.
Circuit Judge Patrick J. Bumatay authored the dissent, joined in by Circuit Judges Consuelo M. Callahan, Sandra S. Ikuta, Mark J. Bennett, Ryan D. Nelson, and Lawrence VanDyke.
Circuit Judges Kim Wardlaw, Jacqueline H. Nguyen, and Daniel P. Collins did not participate in the deliberations or vote on en banc reconsideration.
Bumatay’s Dissent
Bumatay noted that ATS does not create new tort causes of action but instead affirms tort liability for violations of international law. Courts first ask whether the claim rests on norms of international character accepted by nations across the world, then consider whether allowing a case to proceed under the ATS is a proper exercise of judicial discretion or violates separation-of-powers principles, he said.
Bumatay pointed to language in concurring opinions in ATS jurisprudence by U.S. Supreme Court Justices Antonin Scalia, Clarence Thomas, and Neil Gorsuch cautioning that the act does not create new causes of action and wrote:
“When asking who may create a new cause of action for violations of international law, our answer is merely—two judges of our court. Today, we do not revisit the view of a divided panel of our court that recognizes a brand-new type of liability—aiding and abetting—for any tort claimed under a broad conception of international law. Because the panel majority viewed this accomplice liability to be ‘a norm of customary international law,’ it felt free to inaugurate a new cause of action under the ATS.”
He continued:
“We make three main errors in refusing to reconsider this case en banc. First, we failed to restrict ATS liability to causes of action comparable to historically recognized torts. Second, we violated the separation of powers in pronouncing a new cause of action—even though Congress has continued to legislate in this very area. And third, we ignored serious foreign-policy concerns—permitting federal courts to intrude in the delicate relations with another world superpower. All three reasons show that the Ninth Circuit got it wrong here.”
International Law
Bumatay said that “[r]ather than looking at any historical paradigms, the panel majority simply endorsed the supposed ‘consensus’ among modern international-law documents to find universal accomplice liability” based on, among other things, the Nuremberg and Rwanda tribunals. Unpersuaded, he reasoned:
“This analysis is incomplete. Whether aiding and abetting exists as a general matter in international law isn’t the end of the inquiry. After all, aiding and abetting is not a tort by itself, but a type of liability that attaches to the commission of one….Since aiding and abetting doesn’t exist in the abstract, the question remains: aiding and abetting what?....So it was incorrect for the panel majority to skip to universal aiding-and abetting liability without first assessing whether accomplice liability attached to the underlying conduct at issue for each tort.”
He added:
“[W]e should have analyzed the liability available to each underlying tort under international law on a norm-by-norm basis. And next, we should have looked to historical paradigms to see whether universal civil aiding-and-abetting liability should be part of our federal common law. By circumventing this analysis, we skirt the cautionary roadblocks set by the Supreme Court in creating new causes of action.”
Separation of Powers
The jurist said that “[e]ven more troublesome here is the affront to the separation of powers.” He noted that the first Congress “knew exactly how to codify aiding-and-abetting liability” but did not do so and more recent congressional actions similarly failed to include accomplice liability in changes to the ATS.
Bumatay said the decision to extend liability to accomplices under the ATS “turns the separation of powers on its head” and wrote:
“The separation of powers means that courts don’t exercise legislative authority. Period….[I]n recognizing liability for violations of international law, that the political branches entered the field is reason enough for us to exit it. Just because the political branches left something unregulated—such as accomplice liability—doesn’t mean we may fill the void at will. So even assuming the political branches haven’t comprehensively regulated Cisco’s products and services, that doesn’t mean we may trade positions with our elected officials and legislate in the margins. By failing to cabin our role, we cross into the uncomfortable territory of judicial lawmaking—an area foreign to our Constitution.”
Foreign Policy Concerns
Bumatay cautioned:
“In this case, the plaintiffs seek to hold China and its government accountable for purported violations of international law through its alleged aiders and abettors. Allowing this suit to go forward thus means that a federal court may participate in declaring that the Chinese Communist Party and Ministry of Public Security violated international law in its treatment of Falun Gong practitioners. As Judge Christen noted in dissent, ‘[s]uch a finding could have serious ramifications for Sino-American relations, fraught as they already are.’ ”
The judge said:
“The panel majority’s answer to the concern for our country’s relationship with China was largely ‘so what?’ According to the panel majority, the more important consideration is that the ‘international community’ might question our failure to provide a forum to hold accountable aiders and abettors of international law violations….While that may be true, the Judiciary has zero competence to make such a decision.”
He declared that “[a]ll this provides compelling reason to exercise our discretion against aiding-and-abetting liability here.”
The case is Doe I v. Cisco Systems Inc., 15-16909.
Berzon, Tashima and Paez were appointed by Democratic President Bill Clinton.
Bumatay, Bennett, Nelson, and VanDyke were placed on the Ninth Circuit by Republican President Donald Trump and Callahan and Ikuta named to the court by Republican President George W. Bush.
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