Ninth Circuit paves way for Falun Gong members to sue Cisco for aiding and abetting torture in China

(CN) — Over the dissent of six of its judges, a Ninth Circuit Court of Appeals panel ruled Tuesday morning to deny an en banc rehearing to Chinese religious group suing Cisco Systems under the Alien Tort Statute for aiding and abetting China’s violation of their human rights.

The plaintiffs in the class action belong to Falun Gong, a Chinese religious group with Buddhist and Taoist influences targeted by the Chinese Communist Party since the 1990s when the group's influence began to grow.

According to the plaintiffs' 2011 lawsuit, Cisco Systems developed a surveillance software called Golden Shield and sold it to the Chinese Communist Party. The software was designed specifically to help the Chinese government track down members of Falun Gong, and the plaintiffs say Cisco developed Golden Shield even though it knew the software would be used to commit human rights violations.

In an order Tuesday morning, Senior U.S. Circuit Judge Marsha Berzon, a Bill Clinton appointee, denied the plaintiffs' petition for an en banc panel rehearing of the case after it was dismissed by a lower court and then subsequently revived by a divided Ninth Circuit panel.

Berzon wrote that the panel was not free to depart from the precedent of Sosa v. Alvarez-Machain, a 2004 Supreme Court case that narrowed the application of the Alien Tort Statute, which allows non-U.S. citizens to sue in U.S. federal courts for violations of international law.

“The panel majority faithfully applied the Sosa framework to the facts of this case. Judge Bumatay does not really take issue with the majority’s application of Sosa. Instead, he recasts Sosa’s standard in a new mold," Berzon wrote, directly responding to U.S. Circuit Judge Patrick Bumatay in the dissent he penned on behalf of himself and five other Ninth Circuit judges who voted for granting an en ban rehearing.

"In service of this endeavor, he relies largely on plurality opinions and concurrences and invokes issues not raised by the parties, violating the principle of party presentation. Because this court is not free to depart from Sosa, the decision to deny rehearing en banc was correct,” Berzon added.

Bumatay, a Donald Trump appointee, wrote in his dissent that the panel overstepped its authority and failed to assess whether accomplice liability attaches to the underlying conduct for each tort; instead, the panel found it sufficient that aiding-and-abetting liability exists as a general matter in international law.

"In one single decision, our circuit dismantles the crucial barrier that separates the three branches of government," he wrote. "We diminish the respect for the Judiciary by aggrandizing our role. So just like that, the separation of powers wall comes tumbling down."

He also faulted the panel majority for dismissing the serious foreign-policy concerns that the case raises. Even though China is not a defendant, the secondary liability that the Falun Gong members seek to impose on Cisco requires the federal court to adjudicate China’s responsibility for alleged violations of international law, Bumatay wrote.

Bumatay’s invocation of foreign policy concerns was also offbase, Berzon said, because the recognition of aiding and abetting liability in this case does not trigger Sosa’s principal foreign policy concern — that the statute's claims could impose liability on sovereign nations for behavior with respect to their own citizens.

Falun Gong members claim that the government of China subjected them to the torts of prolonged arbitrary detention, disappearance, extrajudicial killing, forced labor, cruel treatment and crimes against humanity. They have not sued China or Chinese officials but have instead sued Cisco for aiding and abetting the torts by providing computer-networking hardware and software to China.

No claims were brought against China or Chinese government officials, Berzon noted, so claims for aiding and abetting liability against a U.S. corporation like Cisco do not present the same foreign policy concerns.

“The foreign policy implications here are not of sufficient concern to the United States government to trigger its involvement at this juncture,” Berzon wrote. “Although Judge Bumatay takes a different view of the foreign policy implications of this case, a difference of opinion regarding prudential concerns as applied to particular facts is an insufficient reason for en banc review.”

Berzon was joined in the majority opinion by Senior U.S. Circuit Judge Atsushi Tashima, a Bill Clinton appointee, and U.S. Circuit Judge Morgan Christen, a Barack Obama appointee.

U.S. Circuit Judges Consuelo M. Callahan and Sandra S. Ikuta, both George W. Bush appointees, along with Donald Trump appointees Mark J. Bennett, Ryan D. Nelson and Lawrence VanDyke, joined Bumatay in the dissent.

U.S. Circuit Judges Kim McLane Wardlaw, Jacqueline H. Nguyen and Daniel P. Collins — Clinton, Obama and Trump appointees respectively — did not participate in the deliberations or vote in this case.

Neither representatives for Cisco or the plaintiffs responded to requests for comment on the panel’s decision before publication.

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