Nso VS Wahtsapp

No.
21-1338
IN THE
Supreme Court of the United States
____________________
NSO GROUP TECHNOLOGIES LIMITED AND Q CYBER
TECHNOLOGIES LIMITED,
Petitioners,
v.
WHATSAPP INC. AND META PLATFORMS, INC.,
Respondents.
____________________
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
____________________
SUPPLEMENTAL BRIEF OF RESPONDENTS
____________________
Anton Metlitsky Michael R. Dreeben

O’MELVENY & MYERS LLP Counsel of Record
Times Square Tower O’MELVENY & MYERS LLP
7 Times Square 1625 Eye St., NW
New York, NY 10036 Washington, DC 20006
(212) 326-2000 (202) 383-5300
[email protected]
SUPPLEMENTAL BRIEF OF RESPONDENTS
NSO’s petition expressly requested that this Court
call for the views of the Solicitor General. It explained
that such an invitation was appropriate because “Re-
spondents have speculated that the government
would oppose NSO’s immunity claim,” but “the gov-
ernment has not yet had an opportunity to speak for
itself on the legal issue.” Pet. 22. The petition also
asserted that the government has “concerns about de-
cisions that could expose its agents to reciprocal law-
suits abroad—which is precisely what the decision be-
low portends.” Id. Indeed, NSO noted that “inviting
the Solicitor General’s views” was especially “appro-
priate” because the government’s position on immun-
ity is crucial, yet “the Court has no other way to learn
the United States’ position,” Reply 12, without calling
for the Solicitor General’s views.
The United States has now presented its position,
and it is unequivocal—NSO is not entitled to immun-
ity, and this case is not worthy of this Court’s review.
The government took no definitive position on the
question whether the Foreign Sovereign Immunities
Act categorically precludes foreign entities’ claims of
common-law immunity. U.S. Br. 7. But the govern-
ment explained that the answer to that question did
not matter because “NSO plainly is not entitled to im-
munity here.” Id. That is so because:
• “The State Department has not filed a sugges-
tion of immunity in this case.” Id.
• There “is no established practice—or even a
single prior instance—of the State Department
2
suggesting an immunity for a private entity
acting as an agent of a foreign state.” Id.
• “[N]o foreign state has supported NSO’s claim
to immunity; indeed, NSO has not even iden-
tified the states for which it claims to have
acted as an agent.” Id.
The government also provided additional reasons
to deny review beyond the lack of merit of NSO’s claim
of immunity. The government agreed with respond-
ents that the decision below “does not conflict with
any decision of this Court,” id., including Samantar v.
Yousuf, 560 U.S. 305 (2010). It stated that the “ques-
tion presented has not divided the courts of appeals—
indeed, it has seldom arisen at all.” U.S. Br. 7. “And
this unusual case,” it explained, “would be a poor ve-
hicle for considering that question in any event.” Id.
Thus, the government concluded, the “petition for a
writ of certiorari should be denied.” Id.
Having requested that the Court seek the govern-
ment’s views about the certworthiness of this case—
and having received the government’s resounding
“no”—NSO now requests that the Court disregard the
government’s views and grant review. NSO Supp. Br.
1-10. That suggestion lacks merit.
The many reasons for denying certiorari set forth
in respondents’ brief in opposition and in the govern-
ment’s invitation brief need not be repeated. Re-
spondents submit this supplemental brief to address
three mischaracterizations in NSO’s supplemental
submission.
First, NSO’s primary ground for review—that the
“government agrees that the Ninth Circuit incorrectly
3
decided” that the FSIA precluded private foreign en-
tities from seeking common-law immunity, NSO
Supp. Br. 1—overstates the government’s position. In
fact, the government said that the “United States is
not prepared at this time to endorse that categorical
holding,” U.S. Br. 7 (emphasis added), but it did not
definitively reject it either. Rather, the government
explained reasons why that question may warrant a
different conclusion in circumstances other than
those presented in this case.
The government thus recognized that the struc-
ture of the FSIA and its legislative history provided
support for the Ninth Circuit’s decision, but (in the
government’s view) do not definitively resolve the is-
sue for all entities. Id. at 8-10. At the same time, the
United States noted that “NSO has not identified—
and the United States is not aware of—any history of
State Department suggestions of immunity on behalf
of private entities acting as agents of foreign states.”
Id. at 10. Nevertheless, the United States suggested
that it may favor a more nuanced approach under
which the FSIA’s effect on private-entity-immunity
claims might differ depending on the circumstances.
For example, the FSIA might preclude such claims
when they involve commercial activity but might not
necessarily do so when a private entity is assisting a
foreign state “in connection with the exercise of cer-
tain core sovereign authority.” Id. at 12-13.
That discussion concludes that “the FSIA need not
be read to entirely foreclose the recognition of such an
immunity in the future if the Executive—after consid-
ering the nature of the entity and its role as an agent
and other relevant considerations . . .—determined
4
that a suggestion of immunity was appropriate in a
particular context or circumstance.” Id. at 13. But
the Executive did not make such a determination
here. Id. That falls well short of endorsing NSO’s
categorical position that the court below was wrong.
See NSO Supp. Br. 1-2. And, importantly, the United
States submitted that this Court should not address
that legal issue in this case because “the prerequisites
for any such immunity are not present here.” U.S. Br.
13-14 (providing reasons). NSO provides no sound
reason for this Court to reject the government’s con-
sidered view.
Second, the government’s submission definitively
rejects one of NSO’s principal arguments in favor of
certiorari—viz., that the Ninth Circuit’s holding
would disadvantage the United States by precluding
it from arguing in foreign courts for federal-contractor
immunity. E.g., Pet. 15; Reply 6. NSO’s speculation
that the government had such reciprocity concerns
was a major ground for NSO’s urging the Court to call
for the Solicitor General’s views. E.g., Pet. 22 (argu-
ing that the Court should seek the government’s
views because the government “has expressed con-
cerns about decisions that could expose its agents to
reciprocal lawsuits”). Yet the government’s brief was,
again, unequivocal in rejecting NSO’s assertion: The
“United States does not agree” with NSO’s contention
that “the court of appeals’ decision threatens the
United States’ ability to rely on private contractors
abroad.” U.S. Br. 16 n.6. The government’s lack of
concern with the reciprocity issues that NSO’s peti-
tion raised further undermines its case for certiorari.
5
Third, the government’s definitive conclusion that
NSO is not entitled to common-law immunity renders
the petition’s vehicle problems—already substantial,
see Opp. 25-31—insurmountable. NSO says that it
does not matter whether it would ultimately be enti-
tled to common-law immunity because this Court
could decide whether the FSIA categorically pre-
cludes immunity and, if it does not, remand to conduct
the common-law immunity analysis, as the Court did
in Samantar. NSO Supp. Br. 3-5. The problem for
NSO, though, is that the government’s brief confirms
that a remand here would be pointless.
The common-law immunity inquiry turns on
whether the State Department has made a suggestion
of immunity or, if it has not, whether “the ground of
immunity is one which it is the established policy of
the [State Department] to recognize.” Samantar, 560
U.S. at 312 (internal quotation marks and citation
omitted); see NSO Supp. Br. 5 (agreeing with this
standard). NSO acknowledges that the State Depart-
ment has not filed a suggestion of immunity. And
through its brief in this Court, the State Department
has now conclusively determined that it would not
recognize NSO’s immunity under its established poli-
cies. U.S. Br. 13-14. That determination closes the
door on NSO’s claim of immunity.
In Samantar itself, the court of appeals had re-
manded for a determination whether the former offi-
cial could qualify for common-law immunity. 560 U.S.
at 310-11. This Court did likewise after holding that
the FSIA did not itself preclude that claim. Id. at 325-
26. The United States favored a remand as well. U.S.
Amicus Br. 28, No. 08-1555 (endorsing remand as the
6
“correct disposition” “to consider whether petitioner is
entitled to official immunity under background prin-
ciples recognized by the Executive and the courts”).
Here, however, the United States has explained that
background principles refute NSO’s claim for immun-
ity. And NSO does not explain how a court could con-
clude that NSO is entitled to immunity under estab-
lished State Department policies when the State De-
partment itself has determined that immunity is not
warranted under those policies. See Opp. 22 (citing
Republic of Mexico v. Hoffman, 324 U.S. 30, 35 (1945)
(it is “not for the courts . . . to allow an immunity on
new grounds which the government has not seen fit
to recognize”)). NSO does not identify a single case
that has recognized common-law immunity despite
the State Department’s determination that immunity
is not warranted.
There is thus no possibility, in light of the govern-
ment’s brief, that NSO could succeed in its claim of
immunity. If the Court is ever to consider the ques-
tion presented in the petition, it should await a case
where the answer to that question could plausibly
make a difference. Here, it could not.
CONCLUSION
The petition for a writ of certiorari should be de-
nied.
7
Respectfully submitted,
Anton Metlitsky Michael R. Dreeben
O’MELVENY & MYERS LLP Counsel of Record
Times Square Tower O’MELVENY & MYERS LLP
7 Times Square 1625 Eye Street N.W.
New York, NY 10036 Washington, D.C. 20006
(212) 326-2000 (202) 383-5300
[email protected]
December 7, 2022

Nso VS Wahtsapp

Uploaded by

Copyright:

Available Formats

Nso VS Wahtsapp

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Nso VS Wahtsapp

Uploaded by

Copyright:

Available Formats

No.

Anton Metlitsky Michael R. Dreeben

You might also like