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
`____________________
`
`Michael R. Dreeben
` Counsel of Record
`O’MELVENY & MYERS LLP
`1625 Eye St., NW
`Washington, DC 20006
`(202) 383-5300
`mdreeben@omm.com
`
`
`Anton Metlitsky
`O’MELVENY & MYERS LLP
`Times Square Tower
`7 Times Square
`New York, NY 10036
`(212) 326-2000
`
`
`
`
`
`
`
`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
`____________________
`
`Michael R. Dreeben
` Counsel of Record
`O’MELVENY & MYERS LLP
`1625 Eye St., NW
`Washington, DC 20006
`(202) 383-5300
`mdreeben@omm.com
`
`
`Anton Metlitsky
`O’MELVENY & MYERS LLP
`Times Square Tower
`7 Times Square
`New York, NY 10036
`(212) 326-2000
`
`
`
`
`
`
`
`
`
`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
`
`mdreeben@omm.com
`
`
`
`December 7, 2022
`
`
`
`
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