Xiong v. Lao People's Democratic Republic

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 18 2026 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SENG XIONG, et al., No. 25-5914 D.C. No.

Plaintiffs - Appellants, 2:23-cv-02531-DJC-SCR v.

MEMORANDUM*

LAO PEOPLE’S DEMOCRATIC REPUBLIC, et al.,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of California Daniel J. Calabretta, District Judge, Presiding

Submitted August 14, 2026** Reno, Nevada

Before: BADE, FORREST, and VANDYKE, Circuit Judges.

Plaintiffs brought this action under the Alien Tort Statute, 28 U.S.C. § 1350 (ATS), for atrocities allegedly committed by Defendants in Lao People’s Democratic Republic and the United States as part of a covert campaign to wage

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

genocide against the Hmong people and prevent the creation of a Hmong national homeland. Plaintiffs appeal the dismissal of their complaint for lack of subject- matter jurisdiction1 and the denial of their motions for leave to amend and for entry of default judgment against the non-appearing Defendants. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. Motion to Dismiss. We review de novo a district court’s dismissal for lack of subject-matter jurisdiction. See United Aeronautical Corp. v. U.S. Air Force, 80 F.4th 1017, 1022 (9th Cir. 2023). Plaintiffs assert that Defendant Dao Yang is liable under the ATS for spying for the Lao People’s Democratic Republic and “intentional[ly] interfer[ing] with [Plaintiffs’] prospective economic advantage” by impeding their efforts to create a nation-state for the Hmong people, in violation of international law. Because Congress has not recognized the cause of action that Plaintiffs assert, we affirm the district court.

The ATS provides that “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.” 28 U.S.C. § 1350. The Supreme Court has “stressed that ‘the ATS is a jurisdictional statute creating no new causes of action.’” Cisco Sys., Inc. v. Doe I, 609 U.S. ----, 146 S. Ct. 1882, 1887 (2026) (citation omitted).

1 We construe the district court’s August 29, 2025, order as a dismissal for failure to establish jurisdiction under the ATS.

3

Just this year, the Court instructed that “the power to create causes of action belongs to Congress,” id. at 1890, and that “judicially created causes of action offend the separation of powers in almost every circumstance,” id. at 1891. Simply put, “[c]ourts cannot create new rights of action to remedy violations of international law” under the ATS.2 Id. at 1892.

Plaintiffs’ claim against Yang based on intentional interference with prospective economic advantage asks us to do just that.3 Because accepting that request would exceed the authority of the federal judiciary, we decline to recognize Plaintiffs’ cause of action and affirm the district court’s dismissal for lack of subject- matter jurisdiction. Additionally, we affirm the district court’s denial of Plaintiffs’ motion for leave to amend because any amendment would be futile. Curtis v. Inslee,

2 The Supreme Court’s decision in Sosa v. Alvarez-Machain assumed that the ATS gave federal courts jurisdiction over “those torts corresponding to Blackstone’s three primary offenses: violation of safe conducts, infringement of the rights of ambassadors, and piracy.” 542 U.S. 692, 724 (2004). Cisco did not revisit this proposition or endorse it. 146 S. Ct. at 1892. To the extent the principle that federal courts have some power to recognize specified historic causes of action that existed before passage of the ATS has continuing relevance, that issue is not presented here where Plaintiffs do not argue that the cause of action they advance falls within “the Blackstone three.” Id.

3 Plaintiffs’ operative complaint identified a variety of other torts. Plaintiffs’

Opening Brief advances arguments only as to the alleged tort of intentional interference with prospective economic advantage. Because arguments “omitted from the opening brief are usually deemed forfeited,” Lui v. DeJoy, 129 F.4th 770, 780 (9th Cir. 2025) (internal quotation marks and citation omitted), we decline to address whether the other alleged violations would be actionable under the ATS.

4

154 F.4th 678, 695 (9th Cir. 2025).

2. Motion for Default Judgment. Because Plaintiffs cannot allege facts sufficient to support a cause of action under the ATS, the district court lacked jurisdiction to enter default judgment against the non-appearing Defendants. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (“[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety.”). Thus, the district court did not err in denying Plaintiffs’ motion for default judgment.

AFFIRMED.