Amazon Services LLC v. United States Department of Agriculture

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 3, 2023 Decided July 26, 2024
No. 22-1052
AMAZON S ERVICES LLC,
P ETITIONER
v.
UNITED S TATES D EPARTMENT OF A GRICULTURE,
R ESPONDENT
On Petition for Review of an Order
of the Department of Agriculture
William Brendan Murphy argued the cause for petitioner.
With him on the briefs were Alison R. Caditz and Lawrence
Reichman.
Brad Hinshelwood, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Mark B. Stern, Attorney.
Before: S RINIVASAN , Chief Judge, WALKER , Circuit
Judge, and R OGERS , Senior Circuit Judge.
Opinion for the Court filed by Chief Judge S RINIVASAN .

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S RINIVASAN , Chief Judge: The Plant Protection Act and
the Animal Health Protection Act authorize the Department of
Agriculture to penalize entities that “aid, abet, cause, or
induce” the unlawful importation of plant and animal products.
This case arose from overseas sellers’ shipments of plant and
animal products to Amazon fulfillment centers in the United
States for eventual distribution to domestic consumers. Federal
agents seized the packages and determined that they contained
noncomplying products. The Department concluded that
Amazon, by making available its fulfillment centers and
providing associated fulfillment services, had aided, abetted,
caused, or induced the overseas sellers’ unlawful importations.
The Department imposed a $1 million fine against Amazon.
We set aside the Department’s order. As the Supreme
Court recently explained, civil aiding-and-abetting liability
generally attaches only to conscious and culpable participation
in unlawful conduct. The Plant Protection Act and Animal
Health Protection Act incorporate that settled understanding.
While overseas sellers might use Amazon’s fulfillment service
in furtherance of unlawfully importing their products,
Amazon’s mere provision of a neutral service does not amount
to conscious and culpable participation in the sellers’
wrongdoing. We therefore grant Amazon’s petition for review.
I.
A.
The Plant Protection Act (PPA) seeks to ensure the
“detection, control, eradication, suppression, prevention, [and]
retardation of the spread of plant pests or noxious weeds.” 7
U.S.C. § 7701(a). The Animal Health Protection Act (AHPA)
similarly aims to ensure the “prevention, detection, control, and

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eradication of diseases and pests of animals.” Id. § 8301(a).
To those ends, the PPA and AHPA authorize the Secretary of
Agriculture to prohibit or restrict the importation of plant and
animal products, respectively, as necessary to prevent the
introduction of diseases into or the dissemination of diseases in
the United States. Id. §§ 7712(a), 8303(a)(1). Both statutes
allow the Secretary to impose civil and criminal penalties on
persons who violate the statutes or the Secretary’s
implementing regulations. Id. §§ 7734, 8313; see also id.
§§ 7702(19), 8302(16).
A person imports a covered product by “mov[ing]” it into
“the territorial limits of the United States.” Id. §§ 7702(5),
8302(7). And, of particular relevance here, the statutes define
“mov[ing]” a covered product to include, among other actions,
“aid[ing], abet[ting], caus[ing], or induc[ing]” the “carrying,
entering, importing, mailing, shipping, or transporting” of the
covered product into the United States. Id. §§ 7702(9)(B),
8302(12)(B). In other words, a person who aids, abets, causes,
or induces the importation of a covered product in violation of
the PPA or AHPA is herself liable for violating the statute.
When the Department of Agriculture suspects that a
person has violated either statute, it may initiate enforcement
proceedings by filing an administrative complaint. See 7
C.F.R. §§ 1.131, 1.133(b)(1). The proceeding is assigned to an
agency administrative law judge (ALJ) who makes an initial
decision. Id. § 1.132. Parties can appeal the ALJ’s decision to
the Department’s Judicial Officer, id. § 1.145(a), who exercises
authority delegated by the Secretary and acts as the agency’s
final adjudicator, id. § 2.35(a).
The Department may impose civil penalties if it
determines that a person violated either statute or an
implementing regulation, plus criminal penalties if it finds that

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the person did so “knowingly.” 7 U.S.C. §§ 7734(a)–(b),
8313(a)–(b). When imposing a civil penalty, the Department
determines the amount—up to $500,000 for all non-willful
violations adjudicated in a single proceeding brought under
either Act, see id. §§ 7734(b)(1)(A), 8313(b)(1)(A)(iii)(I)—
based on a combination of mandatory and discretionary factors.
In particular, the Secretary “shall take into account the nature,
circumstance, extent, and gravity of the violation” and “may
consider” the violator’s ability to pay, the effect of a penalty on
the violator’s ability to continue doing business, the violator’s
history of violations, the degree of the violator’s culpability,
and “any other factors the Secretary considers appropriate.” Id.
§§ 7734(b)(2), 8313(b)(2).
B.
Petitioner Amazon Services LLC operates an online store
that sells both Amazon’s own products and third parties’
products. Third parties source their own products and make
their own pricing decisions, but pay a fee to Amazon for the
right to offer their products on Amazon’s store. Amazon, in
turn, processes customer payments and distributes sales
proceeds.
Third-party sellers can fulfill orders—that is, deliver
products to Amazon customers—themselves or can instead pay
an additional fee to use Amazon’s fulfillment service, called
“Fulfillment by Amazon.” A participant in Fulfillment by
Amazon registers for the service and then ships its product to
an Amazon fulfillment center. Amazon stores the product until
it is sold. When a customer purchases a product enrolled in
Fulfillment by Amazon, Amazon selects the product from its
fulfillment center inventory, packages it, and ships it directly
to the customer.

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Amazon requires third-party sellers to enter into a business
agreement through which they assume responsibility for
“comply[ing] with all applicable laws.” Amazon Services
Business Solutions Agreement, J.A. 252, 264. Amazon’s
online portal reiterates to sellers: “It is your responsibility to
comply with all import and export laws and to ensure the
imported goods comply with applicable laws and regulations.
You may not import prohibited or restricted products without
all required permits and authorizations.” Importing and
Exporting Inventory, Amazon Seller Central (Dec. 26, 2016,
12:15 AM), https://sellercentral.amazon.com/gp/help/
G201468520, J.A. 305. The portal then specifies: “For
example, the import of certain agricultural, food products,
alcohol, plants and seeds, fish and wildlife products, or
medication into certain countries may be prohibited or
restricted.” Id., J.A. 306. The portal also instructs sellers to
“[r]egister as an [importer of record] with customs authorities
in the country where you are importing inventory” and explains
that “Amazon, including [its] fulfillment centers, will not serve
as the [importer of record] for any shipment of [fulfillment
service] inventory.” Id., J.A. 306.
C.
In September 2019, the Department’s Animal and Plant
Health Inspection Service began enforcement proceedings
against Amazon for allegedly importing plant and animal
products in violation of the PPA and AHPA. The Service based
its complaint on multiple instances in which U.S. Customs and
Border Protection agents seized packages containing plant and
animal products that had been shipped from abroad by
participants in Fulfillment by Amazon and addressed to
Amazon fulfillment centers in the United States. The facts are
undisputed.

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First, in March 2015, federal agents at a San Francisco
international mail facility seized approximately thirteen
packages of beef, pork, and poultry products from China that
lacked the importation certificates necessary for those products
under the regulations. See 9 C.F.R. §§ 94.4, 94.6, 94.9, 94.12.
The packages had been shipped by Yummy House Hong Kong,
a participant in Amazon’s fulfillment service, and were
addressed to an Amazon fulfillment center in California.
Second, in July 2015, federal agents at a Los Angeles
international mail facility seized three packages containing
poultry products from China that similarly lacked the required
importation certificates. See id. § 94.6. The packages had been
shipped by Deng Dan, another participant in Amazon’s
fulfillment service, and were addressed to another Amazon
fulfillment center in California.
Finally, in March 2016, federal agents at a San Francisco
international mail facility seized three packages containing
kaffir lime leaves from Thailand. As a plant of the subfamily
Aurantioideae, kaffir lime leaves were unlawful to import for
commercial sale under the regulations then in place. See 7
C.F.R. § 319.19(a) (2016). The packages had been shipped by
X-Sampa Co., also a participant in Amazon’s fulfillment
service, and were addressed to an Amazon fulfillment center in
Illinois.
The Service’s complaint alleged that Amazon had
unlawfully imported the products described above in violation
of the PPA and AHPA. Complaint ¶¶ 2.1–2.8, 2.17–2.18, J.A.
13–14, 16. The proceeding was assigned to an ALJ, and the
parties cross-moved for summary judgment.
The ALJ granted the Service’s motion. In re: Amazon
Services LLC, No. 19-J-0146 (U.S.D.A. May 3, 2021), J.A.

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390–439. He concluded that Amazon had unlawfully
“import[ed]” the products by aiding, abetting, causing, or
inducing their unlawful importation. Id. at 24, J.A. 413. The
ALJ rejected Amazon’s contention that it could not be liable
because it was unaware that the third-party sellers had failed to
adhere to the statutes and regulations. Emphasizing that the
Department has “liberally interpreted” the terms “aid,” “abet,”
“cause,” and “induce,” he opined that neither “bad intent” nor
“any mens rea at all” were required to find liability. Id. at 28–
29, J.A. 417–18. And the ALJ reasoned that Amazon had
played an “active” role in the unlawful importations insofar as
it “had an ongoing business relationship with the foreign third-
party sellers it intended to profit or otherwise benefit from,” id.
at 23–24, J.A. 412–13, and “cho[se] to enter into agreements
with foreign sellers to market, sell, and distribute” covered
products “into American homes,” id. at 27, J.A. 416. The ALJ
ordered Amazon to pay a $1 million civil penalty: the statutory
maximums of $500,000 under the PPA and $500,000 under the
AHPA.
Amazon appealed to the Judicial Officer, who affirmed the
ALJ’s decision. In re: Amazon Services LLC, PPA/AHPA
Docket No. 19-J-0146, 2022 WL 722724 (U.S.D.A. Feb. 2,
2022). The Judicial Officer concluded that, contrary to
Amazon’s position, the phrase “aid, abet, cause, or induce” in
the PPA and AHPA requires neither substantial assistance nor
knowing assistance. Id. at *8–14. Based on that interpretation,
the Judicial Officer found that Amazon’s conduct fell within
the scope of the statutes. Id. at *14. Alternatively, the Judicial
Officer explained that he would reach the same result even on
Amazon’s reading of the statute because the record showed that
Amazon “did substantially assist the importation[s]” and “had
knowledge.” Id.

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Amazon filed a timely petition for review in this court. See
28 U.S.C. § 2344. We have jurisdiction under the Hobbs
Administrative Orders Review Act, id. § 2342(2), as
supplemented by the PPA, 7 U.S.C. § 7734(b)(4), and AHPA,
id. § 8313(b)(4)(A).
II.
Under the Administrative Procedure Act (APA), we
review the Department’s order to determine whether it is
“arbitrary, capricious, an abuse of discretion, not in accordance
with law, or unsupported by substantial evidence.” Taylor v.
USDA, 636 F.3d 608, 613 (D.C. Cir. 2011) (citation and
internal quotation marks omitted); see 5 U.S.C. § 706(2)(A),
(E). Amazon argues that the Department’s order is not in
accordance with law because, contrary to the Department’s
interpretation, the statutory phrase “aid, abet, cause, or induce”
applies only if the conduct in question amounts to knowingly
and substantially assisting an unlawful importation. Amazon
next contends that the Department lacked substantial evidence
for its alternative conclusion that, even on Amazon’s reading
of the statutes, Amazon’s conduct constituted knowing and
substantial assistance. We agree with Amazon on both scores.
A.
1.
We first consider what it means to “aid, abet, cause, or
induce” an importation of goods in violation of the PPA and
AHPA. 7 U.S.C. §§ 7702(9)(B), 8302(12)(B). The statutes do
not define the phrase “aid, abet, cause, or induce,” or any of its
individual terms. But as the Supreme Court recently explained
at length in its decision in Twitter, Inc. v. Taamneh, 598 U.S.
471 (2023), those terms carry a well-established legal meaning

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when used—as they are in the PPA and AHPA—to establish
civil liability for aiding and abetting unlawful conduct.
Statutory “terms like ‘aids and abets’ are familiar to the
common law, which has long held aiders-and-abettors
secondarily liable for the wrongful acts of others.” Id. at 484.
“We generally presume that such common-law terms ‘bring the
old soil with them’” when used in statutes. Id. at 484–85
(alterations omitted) (quoting Sekhar v. United States, 570 U.S.
729, 733 (2013)).
What is the content of that “old soil” when it comes to
aiding-and-abetting liability? The Supreme Court in Twitter
identified a “conceptual core that has animated aiding-and-
abetting law for centuries: that the defendant consciously and
culpably ‘participate[d]’ in a wrongful act so as to help ‘make
it succeed.’” Id. at 493 (alteration in original) (quoting Nye &
Nissen v. United States, 336 U.S. 613, 619 (1949)). And while
“[a]iding and abetting is an ancient criminal law doctrine,” id.
at 488 (alteration in original) (quoting Cent. Bank of Denver,
N. A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164,
181 (1994)), the understanding of its scope in the criminal law
“has substantially influenced its analog in tort,” id. As a result,
when the “phrase ‘aids and abets’” is used in a statute imposing
civil liability, it “refers to a conscious, voluntary, and culpable
participation in another’s wrongdoing.” Id. at 493.
The relevant phrase in the PPA and AHPA—“aid, abet,
cause, or induce”—contains the words “cause” and “induce” in
addition to “aid” and “abet.” 7 U.S.C. §§ 7702(9)(B),
8302(12)(B). The inclusion of “cause” and “induce” in that
phrase does not expand the scope of secondary liability beyond
the traditional core of aiding-and-abetting liability. In fact,
“cause” and “induce” are among “[t]he most common” verbs
used to impose aiding-and-abetting liability. See 2 Wayne R.

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LaFave, Substantive Criminal Law § 13.2(a) (3d ed. 2023). It
is true that the words “cause” and “induce,” if construed in
isolation, could range beyond “conscious, voluntary, and
culpable participation in another’s wrongdoing.” Twitter, 598
U.S. at 493. After all, one can causally contribute to
wrongdoing without consciously and culpably participating in
it—think, for instance, of a cab driver who unknowingly gives
a thief a ride to the store he aims to rob. “But we read statutory
terms in context, not in isolation.” Woodhull Freedom Found.
v. United States, 72 F.4th 1286, 1298 (D.C. Cir. 2023). So
when the words “cause” and “induce” appear in a phrase like
“aid, abet, cause, or induce,” we interpret “cause” and “induce”
consistently with their neighbors “aid” and “abet” and with the
“point of aiding and abetting”—“to impose liability on those
who consciously and culpably participated in the tort at issue.”
Twitter, 598 U.S. at 506; see Woodhull, 72 F.4th at 1298–99.
That understanding reflects that “courts have long
recognized the need to cabin aiding-and-abetting liability to
cases of truly culpable conduct.” Twitter, 598 U.S. at 489. If
“aiding-and-abetting liability were taken too far,” the Supreme
Court cautioned in Twitter, “then ordinary merchants could
become liable for any misuse of their goods and services, no
matter how attenuated their relationship with the wrongdoer.”
Id. Or “those who merely deliver mail or transmit emails could
be liable for the tortious messages contained therein.” Id. Or
“mostly passive actors like banks” could “become liable for all
of their customers’ crimes by virtue of carrying out routine
transactions.” Id. at 491. To avoid those kinds of outcomes,
the Supreme Court emphasized, courts have long sought “to
ensure that liability fell only on those who had abetted the
underlying tort through conscious, culpable conduct.” Id. at
492 (internal quotation marks omitted).

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2.
In defending the imposition of liability against Amazon in
this case, the Department construes “aid, abet, cause, or
induce” in the PPA and AHPA in a manner incompatible with
the understanding of aiding-and-abetting liability recognized
by the Supreme Court in Twitter. According to the
Department, the PPA and AHPA allow for imposing aiding-
and-abetting liability on a strict-liability basis, without any
need to show knowledge of the primary violator’s wrongdoing.
But one cannot “consciously and culpably” participate “in
another’s wrongdoing,” id. at 493, if one is not “conscious”
of—does not know of—the wrongdoing in the first place. So
for the Department’s interpretation of aiding-and-abetting
liability to prevail, the Department must show that the PPA and
AHPA are exceptions to the general understanding that the
“phrase ‘aids and abets’ in [a statute] refers to a conscious,
voluntary, and culpable participation in another’s
wrongdoing.” Id. The Department’s effort to do so is
unpersuasive.
a.
The Department chiefly relies on our court’s decision in
Federal Express Corp. v. U.S. Department of Commerce, 39
F.4th 756 (D.C. Cir. 2022). There, we considered an argument
that a “statute’s civil aiding and abetting prohibition plainly
requires a culpable mind.” Id. at 767. The challenge contended
that an agency’s imposition of aiding-and-abetting liability on
a strict-liability basis was ultra vires—i.e., foreclosed by the
statute. We rejected the challenge. See id. at 767–72. The
Department argues that, if an agency’s strict-liability
understanding of civil aiding-and-abetting liability was
permissible in Federal Express, it should be permissible here
as well. We disagree.

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As an initial matter, because the challenge in Federal
Express was an ultra vires claim, we applied an especially
“exacting standard . . . confined to ‘extreme’ agency error.” Id.
at 764. “An ultra vires challenge, in other words,” we
explained, “is essentially a Hail Mary pass.” Id. at 765
(alteration and internal quotation marks omitted). So even if
the agency’s strict-liability interpretation of aiding-and-
abetting liability in Federal Express was not “the type of
blatant error necessary for an ultra vires challenge to succeed,”
id. at 767, there is no need for Amazon to satisfy that kind of
“Hail Mary” standard here. Amazon, that is, need not “show
more than the type of routine error in statutory interpretation”
that suffices under normal APA review. Id. at 765 (internal
quotations marks omitted).
Not only did this court in Federal Express sustain the
agency’s strict-liability understanding under a markedly more
agency-forgiving form of review, but the Federal Express
court also considered the question before the Supreme Court
issued its decision in Twitter. Whereas the Federal Express
court had perceived a measure of uncertainty on whether the
common law of civil aiding-and-abetting liability “requires a
culpable mind,” id. at 767; see id. at 770–71, the Supreme
Court in Twitter later identified a “conceptual core that has
animated aiding-and-abetting liability for centuries: that the
defendant consciously and culpably participated in a wrongful
act.” 598 U.S. at 493 (alteration and internal quotation marks
omitted).
Also, Federal Express must be situated in the statutory
context it evaluated. The statutes involved here—the PPA and
AHPA—do not implicate national security and foreign policy
in the same central way as the 2018 Export Controls Act, the
statute at issue in Federal Express: that law specifically

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restricts exports that contribute to the military potential of
foreign countries. See 39 F.4th at 759–61. This court in
Federal Express concluded that “rotely imposing common-law
principles” was “especially inapt for a statute so deeply tied to
foreign policy and national security.” Id. at 771.
For all those reasons, Federal Express does not stand in
the way of adhering to Twitter’s prescription that the “phrase
‘aids and abets’” as used in the PPA and AHPA “refers to a
conscious, voluntary, and culpable participation in another’s
wrongdoing.” 598 U.S. at 493.
b.
The Department next relies on the statutory structure of the
PPA and AHPA. The Department emphasizes that those
statutes authorize criminal penalties only for a “person that
knowingly” violates their prohibitions, 7 U.S.C.
§§ 7734(a)(1)(A), 8313(a)(1)(A), but allow for civil liability
without the same explicit condition that a violation be knowing,
id. §§ 7734(b)(1), 8313(b)(1). The express “knowingly”
condition for criminal penalties and the absence of any such
express condition for civil penalties, to the Department, means
it can exact civil penalties on a strict-liability basis. That
understanding is fortified, according to the Department, by the
statutes’ grant of discretion to consider (or not) a violator’s
“degree of culpability” in setting the amount of a civil penalty.
Id. §§ 7734(b)(2), 8313(b)(2). That allowance, the Department
believes, reinforces its authority to impose civil penalties
without any level of culpability.
The Department’s structural argument is unavailing. Even
assuming the presence of a “knowingly” condition for criminal
penalties and the absence of that condition for civil penalties
implies that civil penalties can be imposed on a strict-liability

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basis, that understanding may be true for primary violations
without necessarily also being true for secondary—i.e., aiding-
and-abetting—violations. The Department, that is, may be able
to impose civil penalties on primary violators, such as those
who themselves carry goods into the United States, on a strict-
liability basis. Indeed, Amazon concedes as much. But that
does not mean that someone who secondarily assists such a
primary violator can likewise be subject to civil penalties
regardless of a culpable state of mind. Rather, secondary
aiding-and-abetting liability, per the Supreme Court’s decision
in Twitter, requires culpable, conscious participation in
wrongdoing. 598 U.S. at 493. And that remains true even if
the structure of the statute means that some violators—primary
violators—can be subject to civil penalties on a strict-liability
theory.
c.
The Department seeks to distinguish Twitter based on
certain text contained in the statute involved in that case.
Twitter construed the Justice Against Sponsors of Terrorism
Act (JASTA), which imposes civil liability on “any person who
aids and abets, by knowingly providing substantial assistance,”
an act of international terrorism. 18 U.S.C. § 2333(d)(2). And
“Congress provided additional context by pointing to
Halberstam v. Welch, 705 F.2d 472 (CADC 1983), as
‘provid[ing] the proper legal framework’ for ‘civil aiding and
abetting . . . liability.’” Twitter, 598 U.S. at 485 (first alteration
in original) (quoting JASTA, Pub. L. No. 114-222, § 2(a)(5),
130 Stat. 852, 852 (2016)). Our court’s decision in Halberstam
concluded that, for civil aiding-and-abetting liability to attach,
the aider-abettor must have “knowingly and substantially
assist[ed] the principal violation.” 705 F.2d at 477. Congress
in JASTA thus not only pointed specifically to our decision in
Halberstam, but it also included in JASTA’s aiding-and-

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abetting provision the phrase “by knowingly providing
substantial assistance,” the standard set out in Halberstam. 18
U.S.C. § 2333(d)(2).
While the statutes in this case, the PPA and AHPA, do not
contain that additional text, the settled understanding of aiding-
and-abetting liability set forth in Twitter still controls. Twitter
turned centrally on the longstanding meaning of the statutory
phrase “aids and abets,” id. § 2333(d)(2), not on the “additional
context” provided in JASTA by the reference to Halberstam
and the inclusion of text echoing Halberstam’s standard, 598
U.S. at 485. That is why the decision in Twitter emphasized
the “conceptual core that has animated aiding-and-abetting
liability for centuries.” Id. at 493.
Twitter accordingly sets forth a general rule about the use
of the phrase “aids and abets” in a statute, one untethered to the
additional text included in JASTA: “The phrase ‘aids and
abets’ in [JASTA], as elsewhere, refers to a conscious,
voluntary, and culpable participation in another’s
wrongdoing.” Id. (emphasis added). “Elsewhere” includes the
PPA and AHPA, and the words “aid” and “abet” in those
statutes thus carry the same meaning as in JASTA. The upshot
is that a person “aids, abets, causes, or induces” an unlawful
importation under the PPA and AHPA only if she consciously
and culpably participates in the importation.
d.
In its final argument for its strict-liability interpretation of
aiding-and-abetting liability under the PPA and AHPA, the
Department makes an appeal for deference under the Chevron
framework. See Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837 (1984). The Supreme Court,
however, recently overruled Chevron, holding that “courts

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need not and under the APA may not defer to an agency
interpretation of the law simply because a statute is
ambiguous.” Loper Bright Enters. v. Raimondo, 144 S. Ct.
2244, 2273 (2024). That holding governs here and precludes
us from deferring to the Department’s interpretation under the
now-overruled Chevron framework.
B.
Having concluded that, contrary to the Department’s
interpretation, a person aids, abets, causes, or induces an
unlawful importation under the PPA and AHPA only if she
consciously and culpably participates in it, we next consider
whether we can sustain the Department’s order based on its
alternate conclusion that Amazon knowingly and substantially
assisted the unlawful importations at issue here. See In re:
Amazon, 2022 WL 722724, at *14. We cannot. The record
does not contain substantial evidence from which a reasonable
factfinder could conclude that Amazon consciously and
culpably participated in the unlawful importations.
To start, recall the ways in which Amazon assisted
Yummy House, Deng Dan, and X-Sampa, the overseas sellers
who shipped the covered plant and animal products in violation
of the PPA and AHPA. Those sellers participated in Amazon’s
fulfillment service, a routine business service offered to all
third-party sellers. Through that service, Amazon agreed to
store the sellers’ products in its fulfillment centers until the
products were sold and then to package and ship the products
to customers upon a sale. Amazon allegedly knew that Yummy
House, Deng Dan, and X-Sampa would ship plant and animal
products to the fulfillment centers because the sellers registered
those products with the fulfillment service. Amazon also knew
about the regulations restricting the importation of plant and

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animal products, as demonstrated by the information Amazon
provides in its online portal for sellers.
None of those facts support a finding that Amazon
consciously and culpably participated in the sellers’ unlawful
importations. There is no indication that Amazon was aware
of the violations. Indeed, the “only affirmative conduct”
undertaken by Amazon was offering and operating its
fulfillment service. See Twitter, 598 U.S. at 498 (internal
quotation marks omitted). Nothing in the record suggests that
Amazon gave Yummy House, Deng Dan, or X-Sampa “any
special treatment or words of encouragement” or “took any
action at all” with respect to the unlawful acts. Id. The facts
establish only that third-party actors used Amazon’s fulfillment
service to import products in violation of the PPA and AHPA.
The mere operation of a neutral fulfillment service that makes
it easier for third-party sellers to import products into the
United States—and even to do so unlawfully—is not conscious
and culpable involvement in the wrongdoing.
The Supreme Court’s analysis in Twitter is highly
instructive. The defendants there operated social-media
platforms used by a terrorist organization in furtherance of its
perpetration of unlawful acts. The Court allowed “that bad
actors” may be “able to use platforms like defendants’ for
illegal—and sometimes terrible—ends.” Id. at 499. But that
did not justify treating the defendants as aiders and abettors.
After all, “the same could be said of cell phones, email, or the
internet,” yet the Court “generally [did] not think that internet
or cell service providers incur culpability merely for providing
their services to the public” or that “such providers would
normally be described as aiding and abetting, for example,
illegal drug deals brokered over cell phones—even if the
provider’s conference-call or video-call features made the sale
easier.” Id.

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The Court emphasized the error in “focusing . . . primarily
on the value of defendants’ platforms to” the terrorist
organization, “rather than whether defendants culpably
associated themselves with [the organization’s] actions.” Id. at
504. And the Court attached significant “weight to defendants’
arm’s-length relationship with” the organization—“which was
essentially no different from their relationship with
their . . . other users—and their undisputed lack of intent to
support” the wrongdoing. Id. It thus was not enough “that
defendants supplied generally available virtual platforms that
[the organization] made use of, and that defendants failed to
stop [the organization] despite knowing that [it was] using
those platforms.” Id. at 505.
Here, then, it is not enough for the Department to show
that Amazon supplies a generally available fulfillment service
that may be of substantial value to third-party sellers, and that
Amazon knew about the use of the service by Yummy House,
Deng Dan, and X-Sampa, to sell their products to American
consumers. Amazon did not purport to involve itself more
closely with the commercial activity of those sellers than with
that of “other users” of its fulfillment service. Id. at 504. Nor
did the Department provide evidence that Amazon had an
“intent to support” those sellers’ unlawful practices. Id. The
Department’s finding of liability “rests less on affirmative
misconduct and more on an alleged failure” to stop Yummy
House, Deng Dan, and X-Sample from using Amazon’s
infrastructure in importing products unlawfully. Id. at 499–
500. Such “passive nonfeasance” does not amount to
conscious and culpable participation in the circumstances. Id.
at 500.
The “fundamental question of aiding-and-abetting
liability,” the Supreme Court summarized, is: “Did defendants

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consciously, voluntarily, and culpably participate in or support
the relevant wrongdoing?” The answer in Twitter was no. The
answer here is the same.
* * * * *
For the foregoing reasons, we grant the petition for review,
vacate the Department’s order, and remand to the agency for
further proceedings consistent with this opinion.
So ordered.

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