Al Shimari v. Caci International, Inc.

413 grated AND into wartime combatant activities IN PART VACAT- AFFIRMED military broadly over which the retains IN PART ED authority, arising command tort claims out engagement of the contractors’ such NIEMEYER, concurring: Judge, Circuit Shimari, preempted.” activities are Al Judge the reasons stated both For 658 F.3d at 420. “Combatant activities” in Al my opinion and in King’s opinion necessary include “activities both to and in International, Inc., 658 v. Shimari CACI hostilities,” actual direct connection with (4th Cir.2011), politi- I believe F.3d 413 States, Johnson v. United requires dismissal of cal doctrine (9th Cir.1948), a standard satisfied pre- that federal case. I also believe this here. by Judge Shedd’s as articulated emption, Shimari, our decision Al opinion a re- dismissal of this case. As

supports sult, Judge King’s opinion I concur both respect to Judge opinion Shedd’s alterna- preemption, providing thus judgment. for the grounds tive Najim SHIMARI; Abdullah AL Suhail SHEDD, concurring in Judge, Circuit Rashid; Arraq Taha Yaseen Sa’ad judgment: Al-Zuba’e; Hamza Hantoosh Salah Al-Ejaili, Hasan Nusaif Jasim Plain Because, early stage, I do not at this tiffs-Appellees, case will deciding Taylor’s Peter believe “inevitably be drawn cause the Court deci into reconsideration INTERNATIONAL, INCORPO CACI sions,” Corp., 529 Lane v. Halliburton RATED; Technology, CACI Premier (5th Cir.2008), I am not F.3d Incorporated, Defendants-Appellants. question doc political convinced that the in this ease. See also McMa applies trine Services, Kellogg Brown & Root Inc., Airways, hon v. Presidential Incorporated, Sup Amicus (11th Cir.2007) (same). I F.3d porting Appellants. however, judgment, in the because concur No. 09-1335. correctly court agree district Taylor’s negligence claim. dismissed Appeals, United States Court Fourth Circuit. v. Titan For the reasons stated Saleh (D.C.Cir.2009), in Al F.3d 1 Corp., 580 Argued: Oct. 2010. International, F.3d v. CACI Shimari Sept. Decided: (4th Cir.2011) Al-Quraishi v. L-3 (4th Services, Inc., 657 F.3d 201 Cir.

2011) found the district also as — and is, Taylor’s claim dis- court—I believe uniquely federal interests

placed Tort by the Federal represented this case excep- activities Act’s combatant Claims tion, 2680(j). ap- § Under 28 U.S.C. inte- a civilian contractor is

proach, “where Jr., Joseph Koegel,

ARGUED: William Johnson, LLP, Steptoe Washington, & D.C., Burke, Appellants. for Susan L. PLLC, D.C., Washington, Ap- Burke for O’Connor, pellees. ON BRIEF: John F. Johnson, LLP, Steptoe Washington, & D.C., Appellants. Sajadi, Susan M. Hawkins, PLLC, R. Katherine Burke D.C., Washington, Ray- for Appellees. Ebner, Biagini, mond B. Lawrence S. Rob- Matthews, Russell, Jr., ert A. Daniel L. LLP, Long Aldridge McKenna & Wash- D.C., ington, Ap- for Amicus Supporting pellants. NIEMEYER, KING,

Before SHEDD, Judges. Circuit Reversed and remanded with by published opinion. Judge instructions opinion, NIEMEYER wrote Judge joined. Judge SHEDD separate opinion NIEMEYER wrote a giving additional for reversing reasons remanding. Judge KING wrote a dissenting opinion.

OPINION

NIEMEYER, Judge: Circuit citizens, Iraqi

Four who were seized Iraq the U.S. war zone and detained in Abu Ghraib prison, Baghdad, near commenced this tort contractor, against a civilian action re- tained to assist it at the prison conducting interrogations for the purpose obtaining intelligence. plaintiffs allege that while were de- tained, the contractor’s and mil- itary personnel conspired among them- Indeed, action. to torture and claims asserted and with others selves data, published to various according that conduct. sub- up and to cover abuse them stantial number of deaths and casualties of filed a motion to dismiss The contractor Iraqi both civilians and members of the including politi- grounds, numerous on up continued even to the time U.S. doctrine; pre-emption cal argument, at a reduced although of oral Technologies Corp., Boyle v. United See, peak level from the 2006 and 2007. 2510, 500, L.Ed.2d Fischer, e.g., Cong. Hannah Research (1988), Corp., v. Titan and Saleh (Oct. Serv., R40824, 7, Iraq Casualties (D.C.Cir.2009); and derivative sov- F.3d 1 2010), at www.fpc.state.gov/ available court de- ereign immunity. The district documents/organization/150201.pdf; U.S. motion, concluding nied the contractor’s www.globalsecurity. in Iraq, Casualties justiciable claims are “[plaintiffs’ (last .htm org/military/ops/ir aq_casualties private civil tort claims because 2011). visited Jan. damages do not interfere with actors for war, that defen- separation powers”; During the course of the the U.S. devel- Iraqi claim of must be and detained dant’s seized citizens now through discovery, suspected being enemy and dismissal oped combatants or plaintiffs’ premature; thought possessing and to have value in useful preempted by the combat- intelligence. claims “are not of these detainees Some stage at this be- exception imprisoned prison, ant activities were at Abu Ghraib discovery required Baghdad. Although prison cause to determine near was constitute interrogations operated here in the war zone whether United meaning Army, shortage” activities’ within the “a of mili- ‘combatant States severe tary Al Shimari v. CACI exception.” intelligence personnel “prompt[ed] Inc., F.Supp.2d Technology, pri- Premier the U.S. to contract with (E.D.Va.2009). corporations provide vate civilian inter- rogators interpreters.” and J.A. 408. reverse appeal, the contractor’s we On These contractors included CACI Premier to dismiss and remand with instructions Inc., Technology, subsidiary of CACI plaintiffs’ conclude that the this case. We International, herein, (collectively Inc. by federal preempted state law claims are “CACI”). required The contractors were it, displaced by and as articulated law comply Department with of Defense Corp., v. Titan 8-12 Saleh interrogation policies procedures when (D.C.Cir.2009).

conducting “[ijntelligence interrogations, debriefings, question- detainee and tactical ing” persons custody in the of the U.S. unprovoked attacks response to military. 270-71. J.A. September on the United States on 3,000 Summary In the Executive of the Sen- during people which some were force, killed, Inquiry led ate Armed Services Committee a multi-national Britain, invaded into the Treatment of Detainees United States and Great Custody, the Committee detailed the histo- Iraq depose in March 2003 Saddam ry practices applied of the standards and Iraq weapons and rid of mass Hussein Bay, quickly interrogations Hussein was Guantanamo destruction. While Iraq, Afghanistan. J.A. 360-65. deposed weapons and no of mass destruc- found, Summary that the Presi- Iraq continued Executive noted tion were the war 7, 2002, signed February an order on period relevant to the dent least for Iraq the wars in in the context of Third Geneva Convention stating al-Qaeda especially significant conflict with was an Afghanistan, apply did not . so, and that detainees were the Taliban war. Even the Senate Armed tool of afforded protections not entitled to ap- concluded that the Services Committee by the Third Geneva Con- of war prisoners aggressive techniques proval and use that, as “a But the order stated vention. a direct cause of detainee abuse inas- States Armed policy, United matter of they conveyed message that it much as treat detainees continue to Forces shall degrade acceptable to mistreat and, appropriate to the extent humanely custody. detainees U.S. military necessity, in and consistent plain- some of the abuses While principles the consistent with a manner allegations in of their tiffs detailed the (em- J.A. 354

the Geneva Conventions.” complaint appear approved to have been added). Later, in December phasis another, by military point the at one employ from the field to following requests clearly others were not. interrogation techniques to ob- aggressive intelligence, Secretary the of Defense tain Iraqi The four citizens who commenced interroga- approved techniques a list of Najim A1 this action—Suhail Abdullah Shi- tion, positions, removal of such as stress mari, Rashid, Arraq Taha Yaseen Sa’ad (such as fear of clothing, phobias use of Al-Zuba’e, Hamza Hantoosh and Salah light and audito- dogs), deprivation and Al-Ejaili Hasan Nusaif Jasim de- —were the ry approval stimuli. J.A. 360. While by the in Abu tained U.S. Ghraib interrogations being con- was directed during periods between prison various Bay, it at Guantanamo was also ducted They alleged during 2003 and 2008. that military personnel Iraq circulated to detention, they interrogated their were 363. But even as Afghanistan. and J.A. dangerous posi- unauthorized and stress techniques being were em- aggressive tions; subjected that were to sexual interrogation conducted in those ployed for assault, repeated beatings, deprivations of theatres, Secretary the rescinded his mem- food, sleep, witnessing water and forced specific the tech- approving orandum rape prisoner, impris- the of another and unclear, however, It niques. J.A. 363. was sensory depri- onment under conditions of techniques what thereafter remained au- vation; and that the facts of abuse were by Secretary. the J.A. 363-64. thorized up. They allege covered the abuse mili- During following year, high-level the cover-up were carried out CACI tary personnel interrogators directed that conspiracy with U.S. in Iraq aggressive telling be more field — personnel. personnel gloves coming that “the off’ and “we want these detainees broken.” granted After the court district CACI’s J.A. 365. stay discovery, motion to filed a CACI 12(b)(1) 12(b)(6) motion under Rules ongoing the record reflects an

While dismiss, grounds, on in- based numerous torture, policy engage the defini- doctrine, political question cluding the fed- subject tion of torture was the of continu- preemption, sovereign eral and derivative ing debate in the Executive Branch and immunity. The district court denied the military. the See J.A. 356-60. Nonethe- motion, less, interlocutory filed this CACI believed it to be the rul- intelligence appeal, challenging national district court’s pursue interest immunity and on the through aggressive interrogation ings tech- on defenses niques, intelligence, especially involving political question inasmuch doctrine Department preemption. See Nixon Defense and that and federal uniquely implicated federal interests Fitzgerald, (1982) procurement that a rul- from civilian (recognizing contrac- L.Ed.2d 349 law, immunity- preempted Virginia President’s absolute tors ing on the powers Supreme agreed. Court separation based Al-Qur determined that the contractor immediately appealable); see also should (4th Servs., Inc., not be for implementing v. L-3 held liable aishi Cir.2011) raising government’s design an (holding appeal entertain- ing pilot’s'tort immedi- presented the same here is case would undermine issues ately appealable). unique pro- federal interests in the equipment

curement of for the national II If per- defense. state tort mitted, the federal interests would be Considering CACI’s adversely affected “either because conclude, on challenge, we based contractor decline to [would] manufacture federal interests involved uniquely Government, design specified by case, plaintiffs’ tort claims are or it price.” raise its Id. at [would] the rea preempted displaced and under 108 S.Ct. 2510. Boyle in Tech soning articulated United nologies Corp., Boyle protecting 108 S.Ct. Court held that (1988), applied uniquely to these federal 101 L.Ed.2d interests conflicted virtually identical to those with the purposes operation circumstances of state Corp., v. Titan 580 F.3d tort law and therefore the state before us Saleh law was — denied, (D.C.Cir.2009), preempted. cert. It looked to the discretionary —, exception 180 L.Ed.2d 886 function of the 131 S.Ct. Federal Tort (2011). Saleh, In the held Act to D.C. Circuit Claims demonstrate that the federal integrat- government flexibility that where a civilian contractor is must have the appropriate design into combat activities over which the select the for military ed authority, equipment a tort and that allowing retains command state tort lia- arising bility design, claim out of the contractor’s en- for defective where the gagement preempted. government participated in such activities is had in that de- Saleh, sign, significantly In its hold- would conflict reaching 580 F.3d at 9. with the of ing, applied policy by the court the rationale embodied and defined the Boyle practically discretionary to circumstances identical Federal Tort Claims Act’s 511-12, exception. to those before us. function Id. at Thus, Boyle recognized gov- S.Ct. 2510. Boyle, pilot’s In a marine estate filed ernment contractor defense Virginia tort law Unit- suit it applied so that contractors would be a civilian Technologies Corporation, ed protected from state law where Defense, Department contractor of the of protection necessary such was to safe- alleging negligent design of heli- guard uniquely federal interests. copter. Boyle, 487 U.S. at helicopter Boyle’s preemption holding crashed into While thus 2510. When water, open displace protect unable to functions to state law to pilot was interests,” hatch, opened “uniquely rely outward federal it did not escape inward, Congress act of to animate the causing pilot rather than on Rather, preemption. Boyle preemp- contend- Technologies drown. Id. United tion, which no federal law address- design specified ed that the door’s was leaves acted inde- wrong) in effect like assertions that CACI claim, more operates ing the military, from the pendently, apart is extended to sovereign Post, “contrary military directives.” at contractors’ government civilian protect 436; (noting at that “no post, see also sovereign. of the functioning on behalf torture encompasses federal interest Thus, preemption, rath- shape Boyle of at plaintiffs allege”); post, and abuses presence of being defined er than (“Ultimately, government rath- 431-32 law, priority of is defined federal charge er than the contractor must be interests over countervail- uniquely federal decisionmaking in order for the contrac- in state as manifested ing state interests liability”); post, tor to be shielded law. (“the government’s precise control 431-32 Saleh, Boyle we the courts As did contractor, integral which is so over its im- implicates that this case too conclude absent”); post, at 432 Boyle's, reasoning, is interests. uniquely federal portant authority al- (noting government liability under state law of potential leged only conduct can determined taken in military contractors for actions contract with the mili- looking CACI’s military operations with U.S. connection (“there tary); post, at is no evidence to similarly affect the avail- overseas majority’s support supposition ‘inte- ability using and costs of contract workers glean- ... than can be gration’ other what conjunction military operations. allegations ed from bare Com- case, uniquely interest plaint”); post, (arguing at 433 that absence especially important view of the application precludes role recognized shortage personnel Boyle). position But the dissent’s in interrogat- and the need for assistance allegations complaint, belied prison. at Abu Not ing detainees Ghraib that all the misconduct which assert liability against only potential tort product a charged conspiracy was the of military contractors affect costs and such military per- personnel between CACI and availability, it efficiencies and contractors’ ¶ See, 1 e.g., Complaint sonnel. Amended present possibility that mili- would also (alleging a between em- conspiracy CACI hauled into ci- tary commanders could be ployees military personnel, who are purpose evaluating vilian courts for the of in serving military prison” “now time for differentiating military and between ¶ participation); (alleging their 70 That effort could contractor decisions. be- employees repeatedly conspired “CACI if contractor come extensive military personnel give with Plaintiffs and the worked side side in the which was for ‘special treatment’ code questioning detainees under con- in type torture of the endured Plaintiffs trol, in complaint alleges as the this case. ¶ site”); (alleging hard “CACI Moreover, uniquely with such interference mili- employees repeatedly conspired with aggravated by federal interests would be tary personnel to harm Plaintiffs in vari- prison’s location in the war zone. Fi- ous and methods referred to manners nally, potential liability under state tort ¶ above”); em- (alleging CACI flexibility that law would undermine the ployees “agreed each other and oth- military necessity requires determining ers to in a series of unlawful participate gathering intelligence. for methods ¶ acts”); (alleging employ- that CACI dissenting opinion position takes the ees “aided and abetted others who were ¶ Plaintiffs”); enjoy any immunity torturing (alleging that CACI should not (and repeated “knowing participation from based on its that CACI’s grave uncertainty poten- and foreseeable doubts and inherent in conspiracy caused Plaintiffs”). Saleh, subjection tial In view of these to civil suit.” damages which, complaint, agree at this F.3d at 7. And we with the allegations of the D.C. true, only we can Circuit’s conclusion that this interest is stage, accept we implicated even when the suit brought of our decision that is purposes assume indirectly against a civilian contractor— integrated into the employees were CACI — directly than rather the United prison in military activities at Abu Ghraib States itself. The acuteness of a need to over which the retained Baghdad, preempt tort state law the context of authority. command battlefield activities is well articulated im- specific In addition to the adverse Saleh: uniquely federal interests of pacts The nature of the conflict in this case is interrogating foreign detainees in battle- Boyle— somewhat different from that in fields, signifi- a more perhaps broader sharp of example discrete conflict in with federal interests would cant conflict satisfying both state and federal allowing generally from tort law arise (i.e., by designing helicopter duties tradi- apply foreign “[T]he battlefields. opens hatch that both inward and out- tional rationales for tort law—deterrence ward) impossible. the context of behavior, of risk-taking compensation exception, the combatant activities victims, punishment of tortfeasors— relevant question is not so much wheth- singularly place out of combat situa- duty er the substance of the federal Saleh, (emphasis 580 F.3d at 7 tions.” inconsistent with a hypothetical duty im- omitted). In Boyle, Supreme Court posed by foreign the state or sovereign. to the Federal Tort Claims Act looked Rather, imposition it is the per se purpose determining exceptions for foreign state or tort law that conflicts conflict between significant whether policy eliminating with the FTCA’s state tort law and federal interests existed. concepts battlefield. Tort Although the relevant Federal Claims very purposes tort law are in conflict provision Boyle Act was the discretion- Thus, pursuit with the of warfare. ary employ exception, function when we presents instant case us with a more to determine the na- approach same general preemption, conflict to coin a here, extent of conflict ture and term, preemption”: “battle-field the fed- the combatant activi- provision relevant government occupies eral the field when exception. 2680(j). § ties See U.S.C. warfare, it comes to and its interest exception This retains the United States’ always “precisely contrary” combat is sovereign immunity “arising for claims out imposition duty. of a non-federal tort of the combatant activities of the Saleh, added) (emphasis 580 F.3d at 7 Guard, forces, during or naval or the Coast (citing Boyle, 487 U.S. at 108 S.Ct. time of war.” Id. As the Circuit D.C. 2510).1 Saleh, Congress observed intended uniquely ... tort from the federal interest in conduct- exception “eliminat[e] battlefield, war, ing controlling for- conduct of preempt both to state or eign regulation including intelligence-gathering of federal wartime conduct activities simply from the within thus is in- prisons, and to free commanders split. Refusing accept only and would have us create a circuit 1. Saleh as the other case Post, 430, 431, 5, 434, squarely point, the dissent chooses to 432-33 n. 434-35 & case on 8, 435, heavily dissenting opinion n. & n. rely in that 435-36 10. itself, the conduct any judgment on about liability in that state tort with compatible that the claims of these requiring we are context. alleging abuse Iraqi four detainees allegations case involves This Iraq be dismissed military prison with the essen in connection misconduct district court. in a interrogation military task of tially Therefore, we reverse the district by contractors military prison zone war denying court’s order CACI’s motion mil with the in close collaboration working and remand with instructions to dismiss under these circum itary. We hold dismiss. contractor is inte stances, a civilian where combatant activities into wartime grated AND REMANDED REVERSED military broadly retains over which WITH INSTRUCTIONS arising claims out authority, tort command in such engagement

of the contractors’ NIEMEYER, Judge, writing Circuit Saleh, See preempted. activities and remand to separately to reverse F.3d dismiss: pre that in addition to I would conclude

Ill un political question doctrine emption, Carr, with moral rightly nation reacted v. der Baker pictures (1962), circulated indignation and derivative 7 L.Ed.2d 663 if these four prison. And Mangold Abu Ghraib v. Ana absolute (4th fact in a similar Services, Inc., citizens did in suffer Iraqi 77 F.3d 1442 lytic Cir. of 1996), from the unauthorized conduct manner of this case. require dismissal guards interroga- military and civilian Judge King apparently would note tors, nation, including judges, application political ques agree similarly. Nothing say we this react were he to have addressed tion doctrine torture, to condone the opinion is intended Taylor Kellogg, the issue. See abuse, cover-up alleged (4th Cir.2011) J.). But, in the com- (King, in his plaint. opinion, he has chosen to ad- dissenting only and not the dress course, nothing say we should be Of political question doctrine. Nor has he judgment on the passing taken as sub- immunity, absolute addressed derivative allegations. pur- For our stance of these though even all three issues were raised poses, allegations remain we appeal. CACI on true, only pur- accepted have but poses deciding appeal. that conduct carried out

What we hold is issue, question CACI political and the effects of that conduct On the during war are, nonjus- claims are part, properly plaintiffs’ contends for the most employ- the conduct of its subject judicial evaluation. The Com- ticiable because of based, ees, claims are on which the mander Chief and military effort in a regulations, part of the undertaken adopted policies, him have and resolution of those claims manuals and have issued orders and di- war zone conduct, inextricably be tied to an evaluation they for rectives powers, of war committed procedures of the exercise have established facilities Articles I and II of the Constitution addressing violations and disobedience. under for alone, branches. See Bak- political and not to coordinate ground On this structural er, 208-17, up at 691. More make the political question 82 S.Ct. doctrine.” argues observed, that the interro- specifically, example, CACI Id. It for that earlier techniques, which lie at the core of gation foreign presented political relations cases claims, com- plaintiffs’ inseparable were an questions where turned on “standards war, “many if not most ponent of and that judicial defy application,” thus de- alleged forms of abuse here were manding “single-voiced statement” of at interrogation techniques approved government’s views. Id. In another Branch.” highest levels of the Executive observed, example, it in connection with it relevant whether CACI adds that is not powers, the war that “isolable reasons for techniques appro- in fact the “chosen presence political questions” of arise political ques- priate precisely is determining —that “when or whether war has may tion that the courts not ask or an- ended,” 213, id. 82 S.Ct. and it swer,” States, citing Lin v. United 561 pointed power out that the war “includes (D.C.Cir.2009). F.3d power remedy the evils which have of arisen from its rise plaintiffs argue progress resolution and con- textually by during their claims is not committed tinues that emergency,” id. (internal political to coordinate Constitution 82 S.Ct. 691 quotation marks but, omitted). branches because their claims are Distilling the core nature po- of claims, plain- Branch. The the Judicial questions, litical explained that a tiffs note that their “tort claims do not “lack judicially discoverable standards by even arise out of actions a coordinate and the drive for application” even-handed Rather, political branch.” the tort claims requires referring questions such CACI, not, by arise from conduct which is political departments. Id. at like, gov- nor is it a coordinate branch of 691. The Court summarized the circum- They argue ernment. also that the torture present stances that a political question: allegedly committed CACI apparent It is that several formulations military. was never authorized vary slightly according to the set- doctrine, at political question tings questions may which the arise core, nonjusticiable recognizes any as a political question, although describe whose resolution is committed each has one or more elements which a coordinate branch of identify it essentially a function of require whose evaluation a court would the separation powers. Prominent application judicially of standards un- on the surface of case held to in- judicially unmanageable. diseoverable political question volve a is found a tex- summarized, As the Baker Court “The tually demonstrable constitutional com- nonjusticiability political question mitment of the to a issue coordinate primarily separation function of political department; judi- or a lack of powers.” 369 U.S. at 82 S.Ct. 691. cially and manageable discoverable so, the “delicate exercise” of deter- Even it; resolving for impos- standards or the questions polit- mining whether are indeed sibility deciding pol- without an initial responsibility ical remains the of the Judi- icy clearly determination of a kind interpreter of cial Branch as the “ultimate discretion; nonjudicial impossibil- or the the Constitution.” Id. at 82 S.Ct. 691. ity undertaking independent of a court’s Baker, analyzed prior rep- expressing

In resolution without lack of the Court respect of the “to infer due coordinate branches of resentative decisions an analytical government; from them the threads unusual need for un- in subordinates mander in Chief and his political de- adherence questioning made; the chain of command. potentiality already or the cision multifarious of embarrassment disputed power It is not depart- by various pronouncements objectives conduct war and determine question. ments on one by the explicitly means is committed Congress and the Presi- is inex- Constitution formulations one of these Unless Const, I, 8,§ bar, art. cl. 11-14 dent. See U.S. there from the case tricable war, to (authorizing Congress to declare non-justicia- no dismissal should be navy, and to ques- raise armies and create political of a bility ground II, military); for the id. art. make rules presence. tion’s § that the President “shall be (providing Baker, 369 U.S. Army Commander Chief short, of one presence the substantial States, and of the Navy of the United indi- formulations would of the articulated States, of the several when called Militia political question. cate a into the actual Service of the United Pow- formulations led Justice The Baker States”). Presi- assignment This ques- inquiry into three ell to distill As was deliberate and considered. dent tions: explain, “Of all the papers the Federalist di- (i) government, or concerns of involve resolution of cares Does the issue most demands peculiarly the text of the rection of war committed questions the exer- qualities distinguish of those to a coordinate branch Constitution single hand. The di- power cise government? implies the direction of the rection war (ii) de- question resolution of the Would power and the of di- strength; common beyond that a court move areas mand employing the common recting judicial expertise? part a usual and essential strength, forms (iii) coun- prudential Do considerations of the executive authori- definition judicial sel intervention? (Alex- 7k, at 383 ty.” Federalist No. Carter, 996, 998, 1788) Goldwater v. Hamilton, (George March ander (1979) (Powell, 1990). 62 L.Ed.2d 428 eds., S.Ct. Carey & James' McClellan W. J., concurring judgment). in the plaintiffs’ We must thus ask whether claims, war, arising in context of a question, begin by the first

To answer challenge powers the exercise of war so that the claims made this case noting Iraq. political committed to coordinate branches. in the context of the war arose zone, certainly if their foreigners it would be so seizing, And the war While military ac- challenges directed to suspected activity possess- of hostile or of at a personnel, when directed ing intelligence interrogat- useful and then tions military personnel and integral parts conspiracy them in the field were of U.S. ing Indeed, engaged civilian contractors effort. the function of the war functions, the issue is interrogating to obtain intel- to conduct detaining and more Making more nuanced. ligence undoubtedly critical to the suc- members complex allegation is the military strategies campaigns. cess of circumstances, alleged to have dis- judgment conspiracy In such of of limits interrogate, inquire obeyed orders and violated estab- whom to what chain of about, by persons higher techniques and the to use falls com- lished military command. fortably powers within the of the Com- brought against military a case the out military operations In under the ultimate contractor, than a the directly, supervision rather alle- and command of the military disobeyed gation zone, that a soldier orders in a war evaluation of their conduct justiciable surely would not make the claim political raises the same question that Thus, nonjusticiable. if it was if otherwise by would be raised a direct challenge to interrogation designed to uncover was the military. the enemy names of personnel location and CACI’s function here (interrogating per- plans, military and their the fact that a by sons seized military for interroga- interrogator applied techniques ag- more tion) ultimately military function gressive approved by than those his com- the control of military, aggressive mander for interrogation would therefore the plain- decision to dismiss the activity military not remove the from the tiffs by claims is not affected the fact that effort, any more than would a soldier’s CACI was civilian contractor. The U.S. shooting enemy an soldier even after he military picked up had the detainees in the had been seized and disarmed. Such con- war zone and believed that they should be duct, disobedient, albeit is undertaken interrogated. The detainees remained in grossly in the course of prosecuting war custody military in- throughout advancing the strategy military terrogations, military and the both operat- adopted by upper level commanders for guarded ed and the prison. Because of carrying out the war. Just as the Presi- personnel however, shortages, the interro- designees given dent and his are the au- gation activities were carried out not only thority to conduct the interrogate war and by military personnel but by also civilian prisoners judicial battlefield free from employees engaged perform the same oversight, they given authority They function. were instructed on ap- impose address disobedience and disci- proved interrogation techniques and or- pline. dered not to violate the limitations. sure, analysis, applied To be when addition, intelligence being sought engaged by to conduct civilian contrac- through interrogation by was defined tors, becomes more attenuated because ci- military’s goals such the substance of vilian enjoy every pro- contractors do not questions posed to detainees was of military tection from suit that might Moreover, origin. the ac- enjoy. dissenting colleague As our recog- complained alleged tions of are to have opinion nizes in another today dismissing been jointly by committed employ- CACI claim a military contractor based military personnel, ees and and all activi- political question doctrine, “we are alleged ties are to have fallen within the obliged carefully relationship assess the scope of a conspiracy that included CACI contractor], between the and [the military personnel. beyond and to complaint, ‘look [and] Accordingly, response to the first plaintiff] might how prove ] [the considerf considering political ques- [his] claim[] and how [defendant] ” tion doctrine —whether Taylor Kellogg, defend.’ resolution of the 658 F.3d (4th Cir.2011) questions in this case is (quoting Lane v. committed Halli- burton, (5th Cir.2008) text Constitution to a coordinate (some When, branch of original)). alterations conclude that the —I here, undoubtedly yes, this assessment demonstrates that answer is even though the civilian working allegations may contractors were imperfect side involve side personnel carry disobedient conduct contractors. States, the President consid- question the second the United answer to ered, approved, an order and-requires perhaps a determi- and even complicated

more civilian car- plain- airplane the to shoot down a U.S. resolution of natidn of -whether citizens, aggressive rying interro- innocent American deter- challenging claims tiffs’ greater that was mining the courts the order in the would take gation techniques case, In that the Presi- judicial expertise public interest. their beyond into areas airplane had information that was Taylor, 658 F.3d dent competence. See or (“[W]e Capitol House must, appeal, headed for the White or the to resolve this Washington, type question de- That of to which national D.C. gauge degree hardly a or re- may implicated be could have been addressed interests fense claim]”). court, by a have had viewed which would judicial [the of assessment apply. few if standards to conducting component As a central of Branch, President, That of war, say the Executive is not to the evaluation the same aggres- interrogations battlefield calls for military and the determined mili- of interrogation techniques intensity response response a as were does sive Iraq necessity enemy-captured airplane as to an civilian en tary inasmuch the war Nonetheless, enemy spread capital. an out route to the nation’s involved was interrogation military a use in among factions and cells within tool for numerous engage or- effort. To population, distinguishing prosecuting without the war uniforms, operation. techniques court in the of which ganization, question bases of Thus, morally policy, militarily necessary yet of President but as matter were acceptable military it with necessi- and consistent with American found inconsistent enemy President ty policy, to afford combatants least as defined seized require to Congress, of the Third Geneva Conven- a court protections” to carrying very powers tion. And out that determina- exercise committed tion, Secretary high- necessity of military the- Defense those branches. zone, aggres- including officers directed that actions the war battle- level detainees, interrogations interrogation employed. be There field cannot be sive sure, was, Execu- without it to explored requiring to a debate within the a court morally ap- judi- Branch what about judgments tive about evaluate techniques ciary expertise competence. could be lacks For propriate what to justified by military necessity. military policy But these a court evaluate interrogation to questions by applying aggressive, were not addressed had be more off,” cognizable; gloves coming that “the and that judicially standards that were broken,” judgments were difficult that involved “these must be it would detainees public to for the weighing policy, a delicate have evaluate the entire basis morality, public decency, military sense or be a loss as public decisions at. treaties, war, begin. questions go where to Such to the the customs of international military necessity. hardly question One could heart doctrine. political judi- find a more unsuited for the question, noted above On ciary. disobey respect military personnel who Indeed, war, orders, may any given the President fact that CACI disobeyed remove might impose specif- choose no limits on have orders does not function example, ic ordered. For their activities from the actions A change analysis. re- we know that in connection with the and would not evaluate the disobedient sponse attempt attacks launched court’s 9/11 reasons, inap- I would defer to the of CACI would For these activities manage for to military political branches how best the court into enmesh propriately interrogate to military prisons, detainees decisions, and activities strategies, military intelligence, punish for and to they as if were undertaken same extent prison disobey those within the who mili- politi- by military personnel. entirely tary See Carmichael Kel- directives. v. recognizes doctrine cal Servs., Inc., logg, & Root 572 F.3d Brown matters to Con- assigns such Constitution Cir.2009). (11th Chief, and the Commander gress, the generally. Tiffany Branch v. Executive See II (4th States, 271, 277 Cir. 931 F.2d United 1991) (“Of en- legion governmental the is would also conclude this suit deavors, marked perhaps clearly the most doctrine of derívate barred absolute immunity, as articulated in v. provisions Mangold deference are for judicial for Services, (4th Inc., 77 Analytic F.3d 1442 security and defense.... national Cir.1996). Murray Northrop also See employed and tactics on bat- strategy Tech., Inc., Grumman 444 F.3d judicial clearly subject to tlefield are Info. Cir.2006) (2d (government contractor review”). absolutely immune from tort for addressing Justice Powell’s Finally, performing governmental contracted-for I conclude that it would be question, third function, citing 1447); Mangold, 77 F.3d at attempt for civilian to imprudent courts to Shield, Pani v. Blue Empire Cross/Blue military acts under common law adjudge (2d Cir.1998) (same); 71-73 F.3d To entertain the plaintiffs’ tort principles. Assocs., Psychiatric Midland Inc. v. Unit intro- principles under those claims States, (8th ed 145 F.3d Cir. time, duce, in a principles the first 1998) (common immunity law official battle, yet array a raising field of broader insurer). barred tort suit Medicare judiciary into the of interferences immunity protects Derivative absolute con- Congress, functions committed to tractors suit where such President, and the Branch. necessary protect discretionary gov- Executive a to deciding raises a ernment function and the im- whether this claim benefits of When “first, munity outweigh its costs. political question, we must assess to contractor] the extent which [the Mangold, government In we held that a second, control, military’s under the absolutely contractor was immune from national defense interests were whether state tort suit for defamation on based military’s with the deci- closely intertwined the contractor statements that made con- contractor’s] governing [the sions official response government to an investi- Here, Taylor, duct.” gation dealings govern- about with the engaged by pur- to CACI was There, Air ment. Force had conduct- interrogations sue under the command investigation ed an into the of an activities decisions military personnel, control Air who allegedly Force colonel exerted scope and of these inter- about the nature pressure his influence even than decisions rogations, more so family hire a Man- contractor to friend. have back-up power should about “whether gold, response 1444-45. F.3d area, Force, id. at particular Air con- supplied” questions posed been intricately with na- Air provided intertwined tractor information to the in- confirming that the colonel interests. Force did tional defense without performed to hire the ensure contractor press deed fraud, waste, mismanagement. lack of creden- Mend, Mend’s despite the Following added). Id. position. tials for (emphasis at 1447-48 Id. Force, the Air response contractor’s military made the Mangold, As for defamation contractor colonel sued interrogate to discretionary determination concluded that law. Id. We Virginia the assistance of required and detainees action of discretionary governmental perform the interro- civilian contractors to protect- fraud was suspected investigating Here, extending Mangold, in gations. as that the im- immunity necessary and immunity contractors is ed absolute discretionary underlying persons private munity protect “to to extended case, activity, per- in this governmental contractors government who are sector forming interrogations. wartime investigations in official participating that “to the extent contracts” government im- Nonetheless, absolute for derivative by granting obtained public benefits must out- munity apply, its benefits to costs.” Id. outweigh[ed] its immunity immunity weigh its costs. The costs to immunity be extended could injured par- 1447. Such denying from obviously arise “immuni- contractor because private to courts to assert otherwise ties access by the nature of the is that it defined Its benefit ty legitimate claims. [was] func- impair- litigation the office vexatious being prevents performed tion government. functioning efficient employee ing the particular of the position or the gov- we concluded Mangold, Thus, involved.” Id. receiving interest in strong had a ernment par immunity protected] absolute [i]f during investigations contractor assistance function, no matter government ticular that improprieties, and such contracting times or to what level many how if forthcoming less would be assistance it a small delegated, [was] function [was] suit for subject could be to contractors when dele protect to step function Mangold, 77 F.3d participation. their contractors, particularly private to gated interest held that this 1447. The court unques light government’s in- defamed outweighed potentially that of delegate governmental to tioned need Id. seeking compensation. dividuals per government cannot functions. Here, strong need to had necessary proper services form all in its interro- contractor assistance receive out therefore contract itself and must shortage a substantial gations because of by the performance some services were a interrogations And personnel. private sector. When effort de- major component of the war discretionary governmental delegates military intelligence. signed gather to contracting pri through functions with Mangold, subjecting contractors Like contractors, therefore, the same vate actions would risk interference in Barr public [v. interest identified availability of well as the interrogations, as Matteo, 564, 79 S.Ct. 360 U.S. impor- Because of the civilian assistance. (1959) and [v. L.Ed.2d 1434 ] prose- in the effective public tant interest Westfall Erwin, 292, the alternative mecha- cution of war and (1988) in efficient interest against, ] L.Ed.2d 619 to ensure already place nisms — the gover for, the abuse for which compensate nment—d emands compensation in ability meaning plaintiffs seek government possess conclude, case, Mangold, I would contracts to fully investigate these immunity outweigh alleges “forcibly the benefits of that he subjected was costs. sexual acts a female as he was cuffed bars,” and shackled to cell was “dragged bottom, rely I on these addi- At by a rope part where of it was tightly tied question doc- grounds political tional —the penis,” “subjected his to [a] trine and derivative absolute —to ¶¶ 32, 37, mock execution.” Id. 39. Other reverse the district court’s order and re- asserted beatings, abuses include food and mand this case to the district court for sleep deprivation, humiliation, being dismissal. forced rape to witness the of a female ¶¶ detainee. See KING, generally id. 11-63. Judge, dissenting: Circuit my distinguished write to dissent from Complaint The relates that CACI has in colleagues majority. For the same “admitted ... that it ability had the to length my reasons I discuss at dissent control, direct and influence the actions ing opinion companion in our case of Al- performed by employees,” and it insists Services, Inc., Quraishi v. L-3 657 F.3d that prevent CACI was able “to employees (4th Cir.2011), jurisdiction 201 lack we from torturing plaintiffs.” Complaint decide, over interlocutory appeal this to as ¶¶ plaintiffs 76-77. The further maintain does, majority plaintiffs’ that “CACI at all obliged by times [was] preempted by claims are law. the terms of its contract supervise [its] adjudicate we Were authorized the mer ¶ employees.” aware, Id. 78. CACI was defense, however, its of the we according plaintiffs, to the “that the Unit- unavailing should rule it here. ed States intended and required person acting under the contract [with]

I. United States would conduct themselves in accordance with the relevant domestic and A. ¶ international laws.” Id. 98. Nonethe- plaintiffs’ claims arise from their less, by engaging directing in and the tor- maltreatment while detained the Abu plaintiffs, ture of the “directly CACI con- prison during Ghraib our nation’s terms, tradicted the contract domestic law campaign Iraq. According opera- to the and the United express policy States’ (the Complaint tive Amended “Com- ¶ CACI, torture.” Id. 115. plaint”), allegations of which we are plaintiffs say, consequently liable to bound to take as stage true of the Virginia them under law the torts of proceedings, civilian of CACI assault, assault and battery, sexual inten- International, Inc., and CACI Premier tional negligent and infliction of emotional “CACI”), Inc. Technology, (collectively distress, negligent hiring supervi- interrogating plaintiffs while or assist- sion. ing in interrogation, conspired their with ], ], 12(b)(1) 12(b)(6) military personnel “instigate[ Pursuant to Rules directf in, participate[ Procedure, of the ] [and] aid[] abet[] Federal Rules of Civil clearly conduct towards detainees that vio- CACI Complaint, moved dismiss the Conventions, (1) Army lated the Geneva asserting, among things: other that the Manual, Field and the nonjustieiable political ques- laws the United suit raised a ¶ (2) tion; Complaint plaintiff States.” 67.1 One that CACI was entitled to immu- (Ci- Complaint Appendix parties is found at J.A. 16-41. "J.A._” tents of the Joint filed appeal.) tations herein to refer to the con- to this space having devoted considerable lacking, its association nity derived dissenting opinion (3) subject my that, logical exten- as sovereign; Al-Quraishi v. today’s companion case decision Supreme Court’s sion (4th Services, Inc., F.3d 201 Cir. 487 L-3 Technologies Corp., Boyle v. United 2011). only 2510, say it to basis L.Ed.2d 442 Suffice 108 S.Ct. U.S. support the exercise arguably that could (1988), law claims state plaintiffs’ jurisdiction, v. order see Cohen in the context of collateral having arisen preempted, Corp., 337 U.S. fed- Industrial Loan activities conducted combatant Beneficial (1949), 93 L.Ed. 1528 denied 69 S.Ct. The district court eral interest. ground of dismissal on the motion, argument the denial rejecting CACI’s immunity, was not sovereign nonjusticiable. derivative claims were the plaintiffs’ Tech., “conclusively by the district determined” Premier Al v. CACI See Shimari Hallock, (E.D.Va. required court as Will Inc., 708-14 F.Supp.2d 345, 349, L.Ed.2d 2009). to decide The court declined (2006). The denials of dismissal based stage, con- 836 at the dismissal immunity issue doctrine and on political question it could not “determine cluding contract, by the Dis- Boyle preemption, applied scope of Defendants’ in v. Titan it Defen- trict of Columbia Circuit Saleh discretion afforded the amount of (D.C.Cir.2009), detainees, though 1 Corp., or the 580 F.3d dealing with dants determined, im- immunity conclusively abridged no recognizing costs and benefits result, ground meets examining complete munity. a As a neither case without being “effec- discovery place.” prerequisite has taken the additional record after record, a final according tively appeal on The limited unreviewable” Id. at 714. Will, 349, court, at judgment. See 546 U.S. district also cast doubt amounted interrogation practices S.Ct. 952. CACI’s Id. at 725. The to “combatant activities.” accepts ap- majority The nevertheless plaintiffs’ claims were court ruled 416-17, re- jurisdiction, see ante at pellate ” Boyle, any preempted “not event interlocutory versing the district court’s significant a present “do not because instructions to remanding order and uniquely with a federal interest.” conflict plaintiffs’ remaining claims dismiss the district court’s days following Id.2 Five theory underlying preempted on the same commence, discovery ruling, before could Put- the D.C. Circuit’s decision Saleh. appeal. CACI noted this ar- jurisdictional defect for ting aside the sake, the ma- gument’s I take issue with B. jority’s preemption of Saleh embrace potential of its extravagant not reiterate in de- relieve CACI need why jurisdiction appeal over this this matter.3 tail political sovereign Though the state law rivative 2. it declined to dismiss claims, granted court CACI's mo- district addressed in the defenses not pertained tion insofar as it to federal claims only Judge majority opinion, but discussed plaintiffs pursuant to the Alien asserted nonprecedential opin- Niemeyer’s separate, Statute, § See Al Shi- Tort mari, 28 U.S.C. 1350. ion, unhelpful and con- I believe it would be F.Supp.2d at 726-28. my fusing debate them here. Left to own devices, CACI’s I would not resolve the merits 3. I address Saleh on jurisdic- arguments as we lack on the merits majority’s pro- because there is much in the Kellogg, Taylor v. consider them. tion to analysis vocative of the issue that should Cir.2011), (4th also decided de- 658 F.3d 402 be left unanswered. Inasmuch as CACI's appropriate design II. lection of the for mili- tary equipment to be used our Armed A. assuredly discretionary Forces is a func- tion” under the FTCA because often “[i]t 1. merely engineering analysis involves not majority purports merely apply judgment balancing many but as to the Boyle decision in Supreme Court’s technical, military, and even social consid- Technologies Corp., 487 U.S. United erations, including specifically the trade-off (1988), 101 L.Ed.2d but greater safety great between combat by adopting reasoning of Saleh v. Ti- Boyle, effectiveness.” (D.C.Cir.2009), Corp., tan Accordingly, S.Ct. 2510. the Court conclud- presenting highly facts similar to this case ed “state law which holds Government one, Boyle excessively it affords an robust design contractors liable for defects in mil- elasticity. Boyle recognized a itary does in some circum- equipment law, implicit preemption of state form of present ‘significant stances conflict’ with conflict” “significant based on between policy displaced.” must be Id. “uniquely federal interests” and state law 108 S.Ct. 2510. The Court ac- sought impose on a plaintiff duties the knowledged that Boyle preemptive private contractor. See 487 U.S. at principle “ordinary” pre- was distinct from 506, 512,108 S.Ct. emption and was not tethered to “legisla- Boyle pro- The contract in was one for specifically tion immunizing Government in which the con- curement 504, 507, contractors from liability.” Id. at manufacture and tractor was to deliver 108 S.Ct. 2510. outward-open- an helicopters with hatch not ing escape hatch. This could Supreme The Court stated no uncer- underwater, opened allegedly ren- terms, however, tain presence that the of a design defective state law. dered the “merely federal interest a establishes nec- significant To a conflict determine whether sufficient, essary, not a condition for the present, was Court looked statu- displacement of state at law.” 487 U.S. tory “discretionary exception functions” to 507, “Misplace- 108 S.Ct. 2510. Such a (the the Federal Tort Act Claims ... only signifi- ment will occur where “FTCA”), sovereign which reserves the cant conflict exists between an identifiable for, among of the United States policy operation or interest and the things, “[a]ny upon other claim ... based law, of state or the of state law application performance the exercise or or the failure specific objectives would frustrate of feder- perform discretionary to exercise or (citations, legislation.” al Id. internal quo- duty part function or of a federal omitted). marks, tation and alterations Government, an agency employee of the Although conflict with federal policy “[t]he whether or not the discretion involved be not sharp need be as as which must 2680(a). § abused.” 28 U.S.C. ..., ordinary exist for conflict 507-08, specific exception, there must be.” Id. at Guided FTCA added). Supreme (emphasis reasoned that “the se- 2510 today, opinion jurisdiction Taylor unques- I authored the of the Court in Our was tion. tioned, however, which, out, Judge Niemeyer points appeal in that taken as ante 421-22, judg- indisputably we the district court’s from the district court's final de- affirmed ground dispute dismissing plaintiff’s ment on the that the in that cision case. See ques- § presented nonjusticiable political U.S.C. 1291. case of the United States laws ability of the United States undermine with invok- problem The rather obvious Iraq.” to achieve its mission in conduct- “interest

ing government’s (2004). 627,108th Cong. H.R. Res. war,” the conduct of controlling ing and plaintiffs’ preempt is not confined to the facile point ante indepen- an torture gratuitous claims of observation that no federal interest encom- contractor, is no conflict is that there dent passes the torture and abuses that im- federal interest the two. No Indeed, between plaintiffs allege. quite plausi- it is detainees. and abuse of plicates the torture government pri- would view ble repeated declarations contrary, To the perpetrators vate tort actions executives, Congress, of our echoed advancing the federal such abuses practices. such expressly disavow in effective activities. interest intervened on has not shortly graphic pho- after example, For dispute, of the in this behalf contractors abuse at Abu Ghraib depicting tos detainee and,, fact, Department of Defense public, President Bush vowed became “DOD”) (the promulgated has a final rule pris- in that practices place “the that took advising “[inappropri- contractors that the represent don’t on are abhorrent and subject ate use of force could a contractor Release, House, Press America.” White pros- or its subcontractors or Arabiya Bush Meets with Al President liability or civil under the laws of ecution Television, (May 2004 WLNR 2540883 the United States and the host nation.” 2004). pledged people “[t]he He Ac- Contractor Personnel Authorized to investigate Middle East ... that we will Forces, Fed.Reg. company U.S. Armed truth,” and fully, that we will find out the 2008) (Mar. (the 16,764, 16,764, 16,767 “justice will be further assured Rule”). “DOD Similarly, Secretary served.” Id. of De- Congress testified before fense Rumsfeld “may govern- The DOD Rule reflect the prisoner Ghraib abuses were Abu general con- permitting ment’s view that na- “inconsistent with the values of our advance, impede, tractor will tion,” asserting that mis- “[p]art [our] foreign policy by demonstrating that we believe in—is mak- part what ‘the United States is committed to ensur- sion— wrongdoing sure that or scandal ing when subject ing that its contractors are to occur, up, that are not covered but proper oversight and held accountable for ” exposed, investigated, publicly disclosed— (Gar- Saleh, their actions.’ at guilty brought justice.” and the to Donald land, J., dissenting) (quoting Dep’t U.S. Rumsfeld, Testimony H. the Senate State, Release, Department Press of State Before 1, and House Armed Services Committees Legal Accountability Adviser Promotes 2004). 7, (May Military Security Companies Private 2008)). (Sept. As the Saleh dissent

For the part, “condemn[ed] Senate emphasizes: strongest despicable the terms the possible government’s acts at the failure to defend the prison.” Abu Ghraib S. Res. (2004). Meanwhile, may Cong. the contractors reflect the Executive 108th country’s that inter- Representatives House of declared that Branch’s view by demonstrating practices ... ests are better served “offenfd] Abu Ghraib ac- “people the American will be held to account principles and values of ... the Execu- people cording and the United to our laws.” And States orders, may way that one to show policies, and contradict tive believe Boyle only. to account” is services As the will be held eral “people country’s legal system selecting military equip- acknowledged, permit ordinary provide merely engineer- course and take its ment “often involves not wrongfully remedy for those who ing analysis judgment but as to the balanc- injured. technical, many military, and even ing of social considerations.” 487 U.S. at Id. Ultimately, govern- 108 S.Ct. 2510. bottom, Boyle does not countenance At than contractor be in ment rather must there sim- majority’s approach because charge decisionmaking in order for the less, “significant is no conflict—much ply liability. contractor to be shielded from state law conflict”—between the asserted Consistently principle, Boyle with that interest. any uniquely federal duties test for suit “assure[s] Quite plaintiffs allege opposite: policy is within the area where the of the policy. Boyle that CACI violated ‘discretionary function’ frustrat- would be because, as dis- apply, does not the Saleh is, design ed”—that “that the feature explained: sent was considered a Government Boyle applied protect has never been officer, merely by and not the contractor resulting a contractor from itself.” M4 violation of federal law the contractor’s dispute And there is no policy. contrast, By government itself has true, if alleged, violated the conduct recognized judgments that such are not Hence, these cases are not within both. general contracts. As present services policy the area where the “discre- explained rulemaking, in a recent DOD frustrated, tionary function” would public policy Boyle rationale behind “[t]he significant no conflict they present performance-based not apply does when Preemption with federal interests. in a statement of work is used services justified Boyle. therefore contract, because the Government does Saleh, (Garland, J., 580 F.3d at 23 dissent- not, fact, specific exercise control over (internal cita- ing) quotation marks and the actions and decisions of the contractor omitted). tions or its subcontractors.” DOD Rule, 16,768. Fed.Reg. In other B. words, government’s precise control contractor, integral over its which was so Boyle’s reasoning, see 487 at 509- underlying Boyle’s rea- premise Another in a general is absent soning rigid govern- control —the contract in which the services procuring over contractors in ment exerts where, simply “a contractor to ensure its requires absent as military equipment—is here, employees comply with host nation law government gen- the contracted for 61, Malesko, 6, recently, Supreme Corp. v. 74 n. 4. More Court has reit- Servs. (2001). scope Boyle preemp- L.Ed.2d 456 the narrow 122 S.Ct. As erated defense, recently explained, grounding "[t]he in a the Fifth Circuit tion as well as its Boyle, compliance government government contractor defense in in- contractor’s essentials, fundamentally stripped example, the Court has re- to its is structions. For "special made me do it.” Boyle presenting a cir- claim that the Government ferred to Steering Litig. Comm. government Katrina Canal Breaches in which "the has cumstance” Int’l, Inc., Group very thing v. Wash. 620 F.3d directed a to do the contractor (5th Cir.2010). subject is the of the claim.” Correctional Rule, of such au authorities,” 73 Fed. acted within the bounds DOD other 16,768. thority, Rodriguez see v. Lockheed Reg. at (9th 1259, 1266 Corp., Martin military contractors that while It follows Cir.2010) claim (refusing to deem Boyle-type argu- to assert might be able Boyle where “there preempted re- government’s decisions ments when as a matter of proof is no to establish parties, third the DOD injuries to sult [alleged the equipment law “sendpng] signal adamantly opposes injured the have conformed to victims] to shift the risk of loss invite courts would government’s precise specifica where “contrac- parties” third to innocent tions”); accountability to avoid ... seek[ ] tors their own actions rais- parties third (cid:127) authority “validly Whether such sovereignty ing defenses based contractor, conferred” to the see Rule, DOD 73 Fed. States.” United Boyle, 487 U.S. at 108 S.Ct. 251 added). 16,768 Accord- (emphasis Reg. (quoting Yearsley v. W.A. Ross Const. ingly, “retain[] the DOD elected 20-21, Co., law, holding rule of contractors current (1940)); L.Ed. 554 negligent for the or willful ac- accountable (cid:127) gov- Whether and to what extent the officers, and sub- employees, of their tions significant ernment had a interest opposition Id. In obstinate contractors.” specific provided, services to see be prescribed path, government’s 509,' (recognizing id. 108 S.Ct. 2510 contractors from majority protect would “significant justifying conflict” there is no indica- civil even when may present not even government tion that authorized duty “precisely state con- where underlying liability. conduct the asserted trary” duty, gov- to contractual since may “significant ernment lack interest specified particular feature” th[e] Contrary majority’s position, contract). whether authorized only conduct in- this case can CACI’s be. majority’s inquiry extra-contractual by examining the contract ascertained be- into whether “a civilian contractor is inte- which, parties, as the district tween the grated into wartime activities combatant lamented, court is not the record at the military broadly over which the retains stage. The contract shed dismissal authority,” (citing command ante at 420 light Saleh, on: 9), 580 F.3d at is of scant moment

(cid:127) delegated considering agency possessed discretion- the lack of The contractor’s is,

ary authority- the rank-and-file to alter or services —that provide augment contractor was to under the the material of the con- terms whether the contractor tract.5 contract —and Army provides that chain As the em-

5. The Field of command. Field Manual Manual n “[cjommanders phasizes, do have direct control "the terms and conditions of the ...; only relationship over or their contract establish the between contractors (U.S. Government) manage, supervise, give contractors di- and the con- directly employees.” Dep’t- Only can rections to their tractor. .... the contractor 3-100.21, military Army, supervise employees. chain the Field Manual Contrac- its The (cid:127) (2003). management § tors on the 1-22 of command exercises control Battlefield 3-100.21, turn, through § their contract.” Id. at 1- the contractors must adhere to the such, obligations regard government “no more contractual without 25. As the has (“FTCA”) course, sup- identify pertinent to to the there is no evidence Of supposition interest, of “inte- majority’s the port Supreme Boyle the Court re- means) (whatever that in this gration” minimum, quired, reviewing at a case, gleaned can be than what other alleg- courts would examine a contractor’s But Complaint. of the allegations bare the to edly tortious conduct determine wheth- wholly irrelevant absent the truly product of govern- er it was the the the terms of the writ- any allegation that discretion, merely or an ment’s exercise materially supple- were agreement ten ordinary, lapse of care. unprovoked The (or be, could changed even mented or that mini- majority’s approach avoids even contained a the event that the contract by analysis grounding mal the asserted alterations), barring parol provision valid in a exception federal interest different authority with representatives either the FTCA—the combatant activities ex- of con- through parties’ course act or ception majori- umbrella of which the —the Here, although plain- dealing. duct or ty deploy over contrac- conspiracy with members of allege tiffs tors whenever there are “actions taken in to the infer- military, they are entitled military operations connection with U.S. not define the conspiracy ence that the did overseas.” Ante at 418.7 contract, permitted but instead CACI ante at 416 act outside its bounds. majority thereby ignores the Su- Cf. (“While the plain- of the abuses that some preme warning Court’s the FTCA’s of the com- allegations in the tiffs detailed exceptions equally equipped are not to de- approved to have been plaint appear implicit the contours of an preemption. fine another, or others military point at one Boyle point made the through not.”).6 clearly States, of Feres v. its discussion United 95 L.Ed. 152 C. (1950), in it which was held FTCA 1. sovereign immunity not waive does with respect brought against to suits the United discretionary function By relying on the injuries Tort Act States service members for exception to the Federal Claims Pentagon any contracting party at the or than has over contract resided else- control where, counterparty. may fairly And that —without more—is but we certain that such enough to make the conduct of a contrac- authority did not reside Abu Ghraib. That tor 'the combatant activities relatively military personnel may low-level ” Saleh, (Gar- 580 F.3d at 34 naval forces.’ encouraged have violated their orders and land, J., (quoting dissenting) 28 U.S.C. counterparts to act their civilian outside 2680©). § legal bounds of the contract —and settled way principles no translates to a conclu- —in majority upon plaintiffs’ alle- 6. The seizes summarily escape CACI should lia- sion that gation conspiracy between CACI and bility ground imputed actions 418-19, sup- military personnel, ante at see gov- with to it were somehow consistent supposition port its irrelevant that CACI ernment's interests. integrated employees were into the mission “mis- Abu Ghraib. Whatever By enacting excep- the combatant activities Ghraib, it did not include sion” was at Abu FTCA,Congress expressly reserved event, tion to regard- torturing plaintiffs. In sovereign of the United States relationship the soldiers between less of arising respect "[a]ny claim out of prison, at the the duties of the and civilians activities of the or naval combatant exclusively by con- were defined CACI’s latter forces, Guard, during time of or the Coast government. We do not know tract with the 2680(j). § authority 28 U.S.C. governmental to amend the war.” whether 434 509,108 at exception, Boyle, 487 U.S. S.Ct. course of their in the

sustained majority’s preemption of version service. exception activities is combatant declared the Feres Court Supreme The broad, ... “extraordinarily resulting] not whether to ascertain doctrine unsuitable preemp- but in field conflict between federal conflict exists significant Saleh, (Garland, J., at 23 tion.” 580 F.3d duty, state interests and an asserted (internal quotation marks omit- dissenting) that are produces results “logically that it ted).8 broad' and in some respects in some too at Boyle, 487 U.S. respects too narrow.” example an 2510. As S.Ct. 2. former, that “[s]ince the Court observed majority attempt no to con- The makes all service-related tort prohibits

Feres sweeping preemp- ceal the breadth of Government, a contrac- against claims today, confidently adopts tion doctrine it it upon pro- that rests should tor defense maintaining approach properly im- its tort claims hibit all service-related plements what it characterizes as “the id., manufacturer,” a result policy eliminating concepts FTCA’s deemed inadvisable. See Supreme Court (quoting from the battlefield.” Ante Nakhla, Al-Quraishi also 7). Saleh, majority vastly 580 F.3d at The (D.Md.2010) (declining F.Supp.2d case, however, because, overstates Saleh, part adopt rationale of based much narrowly, more Supreme rejection on Court’s of Feres as policy the FTCA’s is to eliminate the “because Feres preemption, [the basis liability government’s for battlefield does not take into account wheth- defense] That, all, what torts. after is the FTCA er the Government exercised discre- says. But it plain is played any tion or role the contractor’s policy FTCA’s is eliminate acts, alleged required by tortious a contrac- alleged when the tortfeasor is ultimately part three test articulated That, tor rather than a soldier. after ”). Boyle all, says. is not what the FTCA majority’s invocation of the combat- Saleh, (Garland, J., exception ant activities suffers from dissent- ing). Judge eye Garland’s is keen: Supreme same defects. While the waives, “limiting specific excep- an with certain sought appropriate to discern FTCA tions, identifying any sig- sovereign immunity constitution- principle” assist States, ally op- nificant state federal afforded the conflict between United policies discretionary through agencies. under the function erates its various federal po- ordinary battery. Inasmuch as the FTCA contains other from an assault or tentially applicable exceptions "[a]ny identifying the difficulties in relevant FTCA —for arising foreign country,” in a and for claim impossible exception it to artic- makes almost arising "[a]ny bat- [and] claim out of assault why ulate the one for combatant activities occurs, tery” regardless where it 28 U.S.C. observes, Judge matters at all. As Garland 2680(h), (k) baffling majority § —it 'degree integration’ ... "the test seems correctly identify can the combatant activities wholly point” beside the once these other exception that decrees the relevant as the one Saleh, exceptions 580 F.3d at are considered. policy. particularly This is so absent J., (Garland, dissenting). Inevitably, any meaningful majority discussion limiting principle depart we "[o]nce activity,” what constitutes "combatant Boyle, to draw the it is hard to tell where may place whether such take do- activities mestically, they may distinguished or how line.” Id. 2674, and the States is substituted as the §§ 2675. Government United 28 U.S.C. See contractors, however, defendant, ex- expressly dispute are after which the is party (as reach. See id. from the FTCA’s governed by cluded the FTCA well as its (“[T]he ... agency’ ‘Federal § 2671 term immuni- exceptions sovereign that retain with the any not include contractor does 225, ty). Haley, See Osborn 549 U.S. States.”). majority’s descrip- United (2007). 127 S.Ct. 166 L.Ed.2d 819 policy as the wholesale tion of the FTCA’s Act incorporates But because the Westfall torts, even those elimination of wartime definitions, it too excludes FTCA’s therefore by private parties, is committed government majority contractors. Yet the inaccurate. plaintiffs’ preempted deems the claims difficulty exempt-

Congress has had no Attorney the absence of an General’s certi- from other ing private parties fication that would have been essential Consider, example, the stat- contexts. were these defendants soldiers or sailors 4(b), § ute found at U.S.C. 2291— majority rather than contractors. The an aircraft that the interdiction of provides thereby grants unqualified the defendants country, pursuant conducted foreign over a protection that our in uni- even citizens program, presidentially approved to a enjoy. form do not ... give not rise to civil action “shall majority gleans specific also several employees States or its against the United policy conflicts that tort suits con added). (emphasis Con- agents.” Id. about, bring tractors would but these con exemption no gress has issued similar evaporate upon inspection. cerns closer wholesale exclusion anything, here. If its majority only from the limit- The asserts that “[n]ot contractors of the FTCA leads to the protections potential liability against ed tort ... CACI should be opposite conclusion—that contractors affect effi costs and for its civil misdeeds. held liable availability,” ciencies and contractors’ but present possibility “would also Further, only addresses the FTCA military commanders could be hauled into States; it does not immunity of United civilian purpose courts for the of evaluat armed services or shield members of the ing differentiating between from tort government employees other and contractor decisions.” Ante at 418. Instead, Act provides suits. the Westfall al possibility cost-passing But the protection, long so as the sort ready taken into consideration at an earli “that the defen- Attorney General certifies is, stage Boyle inquiry, er scope employee acting within the dant determining uniquely whether employment.” of his office or 28 U.S.C. 2679(d)(1). certification, directly interest affected.” 487 Upon § such “will 507, 108 from the lawsuit U.S. at S.Ct. 2510.9 employee is dismissed preventing deterring McKnight, effectiveness while In Richardson v. (1997), taking contractors and their 138 L.Ed.2d 540 Richardson, qualified Supreme declined to extend unlawful actions. See guards ("Competitive pres- privately employed prison 117 S.Ct. 2100 only guards § mean that a firm whose in an action under 42 U.S.C. 1983. The sures that, damages per aggressive because contractors are too will face Court reasoned costs, subject thereby threatening replace- forming are raise service contracts ment, guards “competitive pressures,” the threat of but also that a firm whose market replacement by liability encourages comply will face threats of them to too timid train, screen, obligations other firms with records that demonstrate contractual promote ability to do a safer and a more supervise employees, their so as to their both rule, jurisdiction majority’s concern lack to announce this new respect to the With respectfully dissent. may be called to military commanders suits, testimony private provide remains unwarrant-

wholesale civil Ordinary proce- mechanisms of ed. provide am- legal and other doctrines dure safeguards against such interference. ple Procedure for Federal Rule of Civil courts to compels the district example, calling privileged quash subpoenas YOUNG, Plaintiff-Appellee, R. John cause an undue bur- matter or Moreover, remains den. secrets doctrine. free to invoke state CO., MERRILL LYNCH & say, deny preemption

All is to “[t]o Defendant-Appellant. Saleh, . grant plaintiffs reign.” not to free No. 10-20455. (Garland, J., dissenting).10 580 F.3d at 29 of Appeals, United States Court majority expresses The its fear law- Fifth Circuit. flexibility “undermine the suits will necessity requires determining Sept. intelligence.” gathering the methods for proves Ante at 418. a concern also Such allege that the con-

illusory. plaintiffs contrary to mili- personnel tractor acted tary ba- directives and law. asserted then, liability, is not one that would

sis of hamper flexibility needs gather intelligence, determining how rather one that would hold contractors but already violating to account for the bounds by military. set

m. majority erroneously Because preemp- strains to discover a new form of unjustified by tion Supreme prece- dent, and, fundamentally, more because we job.”). litiga- description effective As in the own Richardson its chain of command” tion, potential compe- that, for tort looking "degree integration may tition between contractors well facilitate fact, existed between the and [con- government’s who selection contractors employees,” they thereby then tractor] "invite effective, lawful, perform will in a more wide-ranging judicial inquiry affi- —with inexpensive manner. davits, depositions, conflicting testimo- Saleh, ny rightly abjures.” the court

10. Moreover, —that majority’s approach brings J., (Garland, dissenting). very problems about it seeks to avert. is, "ignore military’s That if the courts

Case Details

Case Name: Al Shimari v. Caci International, Inc.

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Sep 21, 2011

Citation: 658 F.3d 413

Docket Number: 09-1335

Court Abbreviation: 4th Cir.