*1 Watch, Determination, Rights Human SHIMARI; Najim Bantekas, Cerone, Geoffrey Abdullah AL Suhail Ilias John Rashid; Arraq Corn, Glazier, Heller, Sa’ad Taha Yaseen David Kevin Jon Al-Zuba’e; Newton, Sassoli, Gary Salah Hamza Hantoosh Marco Michael Al-Ejaili, Plain Solis, Sullivan, Hasan Nusaif Jasim M. Dr. Anicee Scott tiffs-Appellees, Engeland, Supporting Ap Amici Van pellees, INTERNATIONAL, INCORPO CACI America, States of United Technology, RATED; Premier CACI Amicus Curiae. Defendants-Appellants. Incorporated, Al-Quraishi, Wissam Abdullateff Sa’eed Services, Kellogg Root Brown & Plaintiff-Appellee, Sup Incorporated, Amicus porting Appellants, Services, Incorporated, L-3 Defendant-Appellant, Fed of Civil Procedure and Professors and Chemerinsky, Courts, eral Erwin Distinguished Professor of Dean and Nakhla; International, In Adel CACI California, Law, University Irvine of corporated; Premier CACI Technolo Freedman, Law, Eric M. of School gy, Incorporated, Defendants. Deane, Distinguished A. Pro Maurice Law, Hofstra Professors of Civil Procedure and Fed- fessor of Constitutional Law, Courts, Chemerinsky, University Jennifer M. eral Erwin School of Director, Rights Distinguished Green, Liti Dean and Professor of Human Advocacy Law, University California, of gation International Irvine University Law, Freedman, Clinic, Law of Eric M. of Minnesota School Deane, Distinguished Hafetz, School, Associate Maurice A. Pro- Jonathan Law, Law, Hall fessor of Constitutional Hofstra of Seton Univer Professor Morrison, University Law, sity Law, M. Alan B. School of Jennifer of School Green, Director, Rights Family Dean for Human Liti- Lerner Associate Advocacy gation and International Public Interest and Public Service University Clinic, University Law, George Washington of Minnesota Law Hafetz, Vladeck, School, Law, Stephen Jonathan Associate I. School of Law, of Hall Univer- Law and Associate Dean Professor Seton Professor of University sity Law, Morrison, Alan B. Scholarship, American of for School Family College Law; Dean Washington Retired Lerner Associate Officers; Military Earthrights Public Interest and Public Service Inter University Law, George Washington national; Human International Law, Stephen Vladeck, Experts, I. Rights Organizations School Rights First, Professor of Law and Associate Dean Human The Center for University Scholarship, Torture, American The International Victims Law; Washington College Jurists, Working Retired Commission of Military Officers; Earthrights Inter- Group Established Commission national; Rights International Human of Mer on Human Use Experts, Rights Organizations Violating as a Means of Hu cenaries First, Rights Rights Impeding Human The Center for the Exer man Torture, Right Peoples The International Victims cise of the Self- *2 Jurists, Working Scholarship, University The Commission of American Group Washington College Law; Established the Commission Retired Military Rights Officers; Earthrights on Human on the of Mer- Use Inter- national; Violating cenaries as a Means of Hu- International Human Rights Organizations Rights Impeding Experts, man the Exer- Rights First, Right Peoples Human cise of the to Self- Center Torture, Determination, Rights Watch, Human Victims of The International Jurists, Bantekas, Cerone, Geoffrey Working Commission of Ilias John Corn, Group Glazier, Heller, Established David Kevin Jon Commission Newton, Rights Sassoli, Gary on Human Michael Marco on the Use of Mer- Solis, Sullivan, Violating cenaries as a M. Dr. Anicee Means of Hu- Scott Rights Engeland, Supporting Ap- Impeding man Van Amici the Exer- pellee, Right Peoples cise of the to Self- Determination, Rights Watch, Human America,
United States of Bantekas, Cerone, Geoffrey Ilias John Amicus Curiae. Corn, Glazier, Heller, David Kevin Jon Newton, Sassoli, Gary Michael Marco Al-Quraishi, Wissam Abdullateff Sa’eed Solis, Sullivan, Scott M. Dr. Anicee Plaintiff-Appellee, Engeland, Supporting Van Ap- Amici pellee, Nakhla, Adel Defendant-Appellant, America, United States of Amicus Curiae. Services, Incorporated; L-3 CACI Inter- 09-1335, 10-1891, Nos. 10-1921. national, Incorporated; CACI Premier Appeals, United States Court of Technology, Incorporated, Defen- Fourth Circuit. dants. Argued: Jan. 2012. Professors of Civil Procedure and Fed- May Decided: Courts, eral Chemerinsky, Erwin Distinguished Dean and Professor of
Law, University California, Irvine Law, Freedman,
School of Eric M. Deane, Distinguished
Maurice A. Pro- Law,
fessor of Constitutional Hofstra
University Law, School of Jennifer M.
Green, Director, Rights Human Liti-
gation Advocacy and International
Clinic, University of Minnesota Law
School, Hafetz, Jonathan Associate Law,
Professor of Hall Seton Univer-
sity Law, Morrison, School of Alan B. Family
Lerner Associate Dean for
Public Interest and Public Service
Law, George Washington University Law, Stephen Vladeck,
School of I.
Professor of Law and Associate Dean *3 Technology, Premier Incorporated;
CACI Devore, Agnieszka Frysz- M. Joshua S. man, McOwen, Maureen E. Mil- Cohen PLLC, Washington, stein Sellers & Toll D.C., for Professors of Civil Procedure Courts, Supporting and Federal Amici Condon, Appellees. Jennifer B. Seton Law, University Hall School Center Justice, Newark, Jersey; for Social New Gibbons, Lustberg, John J. Lawrence S. Manes, P.C., Jonathan M. Gibbons New- *4 ark, Jersey, Military New for Retired Officers, Amici Supporting Appellees. Rona, Milazzo, Gabor Melina Human Joseph Koegel, ARGUED: William First, York, York; Rights New New Jr., Johnson, LLP, Steptoe Washing- & LoBue, Robert P. Ella Campi, Richard D.C.; ton, Zymelman, Ari S. Williams & Kim, Shofner, Elizabeth Patterson Belk- LLP, D.C., Connolly, Washington, for LLP, York, nap Tyler Webb & New Appellants. Azmy, Baher for Center York, New for International Human York, Rights, Constitutional New New Rights Organizations Experts, and Amici York; Burke, PLLC, L. Susan Burke Simons, Supporting Appellees. Marco D.C., Washington, Appellees. for H. Herz, Vahlsing, Richard Marissa Jona- III, Byron, Thomas United States De- Kaufman, International, than Earthrights Justice, D.C., partment of Washington, D.C., Washington, Earthrights for Inter- for Amicus Curiae. ON BRIEF: John national, Amicus Supporting Appellees. O’Connor, Johnson, LLP, Steptoe F. & West, Tony General, Attorney Assistant D.C., Washington, Appellants for CACI Raab, Depart- Michael S. United States International, Incorporated and CACI Justice, Washington, D.C., ment of for Technology, Incorporated. Premier Eric Amicus Curiae. Delinsky, LLP, R. Spaeder Zuckerman D.C.; Washington, Peters, F. Whitten F. TRAXLER, Before Judge, Chief and Bowman, Greg Connolly, Williams & WILKINSON, NIEMEYER, MOTZ, LLP, D.C., Washington, Appellants KING, GREGORY, SHEDD, DUNCAN, Services, Incorporated L-3 and Adel AGEE, DAVIS, KEENAN, WYNN, PLLC, Sajadi, Nakhla. M. Susan Burke DIAZ, FLOYD, and Judges. Circuit D.C.; Washington, Gallagher, Katherine Dixon, J. Wells Center Appeals for Constitutional published opinion. dismissed York, York; Rights, New New Joseph Judge opinion, KING wrote the in which Rice, LLC, Pleasant, Motley F. Rice Judge Mt. Chief TRAXLER Judges Carolina; Akeel, MOTZ, GREGORY, South DUNCAN, AGEE, Shereef Hadi Valentine, PC, Troy, Michigan, DAVIS, KEENAN, WYNN, DIAZ, Akeel & for Appellees. Raymond Biagini, B. joined. Judge FLOYD DUNCAN wrote a Ebner, Lawrence Long S. McKenna & concurring opinion, Judge which AGEE LLP, D.C., Aldridge Washington, joined. Judge a concurring WYNN wrote Services, Kellogg Brown & Root opinion. Judge Incor- WILKINSON wrote porated, Supporting Appellants Amicus dissenting opinion, Judge in which International, CACI Incorporated, joined. and Judge NIEMEYER SHEDD bodies, dissenting subjected Judge NIEMEYER wrote them to sexual humiliation, abuse and Judge in which WILKINSON and opinion, traumatized them with joined. mock executions and other Judge SHEDD sa- operative
distic acts.
Second
OPINION
Complaint
Amended
filed in the companion
litigation, seventy-two plaintiffs,
headed
KING,
Judge:
Circuit
AI-Quraishi,
Wissam Abdullateff Sa’eed
Following
Iraq,
the 2003 invasion of
allegations against
detailed similar
L-3
United States
took control of Abu
Nakhla,
employee
and Adel
an L-3
resid-
prison
Baghdad, using
Ghraib
near
it to
ing Maryland.1
criminals,
provisional
detain
enemies of the
persons thought
and other
government,
I.
regarding the
possess information
anti-Co-
A.
insurgency.
alition
The United States
International,
contracted with CACI
Incor-
September
On
CACI
moved
(with
Technology,
CACI Premier
porated
Complaint
dismiss the Amended
filed in
Incorporated,
together referred to herein
the Eastern
Virginia,
District of
maintain-
*5
“CACI”),
Corporation,
as
and Titan
now
that,
(1)
ing generally
among other things:
Services,
(“L-3”),
Incorporated
L-3
dispute presented
nonjusticiable
po-
employees
civilian
to assist
provide
(2)
question;
litical
applica-
inevitable
communicating
in
with and inter-
occupied Iraq
tion
the law of
rendered
rogating
group
this latter
of detainees. CACI,
part
as
of the occupying power,
30, 2008,
Iraqis
On June
a number of
immune from suit under Coleman v. Ten-
nessee,
(1878),
who had been detained at Abu Ghraib and
97 U.S.
L-3 in the
District of
plaintiffs’
Southern
Ohio and L.Ed. 632
claims
Maryland,
the District of
alleging
preempted by
the were
the “combatant activi-
employees
contractors and certain of their
exception
ties”
to the Federal Tort Claims
(the “FTCA”),
in
§
were liable
common law tort and under Act
2680(j),
see 28 U.S.C.
(“ATS”),
the Alien Tort Statute
Corp.,
28 U.S.C. discussed
Ibrahim v. Titan
(D.D.C.2007),
§
torturing
abusing
F.Supp.2d
and
them
subsequent-
during Following
ly adopted
appeal,
incarceration.
see Saleh
Titan
(D.C.Cir.2009)
unopposed transfer of the
Corp.,
Ohio action to
the information in the [Second Amended]
2-
Complaint,
clearly
early
too
to dismiss
Al-Quraishi
Nakhla,
Defendants.”
Mangold
immunity
The assertion of
was
(D.Md.2010).3
way by
much
the district
F.Supp.2d
viewed
the same
The dis-
"
Mangold,
private
(quoting Mangold,
In
we reversed the district court’s
lawsuits.’
Id.
1446).
immunity
govern-
Mangold
denial
to the defendant
immunity
F.3d
While
cer-
employees
tainly
in a law-
removing
potential
ment contractor
its
has the effect of
brought by
litigation,
important
suit
an Air Force officer and his
distraction of
it is
to note
scope
wife
statements the contractor made to
narrow
of the immunization actual-
case,
investigating
ly
officials
applied
officer's al-
authorized in that
which we
leged
"only
necessary
misconduct. L-3 and CACI have each
insofar as
to shield state-
information,
heavily Mangold
proposition
relied
for the
ments and
whether truthful or
not, given
by
that our decision in
case likewise entitles
contractor and its
immunity
employees
response
queries
them to
for the tort claims asserted
by govern-
by
plaintiffs
Maryland
investigators engaged
here. The
district
ment
in an official in-
court, noting
vestigation.”
the defendants' additional reli-
light
at 1449.
International, Inc.,
disposition
appeals,
infra,
ance on Butters Vance
our
of these
we
(4th Cir.2000),
express
opinion
plaintiffs
each matter
II.
appellate juris
maintained that we lacked
A.
diction over the district courts’ non-final
denying
Except for
in-
respective
categories
orders
the contractors’
the limited
terlocutory
September
motions
dismiss. On
orders set forth
28 U.S.C.
cases,
§
opinions
appellate jurisdiction
we issued
in both
federal
is re-
panel
which a
concluded served for “final decisions of the district
Court,
jurisdiction
proper
was
courts of the United States.” 28 U.S.C.
§
undisputed
and that the district courts had erred in
1291. It is
that the decisions
permitting
underlying
putative appeals
the claims
the contrac
are in-
proceed.
terlocutory,
tors to
Al
procedural
See
Shimari v. CACI
least
(4th
Int’l, Inc.,
Cir.2011);
sense,
judgment
213 taken, appeal properly contest that neither or- It is also without the Court de- appealable by been certified der has exception jurisdictional clared no to the issuing pursuant court to 28 U.S.C. 1291, § prerequisites 28 U.S.C. but in- 1292(b), § that none of that statute’s stead described what would subsequently apply juris- otherwise to confer provisions doctrine,” be coined the “collateral order diction on this Court. Guterma, 65, MacAlister v. 67 (2d Cir.1958), as a “practical, rather than a only way we
Consequently,
be
technical construction” of the statute. Co-
appeal
the orders on
is if
entitled
review
hen,
546,
Cohen involved a stockholder’s deriva-
upon
prerogatives
croach[ ]
district
fraud,
mismanagement
action for
tive
judges,
play
court
who
a special role in
Supreme
in which the
Court reviewed the
Mohawk,
managing ongoing litigation.”
district court’s threshold
declining
decision
(internal
at 605
quotation
marks
requiring plaintiffs
to enforce a state law
omitted).
addition,
interlocutory
routine
post security ensuring
in such
cases
attorney
unacceptably subject
review
payment of
fees
the event the
would
merito-
corporation prevailed. Deeming
defendant
rious lawsuits to “the harassment and cost
scope”
(1982) (denial
apparent
7. This "modest
from the
102 S.Ct
may give (internal omitted). quotation Id. marks Rubber Firestone Tire & Co. judgment.” 374, 101 669, contrast, if 368, By right at issue is one S.Ct. Risjord, 449 U.S. (1981) (internal subject binding to a judgment “not to be quotation 571 66 L.Ed.2d omitted). is, liability— the court”—that a defense to marks just right then the can be vindicated as Moreover, there is no need to con readily appeal judgment, from the final broadly given the existence of strue Cohen and the collateral order doctrine does not “safety alternative. The valve” a suitable 527, 108 apply. Id. at S.Ct. 1945. interlocutory discretionary review under In assessing right sought whether the 1292(b) frequently § is a “better 28 U.S.C. protected immunity be constitutes a true vindicating ... [certain] vehicle for serious defense, merely requires “§ not a 1291 blunt, categorical than the instru claims appeals claims of a [the court] view § appeal.” ment of 1291 collateral order [a] not to if ‘right skepticism, be tried’ with Direct, Equip. Corp. Desktop Digital jaundiced eye.” Digital Equip., not a Inc., 1992, 511 U.S. S.Ct. 873, S.Ct. 1992. As the Su (1994). Accordingly, L.Ed.2d 842 the col cautioned, preme Court has must be “[o]ne doctrine lateral order should “never be ... play games careful not to word general to swallow the rule that a allowed ” tried,’ concept ‘right of a not to be single appeal, to a party is entitled States, Asphalt Corp. Midland v. United judgment until final has been en deferred 489 U.S. (citation 868, 114 Id. at S.Ct. 1992 tered.” (1989), “virtually every L.Ed.2d 879 omitted). right appropriately that could be enforced by pretrial might loosely B. dismissal be de conferring right scribed as not to stand Although properly appealable col trial,” Digital Equip., 511 lateral order under Cohen must of course foregoing S.Ct. 1992. It is within the satisfy requirements, all of the its Will framework that we review de novo the encapsulation hallmark is the of a right appealability of the district courts’ denial abridgement “effectively whose unre Forsyth, orders. See Mitchell v. appellate viewable” should review await 511, 528-30, 105 S.Ct. final judgment. Henry See v. Lake (1985) (equating qualified denials of immu LLC, Am. Charles Press 566 F.3d nity to collateral denials of other asserted (5th Cir.2009) (describing unreviewability jeopardy immunities or of double invoca as “the fundamental characteristic of the tions, and deeming prop de novo standard (citation collateral order doctrine” omit er based on non-deferential review of lat ted)). “critical question” determin claims). ter ing right effectively whether the at issue is unreviewable in the normal course “is III. right whether the essence of the claimed is, right Corp., to stand trial” —that wheth In Doe v. Exxon Mobil (D.C.Cir.2007), er it constitutes suit. 345 the District of Colum- Biard, Cauwenberghe v. attempted appeal Van bia Circuit confronted an (1988) 524, 108 1945, 100 interlocutory L.Ed.2d 517 from the district court’s or- (internal omitted). quotation refusing brought marks Ab- der an action dismiss *10 in- by villagers alleging authority any pro- serious are without to make Indonesian by juries upon them members nouncement on that aspect appel- visited the in that the defendants’ nation’s lants’ defense. We therefore withhold for According defen- private employ. to the the moment substantive comment the dants, nonjustieia- dispute a presented the doctrine, political question at least until we question. ap- The court of political ble defense, evaluate whether the law-of-war peals to address the merits of the declined preemption, Mangold or Saleh issue, noting single the absence of “a case jurisdictional provides green light for in which federal court held that appeals a proceed. us to a political denial of motion to dismiss on question grounds immediately ap- an is A.
pealable collateral Id. at order.” 352.8 yet appears lacking,
That case
to be
appellants
characterize their former
do
the con-
appellants
(L-
not contend to
Iraq
presence
“occupying
as
forces”
L-3, however,
3)
trary.
that an
(CACI)
ventures
“occupying personnel”
or
court
appellate
may determine whether an are
“only
country’s
answerable
to their
political
action
a
question
is
or otherwise
laws,”
25,
criminal
Opening Br. of
CACI
jurisdic-
nonjusticiable
proper
when it has
subject
and thus “not
civil
suits
a
pursuant
tion over
different
issue
to occupied,” Opening
Br.
L-3 at 22-23.
1292(b),
§
Cohen or
if consideration of the
that regard,
the appellants equate their
“necessary
former
meaningful
to ensure
situation with those of the Civil War sol-
Cnty.
review.”
Swint v. Chambers
Tennessee,
diers in
Coleman
97 U.S.
Comm’n,
(1878),
8. The
Circuit
Doe
D.C.
was
F.3d at 351. The
court
Doe
argument
appellants
notion,
here:
same
make
squarely rejected that mistaken
how-
premised
that the
of a
ever,
denial
dismissal motion
explaining
although
separation
powers
on the
doctrine is
‘honoring
separa-
Court has
"identified]
appealable collateral order under Cohen be-
powers’
support
tion of
as a value that could
necessary
pro-
cause immediate
“is
review
trial,
party’s
avoiding
[the
interest
judicial
tect the executive branch from
intru-
discussing
has]
d[one] so while
cases
foreign policy
sion
sensitive
into
matters”
involving immunity.” Id.
appeal
could not be remedied on
from a final
*11
appellants
is that the
Another distinction
permitted to
judgment was
Neither
to
the law-of-war defense
attempt
invoke
cases,
Supreme Court
In
the
stand.
both
al-
exclusively
that them
on the assertion
Confederacy
states
the
considered the
Iraqi
wrongs will
evaluated under
leged
be
country,”
enemy’s
to
have
“the
to
been
Mary-
law,
not
of Virginia,
the laws
“[ojfficers
the
and soldiers
tribunals
whose
land,
true,
may
If
that
or another state.
not sub-
of the Union were
of the armies
enough
bring
to
or
be
Coleman
Coleman,
B.
Indeed,
Boyle
Court itself repeatedly
fashion,
In a like
Saleh preemption
preemption
framed the
recognized
squarely
falls
on the side of being
creating
See,
a de
a mere
liability.
defense to
liability
(“The
fense to
not an immunity
e.g.,
at
487 U.S.
properly
9. The
proponent
implicit
Court has
right
dismissed
asserts is an
to be
875-76,
the mistaken
that
Asphalt's
notion
Midland
free from suit. Id. at
Though Boyle preemption,
like sover-
assess the appealability
qualifying
order in a
immunity,
categorical
be invoked to bar
collateral
eign
sense,
claims,
encapsulated rights
case-by-case
not on a
basis.11
state law
here
purposes.
Conducting
claims
that assessment
leads to
serve distinct
State law
of a
Boyle simply
preemp-
under
be-
the conclusion that the denial
preempted
11.
Although
presence
recognize an
of a “sub-
order as collater
S.Ct. 1992.
Whether
jurisdictional
interest,”
in
al is not "an individualized
particular
public
stantial
or "some
quiry,"
is based
the entire
but rather
"on
order,”
necessary
high
prereq-
value of
a
a
is
belongs.”
category to which a claim
Mo
Will,
appeal,
uisite
a collateral order
hawk,
Consequently, "we
221
dissent, Judge Niemeyer
materiality
In
contends
of factual issues.” Bazan
Pelletier,
299,
v.
516
116
Hidalgo
that Behrens
ex
Bazan v.
Cnty.,
rel.
246 F.3d
(5th
(1996),
Cir.2001).
834,
481,
773
By contrast,
S.Ct.
133 L.Ed.2d
490
we
Iqbal,
jurisdiction
v.
lack
if
an appeal
such
“chal-
Ashcroft
(2009),
each a quali-
lenges
It is more accurate to that orders motions, appeal mits an stage. the' dismissal See denying dismissal insofar as those 674-75, Here, id. at as in motions are based on immunities that are there is context, Iqbal, pretrial no “vast record” to not absolute but conditioned on *16 our decisionmaking, encumber at § such id. qualified as a 1983 but the issues us action before are or the derivative immunities at issue here, factually are, more entrenched and far less in accordance with Behrens and to meaningful analysis by amenable resort Iqbal, immediately appealable. sometimes Thus, merely plaintiffs’ to the pleadings. point: makes the Winfield Iqbal, appeals encompass unlike these fact- jurisdiction possess no over a claim [W]e law, issues of based with the need for plaintiff enough that a has not presented development additional being record prove plaintiffs to evidence that the ver- among those a “matters more within dis- actually occurred, sion of the events but trict ken.” court’s Id. claim jurisdiction we have a over no of clearly there was violation estab- Hence, an interlocutory insofar ap- as accepting lished law the facts as the denial peal immunity requires of a of reso- district court viewed them. (such a purely question lution of legal as 106 at 530. an generally, alleged F.3d More we whether constitutional violation jurisdiction appeal clearly law), would have like an over was of established or os- attempted “if it challenged] tensibly ones here be may fact-bound issue that re- (E.D.Va.2009). government may whether F.Supp.2d reveal deviations 717 Of and, so, course, from the contract occurred if can this evi- wheth- district court receive seal, otherwise, they er were tolerated or ratified.” Al under circum- Shi- dence or if the Tech., Inc., mari v. CACI Premier so warrant. stances zone, (1) (such when are in a war virtue law as whether matter of solved as a (2) government. with the in a of a contract or undisputed viewed facts that are Saleh, ring- which receives a immu- But not even material are particular light dissents, went in both calculus), ing rule endorsement may consider and nity we Behrens, that far. at upon it. See jurisdiction to (deeming appellate S.Ct. 834 adopted following court Saleh denial of
have
asserted over
properly
rule;
been
wartime,
private
where
“During
a
§
where
1983 action
summary judgment
integrated
into com-
service contractor
defen-
premised
was
on
ruling
adverse
over which the
batant activities
having violated
conduct
alleged
dant’s
authority, a
claim
retains
tort
command
law);
McVey,
clearly established
arising
engagement
the contractor’s
out of
jurisdiction over similar
at
(approving
preempted.”
in such
shall be
activities
stage,
appeal
legal
at dismissal
where
issue
F.3d
9. The D.C. Circuit
therefore
concerning
questions
factual
did not “raise
presence
on the
of a
conditions preemption
involvement, which would
the defendants’
public/private integration,
certain
level
appealable”).16
be classi-
the conduct of activities
combat,
military’s
Behrens,
then,
jurisdiction
fied as
and the
retained
confers
concerning
decisionmaking
prerogative
if the
record
appeals
process. Though the Saleh court had
pres-
can be
stage
dismissal
construed
luxury
complete
developed
record
of a
might
ent
issue of law. We
discern
pure
it in
through discovery
pondering
to assist
opinion,
such
if we were of the
an issue
are,
issues,
discovery
no
evidently
those
there has been
persons
dissenters
bar,
and the
appellants
pleadings
in-
the cases at
similarly situated to the
definitive an-
invariably
provide nothing approaching
from suit
evitably and
immune
occurring
all
swers.17
premised
conduct
on
Jenkins,
simply
note
there is
no
16. See also integration separate appellate jurisdiction believe entities (noting existence of qualified immunity whole denial of on motion into more or less unified is necessari- over dismiss, part ly equivalent as- legal based in defendant’s collaboration or alleged impli- violation did not conspiracy sertion that between those entities. right); clearly cate established constitutional that, respect It is clear also far from (recognizing juris- Winfield, F.3d at 530 alleged by plain- the torture and abuses appeal qualified denial over im- diction tiffs, "acting appellants were *17 under munity as district court ruled on sum- insofar military authority,” post presumed at as right mary judgment legal that asserted was by Judge If one felt Wilkinson. constrained established). clearly to on the form a conclusion authorization record, Wilkinson, question the available then Judge on behalf of our dissent- based on friends, ing to as fact contrac- one would be better served reference assumes that the that, pertinent allegations plaintiffs “integrated of the into wartime combatant tors were example, military,” that the States control of the "CACI knew United activities under 226, notwithstanding government post is no has denounced use of torture at that there inhuman, cruel, degrading support assumption, and other or treat- to record evidence ment,” “integration” Complaint Amended at or the con- Al Shimari even what means in 95; ¶ ig- Judge permitted translators to appears [its] text war. to "L-3 Wilkinson military’s equate integration plaintiffs' repeatedly—the instructions with the asser- nore— to abide Conventions,” (citing conspiracy. post by the Geneva Al- of a See at 227 tion Quraishi Complaint Complaint at conspiracy allegations of Second Amended Amended 430; affirmatively hid support V "L-3 the miscon- in Al "that the Shimari notion acting employees duct States here were of its from United contractors in collaboration ¶ supra military,” personnel”); id. at 433. with U.S. see also
223
Indeed,
require
questions
that will
The appellants
requesting immunity
ain context that
been
has
heretofore unex-
gauge
ap-
order to
proper answers
plored. These are not
disputes
which
immunity
yet
to
have
pellants’ entitlement
might
facts that
be
to
material
the ulti-
fully
Mangold v.
to be
ascertained.
mate
have
conclusively
issue
been
identi-
Services, Inc.,
supra
Analytic
note
Moreover,
may
fied.
those facts that
have
summary
on
appeal
relevant
issues
tentatively designated
been
as outcome-
judgment
included whether
yet subject
genuine
determinative are
to
conducting an
in-
personnel were
“official
is,
dispute,
a reasonable fact-finder
vestigation,” and whether the contractors’
could conclude
favor of
the plain-
either
giving
potential liability
rise to
statements
tiffs dr the defendants. See Metric/Kvaer-
responsive
investigators’ quer-
to the
were
Co.,
Fayetteville
ner
v. Fed. Ins.
ies,
opposed
being
extraneous there-
(4th
Cir.2005).
Because the
Services,
Analytic
to. See
v.
Mangold
immunity rulings
courts’
below turn on
Inc., 77
1449-50.
Subsequently,
jurisdiction
F.3d at
genuineness, we lack
to consid-
Inc.,
er them
an
International,
interlocutory appeal.
v.
See
Butters
Vance
su-
Winfield,
530; Bazan,
F.3d
summary
pra
judgment ap-
note
also
F.3d at 490.18
we
peal, were constrained to decide wheth-
Thus, although Mangold
job
immunity
withholding
promotion
er
con-
from the
upon
fers
those within its aegis
right
plaintiff
activity,”
was a “commercial
trial,
not to
appellants
stand
yet
have
employment
whether
decision was
establish
entitlement
to it. See
foreign gov-
made
the defendant or the
Martin,
(concluding
below that left of whether ATS ATS, litigation may private imposed have sued under the strat- actors. Obvious- egy judicial ly, plaintiffs' should not be construed as if the ATS claims be main- private admission that the actions of L-3 those tained L-3 as a but were actor States, thereby crystallizing agent acting of the United ac- within sovereign immunity scope agency, to a cess defense and of its L-3's status is one *19 providing, through appropriate the denial such immu- that be for of more issue juris- following nity, independent appellate discovery. basis district court to resolve Fruehauf, ened those photographs and the de- (1961) (“Such [advisory] L.Ed.2d 476 conduct praved reprehensi- that would be whenever, wherever, legal such opinions, expressions advance of ble and upon issues remain unfo judgment applied. which was But whomever acknowl- pressed edging are not before fact only question cused because that answers pro with that clear the Court concreteness of whether this is a hard It case. does not emerges when question precisely question vided answer the whether it is bad law necessary lasting consequences framed and for decision from whose abiding and adversary argument exploring damage long clash of ev distressing will outlive the ery of a multifaceted situation em that aspect photographs prompted have the suits bracing conflicting demanding and inter herein. ests, consistently we have refused to The styled actions here are as tradition- Further, my extent give.”). al wrapped ones and in the venerable colleagues, separate opinions, offer their clothing of the common on law. Even on underlying
views merits of these terms, however, they common law are de- nature[,] cases, opinions, “by those incorrect, monstrably and the impact express views that are not the law.” Arar will which tort doctrine on have (2d Ashcroft, 585 F.3d 581 n. operations mag- and international relations banc). Cir.2009) (en nifies immeasurably. the difficulties I say dare none of us have litiga- seen WILKINSON, Judge, Circuit quite tion like this and we default if we dissenting: accept uncritically indefinitely or entertain majority in this tries to present case of this novel violation basic most sort of jurisdic- its view as some innocuous customary of precepts both common and disposition. jurisdictional tional But the law. constitutional any- decision is ruling wrong, Sadly, majority’s opinion pre- does It inflicts thing significant but innocuous. decision, cisely reading this. After its one separation powers, on of damage allow- forgiven thinking could be ing civil tort suits invade theatres simple jurisdictional issue before us is a province conflict heretofore the armed question arising ordinary out of tort suits. those branches of constitution- But these are not routine appeals can ally charged safeguarding the nation’s quickly through be dismissed some rote most vital interests. application of the collateral order doctrine. fully join Judge Niemeyer’s I fine dis- requires This case instead us decide My good colleague ably sent. has ad- whether the contractors who assist our many failings today’s dressed military on the battlefield will held ac- decision, I no to repeat and see need those contract, through countable tort or here. be- points separately I write seemingly question common sleepy cause difficulties with these actions are goes law to the heart of remedies our legion single hope so that no dissent could separation powers. constitutional Tort them all. cover oversight military place opera- suits much, disagree judiciary, I on tions an unelected contract disagreement but there law in a politically is no about accountable executive. photographs appar- contrary Abu that have And in the absence of some Ghraib ex- See ante ently inspired litigation. part of the Article I pression legis- branch, good 209. Americans of will were sick- lative the basic of Arti- principles *20 of contractual, tort, why majority’s application the explains not II require ele goes beyond the order doctrine collateral apply. remedies on inflicting damage being incorrect this emphatically decides majority overseas. American interests not to de- question pretending weighty cide, appeals gives of these its dismissal as I. green light the courts individual district operations to the most subject military regimes well-known trade- Tort involve litigation. But of tort serious drawbacks inter- They may public the promote offs. in a to the Third Branch arrogating power victims, innocent de- by compensating est authority the military is contest over conduct, wrongful encouraging and terring Constitution, and wrong under our call However, accountability. tort safety and benign for this decision so garb there nois may law also lead to excessive risk-averse- what ma- import of as to obscure part potential on the of defendants. ness jority has done. in a may be And caution well-advised neatly to civilian context not translate territory peril. this at our
We tread military the calculus is setting, where contrary to of This decades decision different, high. con- and stakes run Risks fed- warning admonitions unacceptable in life are civilian sidered off with interna- eral courts interference necessary a battlefield. sometimes on military Of course con- tional relations. or high-value intelligence to secure order accountable, be and it tractors should held security, military and its maintain that a important framework be set agents quickly must often act and on But accomplish this task. instead place to imperfect knowledge. Requiring of framework, basis majori- establishing that of the costs and conse- consideration ty doing to mere drift and succumbs so quences protracted litigation tort intro- damaging in the most and places courts military wholly novel element into duces legal landscape possible. least defensible decisionmaking, one that has never before exactly all None of us have idea where country’s so history deployed our been in- damage this is headed or whether in a pervasively theatre of armed combat. will operations flicted on minimum, marginal truly At a or severe. judicial majority con- acquiesces however, today’s breaches a line decision judg- trol over these sensitive respected by predecessors our was It opens plaintiffs ments. the door I would cross high courts and low. discovery broad on boil- conduct based boundary even if the collateral order laundry erplate complaints alleging list all my steps. doctrine could cloak With claims, including law “assault state respect my colleagues, fíne I would “in- battery,” battery,” “sexual assault and these to the district court remand actions distress,” infliction of emotional tentional that they with direction be dismissed. “negligent hiring supervision.” By my dissenting opinion allowing go such claims to forward Part I of discuss- integrated war- unsuitability es the utter of tort actions contractors into such the context of an interna- time combatant activities under control military, thor- tional Part II raises theatre war. addresses why ny apply, of whose law should compatible questions contract law is responsibili- military’s ability to utilize separation powers compromises and the future, nudges for- ties the executive branch under contractors allocated eign away and war policy powers II of our Constitution. Part III Article *21 political govern- branches of the federal See Ironically, Part II. the com- infra ment and into the hands of federal courts. plaint speaks itself specifically in terms of Simply put, state claims no tort have a “abide[ failure to ] the contract passport foreign that allows their travel in terms,” Al-Quraishi Complaint Amended ¶ battlefields, no authority and we have to though plaintiffs even the were in no issue one. party sense a any to same. But breach of begin contract does not to confer clear, complaint
The makes and the con- a part cause action in tort on the dispute, tractors do not that the contrac- detainees a theatre of armed conflict. acting tors here in collaboration were Congress There is no indication that or See, personnel. military e.g., U.S. Al Shi- law-making other authority, ¶¶ federal or mari Complaint Amended state, wanted foreign nationals deten- majority 135. The nonetheless draws litigate tion relationship to tort the be- the odd distinction that contractors and military tween contractors U.S. military may “conspiracy” in a with- military when the itself as out being somehow “integrated.” See ante party to the contract has posited no at 222 n. need 17. addition the foremen- to do so. complaint paragraphs, tioned in fact
provides ample allegations
integration.
Al-Quraishi
example,
For
plaintiffs
A.
claim that
all
employed
“L-3
the civilian
point,
problems
From this
with this
military
Iraq,”
translators used
litigation only
First,
multiply.
largely
due
¶
Al-Quraishi
Complaint 78,
Amended
nature,
to their inventive
pres-
these suits
place during
“Defendants’ acts took
ent
the difficult question of whose law
conflict,
period of armed
in connection with
govern
should
majority
them. The
clears
hostilities” in which the
military
was
way
court,
sitting
one federal
¶280.
Indeed,
engaged,
they allege
id.
Maryland, to apply Iraqi tort
law to the
integration
complete
so
that civilian inter-
alleged conduct—in an Iraqi war zone—of
rogators
giving
military
were
orders to
a Virginia-headquartered contractor inte-
¶
personnel.
Id.
contrary
221. For its
grated into wartime combatant activities of
view,
majority
from
departs
the well-
military,
and for another federal
established rule that
take
we
the asser-
court, sitting in Virginia,
apply Virginia
complaint
tions of the
on a motion to dis-
similarly
tort
law a
situated contractor
miss as true. While
whole gravamen
alleged
occurring
conduct also
in an
complaint military-contractor
co-
Iraqi
is,
war zone. This
put mildly,
operation
collaboration,
majority
no
to run
way
a railroad.
would have
believe they
us
were more akin
strangers
in the night.
also
suggests
the con-
tractors
departed
have
Al-Quraishi
court
below
Nakhla,
instructions. See
(D.Md.2010)—
ante at
n. 17. If the
This
own
subject only
government,
Ira-
to their
fundamentally,
application
Most
laws,
by its au-
only by its
administered
agents
of the U.S.
qi law
*22
to
thority,
they
called
account.”
complete
of sover-
could
be
surrender
constitutes
(“The
added));
ques-
Iraqi
id. at 170
majority
(emphases
The
allows
citizens
eignty.
is,
governs
in an active
the law which
theatre
tion here What is
imprisoned
who were
invading
enemy’s country?
the occu-
It
bring
against
army
to
tort suits
an
of war
of
authority
Iraqi
causes
based
the civil
the invaded coun-
pying
is not
law of
novel,
Coleman,
only
added));
to
are not
try....”
(emphasis
action. Such suits
least,
(“Officers
in conflict with
but also
say the
of the
U.S. at 515
and soldiers
See, e.g., Dow
Supreme
precedent.
subject
of
not
dur-
armies
the Union were
Johnson,
100 U.S.
enemy,
v.
the
ing the war to the laws
or
of
(1879)
occupy-
(explaining
L.Ed. 632
com-
to his tribunals for offences
amenable
the
of
subject to
laws
are not
ing forces
They
mitted
them.
were answerable
v. Ten-
occupied territory);
the
Coleman
only
only by
their own
and
government,
to
509, 515, 517,
nessee,
The does municipal occupied territory] laws of [the foreign were case in which citizens allowed ... remain in full force so as the authority in own occupying the its to sue far country inhabitants are con- of action. foreign under causes courts affect, .... cerned This doctrine does not Likewise, support for its asser- offers no character of respect, exclusive apply and do not tion that Dow Coleman military jurisdiction of the tribunals contractors, only citing Ford v. army over the officers and soldiers (1878), 594, 24 Surget, 97 U.S. L.Ed. 1018 for, ...; already of the United States as law-of-war implying a case said, they subject were not to the laws nor limited to uniformed soldiers. See Ford, (holding amenable to tribunals the hostile a civilian 606-08 added)). country.” (emphases for cotton burning immune from civil suit military). support of the Confederate application Iraqi tort law to Moreover, prob- majority simply wrong military practical contractors creates American courts are ill- suggesting that the Dow and Coleman lems well. questions of Ira- protect- Courts were concerned suited decide unsettled Al-Quraiski, foreign qi district court in ing occupying authority law. The See, tribunals, instance, foreign Aiding considered ‘Whether contrast laws. Dow, (“When, Conspiracy and Abetting Recog- at 165 there- and e.g., fore, Iraqi marched into ... the ene- nized Torts Under Law and Whether our armies Law Allows my’s country, Iraqi Damages.” their officers and soldiers Punitive laws, argued F.Supp.2d at 764. The defendants subject were not to its nor amenable "[wjhether (2011) (Mem), Royal precluded by L.Ed.2d 292 claims could be Kiobel (No. 10-1491), what the Alien Tort Petroleum Co. in which and under circumstances Dutch recognize expected decide Statute ... allows courts to cause Court is provide[s] ... action violations of the law of nations whether "the Alien Tort Statute occurring territory jurisdiction sovereign of a subject over within the matter claims — States,” —, corporations,” Royal than the United Kiobel Dutch Petro other Co., (2012) (2d Cir.2010), leum (Mem). granted, — U.S. —, cert. Al-Quraishi abetting conspiracy reasoning aiding district court, stand, causes of action under which the cognizable are not allows to law, punitive damages paused the contractors have Iraqi tort and that should to con- potential liability Id. sider their remedy. are not allowed as a under tort disagreed, Iraq agree- substantive law of plaintiffs parties “sub- before ing supply Iraqi experts in needed person- mitted affidavits from law nel under the contract. support respective positions.” of their Id. surprisingly, considering difficulty Not course, corporations Of generally must law, ascertaining district foreign weigh potential liabilities before *23 court decided to “defer decision with re- agreeing specific projects. to possibil- of spect Iraqi to the content law.” Id. ity defending of a every lawsuit time a foreign citizen claims a violation foreign of Given the district court had trouble tort law might substantially prof- alter the deciding rudimentary questions such as itability government of Thus, contracts. aiding whether abetting conspira- and and agreeing before to perform the criti- most cy Iraqi are even causes of action under in intelligence cal functions of support the law, punitive and whether law Iraqi allows military, U.S. contractors would be forced damages, expect how can we court to investigate to and analyze the substantive challenging decide the far more nec- issues tort law every country of in which its instance, essary to a full-scale trial? For employees might work. This unenviable decipher how will it of standard care task would be even more burdensome action, for each cause of and determine when the substantive tort law varies from whether there was a can rely breach? It jurisdiction jurisdiction within a coun- course, expert on testimony, Iraqi of but try, as it does the United States. experts appear disagree law as to of whether these causes action are even words, In other a court that understand cognizable. See Accordingly, id. the ma- ably difficulty deciding had such elementa jority go allows federal court to forward ry questions as Aiding “Whether and with litigation Iraqi which sue citizens a Abetting and Conspiracy Recognized are U.S. contractor working hand-in-hand with Torts Under Iraqi Iraqi Law Whether military U.S. zone Iraqi war under Al-Qurais Law Allows Damages,” Punitive hi, causes of action that not even exist. F.Supp.2d is implying that contractors, playing before a critical role in decision, majority’s military Under the military the U.S. in Iraq, effort should face the prospect contractors of drawn out analyzed have the nuances permuta lawsuits under the law substantive tort of every tions of Iraqi might tort law that every country operate. they which conceivably affect By forcing them. con a regime Such is unworkable in an era highly tractors to undertake a complex and where military has no choice but to analysis deeply legal uncertain before aid private corporations. contract ing military operations, particularly our cases, present example, “a severe quickly those executed and in countries shortage” military intelligence personnel systems legal whose are unstable and un “prompt[ed] U.S. to con- familiar, majority jeopardizes mili tract with private corporations provide tary’s ability employ contractors interrogators civilian and interpreters.” future. 408. This use private J.A. contractors courts, military was deemed essential to the achievement Like the contractors military objectives. Yet, rely legal of U.S. under the experts analyze must on for- law Virginia tort application clear: the Iraqi that most suspects eign law. One conduct contrac- Iraq, law in to overseas battlefield practice legal experts authority indeed, AEQuraishi plaintiffs acting relied under tors em- Iraqi attorney of Ira- problematic application as the the declaration firm. Iraqi law Should at an ployed qi law. counsel from these sought have defendants First, is no indication whatsoever there the U.S. attorneys helping before Iraqi has Virginia the Commonwealth interrogation detention
military with
applied
its tort law
having
interest
contractors, be-
Should other
functions?
types
in these
of cases. Absent
abroad
in the
to aid
agreeing
fore
intent,
contrary legislative
we assume
Iraqi
reached out to
Iraq,
invasion
have
law to
legislatures do
want
tort
legal
ramifica-
lawyers for advice on
instance, in
extraterritorially.
For
apply
Iraqi tort
an attack under
tions of such
(“Ar-
EEOC v. Arabian American Oil Co.
now,
questions
seemed
law? Until
amco”),
far-fetched,
newly
valid con-
but
(1991),
L.Ed.2d
subjects
*24
regime
under a
that
siderations
Act
Rights
that Title VII of the Civil
held
corporations
American
to
lawsuit-averse
extraterritorially to
1964
not apply
of
does
My point
of Iraq.
the substantive tort law
practices of U.S.
regulate
employment
disrespect
Iraqi
law or
is not at all
who
citizens
employers
employ U.S.
feasibility
of
lawyers,
query
but
246-47,
111
1227.
abroad.
Id. at
S.Ct.
legal inquiries into
extensive and uncertain
conclusion, the
relied
reaching this
Court
any
eve or in the execu-
foreign law the
“ leg-
“longstanding principle”
on the
that
military operations.
tion of
contrary in-
Congress,
islation
unless a
of
apply only within
appears,
tent
is meant to
2.
jurisdiction of
the territorial
the United
Al-Quraishi
in
the district court
Unlike
”
(cita-
Id. at
Similarly,
Gregory
Ashcroft,
power
eral
has exclusive
over
L.Ed.2d
S.Ct.
affairs,
foreign
and that states have very
(1991),
judges
the Court concluded that
authority
little
in this area.
In Chae
apply
must
a “plain statement rule” before
States,
Ping
Chan
v. United
upsetting the standard constitutional bal-
(1889),
tirely free curring). 399. 61 S.Ct. we precisely what interference is Such 3. fifty the ascribing states invite here, hardly required are too we So gov tort that their law unexpressed wish state- Department’s Justice defer military operations ern the conduct go cases should forward. ments that these such inter principle against abroad. The us to Department urges the executive even ference holds where tort law claims hold state law not that the state does branch insists if generally preempted contractors foreign power. relations interfere with against the Unit- brought similar claims Miller, instance, Zschernig For come within the FTCA’s ed States would if exception and combatant activities (1968), an struck down Court alleged of the contractor its actions intrusion law as “an Oregon probate scope within the personnel occurred foreign field of affairs which into the State relationship contractual to the entrusts President Constitution if the conduct government, particularly Congress.” Id. personnel contractor occurred while ... States Although “[t]he several integrated with its were traditionally regulated have descent activities. combat-related estates,” the con distribution at 2-3. cluded, Br. of United States give way must if regulations “those of the they impair the effective exercise far, good. so And would think So one foreign policy.” Id. at Nation’s However, would the end of it. that this curiae, the In its amicus S.Ct. 664. brief exception out Department carves stated, gov Department of Justice “The committed where “a contractor has torture ... contend that ernment does 2340,” § in 18 the feder defined U.S.C. application Oregon escheat statute gov al Id. anti-torture statute. at 3. unduly in the of this case circumstances *26 on ernment then elaborates further its conduct interferes with United States’ exception by implying that state- proposed Id. at S.Ct. foreign of relations.” 88 need not available law tort remedies disregarded 664. The Court this state going light forward “in of measures subse ment, reasoning that the state action Congress quently instituted and the might or embarrass “disruption cause Branch, developments and other Executive Department ment” that the Justice failed in Abu Ghraib.” Id. at the aftermath of 434-35, 441, appreciate. to Id. at S.Ct. 88 Department’s brief in 23. Like Justice concurrence, 664. In Stewart was Justice Zschemig, explained this and in vaguely toward statements even less deferential exception explicably derived is entitled from the executive branch: court. the Su As deference reiterated, only recently preme here with allocation of
We deal the basic not de separation powers Na- does power between the States “[T]he encroached-upon pend ... ‘the tion. Resolution of so fundamental on whether ” approves encroachment.’ vary cannot from branch constitutional issue Ac shifting Enteiyrise Fund v. Pub. Co. day day with the winds at Free —Bd., U.S. —, told, Today, counting Oversight we 130 Department. State (2010) 3138, 3155, 177 706 Oregon’s not conflict with L.Ed.2d statute does States, may. New v. United 505 (quoting the national interest. Tomorrow it York
233
Co.,
(4th
L.Ed.2d Potomac Tel.
Cir.1989).
(1992)).
requested
This court
government’s
point
to a
does not
here,
submission of an amicus brief
and I
single expression
congressional intent
appreciative
am
of that submission. How-
tort
support
permitting
state law
claims
ever,
government’s
position
amicus
on
apply
solely
overseas based
the na-
at odds with
own
If
its
conduct.
the gov-
Instead, it
allegations.
ture of the
asserts
ernment
that
believes
there have been con-
“in
the limited
where
circumstances
tractual or criminal
part
violations
allegations
state law claim is based on
contractors,
its own
then it
pro-
should
torture,
that the contractor committed
ceed to
its unquestioned
exercise
contrac-
§
defined
should
U.S.C.
courts
prosecutorial
tual and
authority
go after
strong
take into account the
federal inter-
culpable
party. See
Part II.B.
infra
ests
in that federal law.” Br.
embodied
If it does not believe such violations have
United
at 22.
States
these circum-
occurred,
say
given
should
so. But
stances, the government suggests, “the to-
significance
case,
of this
the exclusive com-
tality of the federal
is different
interests
petence of the federal government in the
require
and does not
that state-law tort
affairs,
field of foreign
principles
and the
suits
preempted.”
contractors be
Aramco, Morrison,
articulated
Id. at 3.
Gregory,
neither
federal executive nor
It
is difficult to see
how
U.S.C.
judiciary
the federal
is entitled to assume
§ 2340—which exhibits an
in pun-
interest
that states
applied
want
their tort
law
ishing
through
torture
criminal
extraterritorially absent a plain statement
federal
any
prosecution
congres-
to the contrary.
—demonstrates
sional interest in permitting torture-based
Here there is no
indication
tort
state
claims.
federal anti-torture
of Virginia
Commonwealth
ap-
intended to
statute,
§
seq.,
U.S.C.
et
does not
assault,
ply its
battery,
laws of
sexual as-
private
even contain
right
action.
sault, intentional and negligent infliction of
event,
And in
courts have no license to
distress,
emotional
negligent hiring
exceptions
create
based on helter-skelter
supervision
to the battlefield conduct
application
statutes,
of federal criminal
ex-
integrated
of contractors
into the wartime
ceptions
permit
preempted
otherwise
military.
activities
abroad
A
go
state tort
claims
forward.
state’s
in employing
regime
interest
a tort
largely
activity
confined to tortious
with-
It is
elemental
a federal court can-
*27
in its own
against
borders or
own citi-
its
simply
not
on
engraft
its
a federal
own
anything
zens. It
Virginia
is
but clear that
criminal
law standard onto state tort
any
has
providing
interest whatsoever in
claims. The federal
is
judiciary
per-
causes of
that
foreign
action
allow
citizens
reconfigure
mitted to
the elements of a
that have
set
never
foot
the Common-
state law
cause
action. For as the
to
its
drag
corporations
wealth
own
into
“[Supreme]
recognized
[Lingle
Court
costly, protracted lawsuits under who-
Inc.,
Norge
Magic Chef,
Division
legal authority.
knows-what
399,
1877,
Virginia
2374,
(2003), the Court
to conduct
fifty
applied
states —can
all
Holocaust
down California’s
Victim
struck
earth.
occurring
every
By
corner of the
Act,
required any
Relief
which
Insurance
go
of action to
allowing plaintiffs’ causes
doing
in the state
dis-
insurer
business
forward,
imprimatur
lends its
in-
close information about Holocaust-era
application of state
to the extraterritorial
401,
at
policies.
surance
Id.
S.Ct.
opinion, I
Reading
majority’s
tort law.
by noting,
began
2374. The Court
launch
my
if
next
state
wonder
friends will
into outer
is ...
that at some
space.
question
tort law
There
no
power
of state
point
exercise
yield
must
foreign
touches
relations
policy,
had
Even if the Commonwealth
some-
National Government’s
applica-
uniformity
given
how intended
extraterritorial
‘concern for
not,
law,
tort
it has
country’s dealings
foreign
tion of its
which
with
nations’
Supreme Court has made clear
state
that animated the Constitution’s alloca-
influencing foreign
laws aimed at
relations
power
tion of the
relations
foreign
cannot stand when
conflict with feder-
place.
in the first
National Government
objectives.
Crosby
al
v. National For-
(citation
at
omit-
Id.
S.Ct. 2374
Council,
eign Trade
120 ted).
In the
Holocaust-era in-
context of
(2000),
2288, 147
L.Ed.2d 352
claims,
Court,
explained
surance
“Cali-
example, the Court invalidated Massa-
seeks to
an iron fist where the
fornia
use
agencies
chusetts law that
state
restricted
consistently
has
chosen kid
President
purchasing goods
from
or services from
gloves.” Id.
B.
injuries even though no provision explicitly
prevents
so);
them from doing
see also
In contrast to the Commonwealth of Vir-
Johnson,
United States v.
681,
481 U.S.
ginia, Congress has a constitutionally pro-
690,
(1987)
107 S.Ct.
Plaintiffs contend that the Federal Tort broad provision definitional does not mean (“FTCA”) Claims Act permits private par- that “contractors ... expressly exclud- bring ties to state law tort suits ed from the FTCA’s reach” in the area of military contractors for Shimari, wartime conduct. battlefield torts. Al 658 F.3d at claim, analyzing J., we must (King, adhere to dissenting). “general For a longstanding presumption that statutory Con- rule usually govern does not un- gress permit private does not parties to rule,” less there is no specific more Green interfere with operations Co., Laundry absent v. Bock Mach.
explicit statutory authorization. “[U]nless
Congress specifically provided (1989), has other- but provision here there is another
236 recognized widely a broad and specifically out of’ speaks that more the FTCA
of
im-
term.
prohibitory
contractors are
whether
to
tort actions.
mune from these
term “com
exception’s
use
is
combatant activi-
That
provision
narrow
not denote a
batant activities” does
govern-
preserves
which
exception,
ties
legisla
a
military operations
but
subset
“[a]ny
immunity against
sovereign
ment’s
entering
to
tort from
prevent
tive intention
activi-
of the combatant
arising
claim
out
encompasses
This term
the battlefield.
forces,
military or naval
or
ties of the
violence,
activities
only physical
but
“not
Guard,
28
during time
war.”
Coast
necessary
and in direct connection
both
to
clues in
2680(j). Multiple
§
textual
U.S.C.
hostilities,”
v. United
with actual
Johnson
Congress
that
want-
exception
this
indicate
(9th Cir.1948),
767,
States, 170
770
F.2d
the battlefield
tort law out of
keep
ed
sweep.
therefore has a considerable
status as a
regardless of a defendant’s
noted,
this
As the
Court has
a contractor.
soldier or
“paint[s] with a far broader
provision
with,
claims
exception
To
bars
start
exceptions
than
FTCA
brush”
other
activities, id.,
“arising out of’ combatant
harms
bar
out of
subset of
arising
suits
among
is
the broadest
phrase
and this
particular
with a
area. See Do
associated
compensation
the law.
workmen’s
“[I]n
Serv.,
481,
489-
lan v. U.S. Postal
instance,
statutes,”
arising-out-of
“[t]he
(2006)
L.Ed.2d
...
familiar
used
to denote
test
one
(contrasting
combatant activities ex
the term of
any causal connection between
2680(b),
§
2680(j)
§in
with
which
ception
employment
injury.”
and the
Saleh v. Ti-
“just
preserves immunity
types
three
(D.C.Cir.2009)
1, 6
Corp.,
tan
580 F.3d
delivery).
of harm” associated with mail
omitted).
(footnote
original)
(emphasis in
language
the broad
of the combatant
Given
Indeed,
in other
phrase
the use
this
exception, it is
difficult
believe
activities
a wide
exceptions
precluded
FTCA
has
Congress wanted the sensibilities of
instance,
range of actions.
For
realities of
govern
tort to
war.
“sweeping
language”
U.S.C.
Indeed, as the District of
Cir-
Columbia
2680(h)
§
preserves
govern-
—which
recognized,
policy
cuit
“the
embodied
sovereign immunity against
ment’s
claims
activities
is sim-
exception
the combatant
“arising
battery”
out of assault [or]
—bars
of tort
the battle-
ply the elimination
from
actions,
only battery
negligence
but
Saleh,
Congress
field.”
580 F.3d
battery”
claims that “stem from a
as well.
the theatre of war from tort law
insulated
Shearer,
United States v.
“recognize[d]
during
war-
because
(1985)
(plu-
87 L.Ed.2d
duty of
care
time encounters no
reasonable
rality
see
Kosak v. United
opinion);
also
whom force is
owed
those
States,
directed as
result of authorized
(1984)
“arising in
(equating
States,
action.” Koohi v. United
2680(c)
§
respect
in 28
of’
U.S.C.
(9th Cir.1992).
In order
“arising
observing
of’
out
“[a]ny
arising
the com-
shield
claim
out of
...
seems
“encompassing phrase
former
military”
batant activities of the
tort
all
exception
injuries
within the
sweep
liability, Congress used some of the broad-
any way
with the ‘detention’
associated
possible
drafting
when
language
est
goods”). Congress
wanted to forbid
It
our role
exception.
is not
to dismember
stemming
tort suits
from combatant activi-
ties,
in order
“[a]ny
arising
it chose in
claim
this exclusion’s text
to determine
*30
2680(a);
§
can
and what extent
arise
ernment.”
torts
U.S.C.
Boyle,
when
511-12,
Here,
all.
combatant activities after
leagues’ rising tide of litigation results of the unpredictable will be both and contradicto-
C. ry, particular juries as and judges debate deferring to and methods Congress’s disagree of valid over which of deten- Instead constitutionally granted interrogation permissible. tion and exercise of its enemy powers, majority places ac- And as detention of the becomes a contractor countability litigious enterprise, in the hands of the unaccount- more the incentives to efforts, lethal un- majority’s capture Thanks to the shortcut with more and able. previously subject that were to manned measures rise. Whether or contractors judi- approves transplanting of the executive have new not one of the deli- the control cacy judicial But judges etiquette cial masters. when unelected and branch decisions into of war is not the question. render contestable about theatre policy applying presage in the course of tort law to These lawsuits a massive transfer contractors, will public authority political be unable to reserved to posts. them I and remove them from This flies branches under Articles II of our hands, judicial the face of our constitutional tradition of Constitution into to a and single ensuring popular judge jury control over the trial and to boot. This is some prosecution subject As expect of a war. one would Congress “[Mjatters detail, explained, great Court has of war- address in and meticulous has, making belong example, Military of those who it in the hands Com- 111-84, politically are ... most accountable for missions Act of Pub.L. Rumsfeld, 2190, 2574-614, Military Hamdi v. making them.” Stat. Commis- 109-366, L.Ed.2d sions Act Pub.L. (2004) opinion). (plurality Stat. and the Detainee Treatment 109-148, Act of Pub.L. 119 Stat. law, No one will contend that how- tort I take issue respectfully defined, ever derived and is a field excel- manner in which gravity matter-of-fact vagueness in- ling precision. acknowledged taken is not even step determinacy these cut-and-paste causes by the majority, much less addressed. judicial permit action will discretion variability govern By to the jury opening this most sensi- the door extraterrito- application must rial state tive of areas. Courts henceforth set of different tort re- gimes, of care of war- allows unlimited the standards matters detentions, variation in of care that captures, interroga- time the standard damages applied combatant tions as well as measure of to critical activities. widely agreed upon stan- the field while There is not a sions we sit here in Maryland Virginia for overseas detentions and or or dard care whatever other interrogations, doing “ironing.” and different states will al- venue is go low causes of action to for- different By dismissing appeals, majori- apply ward different standards to and will ty only dawdles, drifts and sparing itself *32 if agreed them. there were an Amd even grips issues, the need to come to with par- is upon standard —which there not— kicking and the can far down road. juries apply ticular and that judges would The to that recognize fails this is a inconsistently. standard Such standard urgency. a matter of some for start- Just would bottom some ver- probably out on ers, in the commanders field need action- sion But in the context of reasonableness. intelligence able in order battlefield for what exact- interrogation, of detention and to have soldiers survive. Few wars been ly That ques- does reasonableness mean? prosecuted successfully or will be without answers, provoke tion could innumerable intelligence permits plan to that units ac- vagueness formula- very and the of tort forces, against curate enemy strikes and tions as to the standard of care means that every importantly, bit as to know when will jurors setting civilian be the standards lethal force plotted Americans military of interrogation detention and themselves. intelligence Actionable has al- of knowledge detainees without conditions ways had both offensive and defensive val- halfway that obtain in zone of combat words, ue. In other intelligence I globe. imply disrespect across the no of us prevailing; assists it saves American jurors of give good who their time and lives. system justice, sense to our of but this legitimate While there is debate about system provide guidance will no and no obtained, how is best intelligence a tort predictability whatsoever it will because probably very suit is forum in worst leave of military the conduct functions to which that issue can or should be resolved. litigious hindsight. the fortuities of juries judges The who review those can forgiven Contractors be for not fairly expected pos matters cannot be wanting employees to entrust background utility sess a in the of different vagaries caprice of individual verdicts military intelligence, forms of and to ask prospect and trials. Add to that delicate, sensitive, them to decide such punitive damages and uncertain other word, is, complicated questions in a unreal recovery, will measures of and one intro- istic. v. Kellogg, See Carmichael Brown & interrogation duce into the detention and Inc., Servs., Root 572 F.3d 1286-87 process a of risk degree aversion that (11th Cir.2009) (explaining military that gathering could well in the result as traditionally intelligence-gathering is insu intelligence possible. little vital While review); judicial lated from States United may interrogations some regard reduced Hung, Truong Dink 913- satisfaction, with those whose lives and (4th Cir.1980) (noting “the that courts upon acquisition depend fortunes in diplomacy unschooled likely join any vital are not intelligence affairs, mastery of which would be essen approval. chorus of upon” passing tial matters intelli course, response undoubtedly say, this is to majority’s gence). None of questions “ir- all these remain contractors are without fault such go oned out.” But words are small com- or abuses should ever unremedied. simply point fort to must critical deci- It is to make the some- those who make Cir.2008). (5th Department placement of as the thing as mischievous 170,000 mili- around “employs of Defense should be military calculations law in tort basis, having yearly tary contractors on appreci- body capable of by some approved contracting than doubled its use and more of its action consequences ating the Groth, Lauren since 2001.” the task. services constitutionally entrusted Proposal A Accountability: Transforming Rights Human Ob- Reconsidering how II. Military to Private ligations Applied Are A. Firms, Comp. Int’l Hastings & Security (2012). 29, 38 L.Rev. upon focus present suits While mili- necessary, and conditions of interrogation being Apart methods of *33 detention, larger private enterprise even than tary’s partnership the issue is with a assuming salutary tort suits are as well. For one aspects that. In has military the contrac- policing thing, permits method of our all-volunteer preferred military operations, in a cost-effi- troop shortages assist tors who to handle Army that there exists According the fact to the majority obscures cient manner. “[rjecent remedy Manual, in this area. In the in mili- a reductions proper more Field contrary expression by structure, coupled high of some with mission tary absence precepts of unlikely prospect the most basic of Congress, requirements mobilization, that the al- a powers require mean that to reach separation full military support, contractors must leged required abuses of minimum of levels of through the medium of con- often have to military be addressed forces will deployed short, tract, through tort. without contractor significantly augmented not be congres- I Army, a manifestation of Article Field support.” Dep’t clear intent, 3-100.21, II that con- sional Article mandates on the Bat- Manual Contractors tractual, remedies, (2003). utilized. not tort Because of these tlefield Preface military, in our “the future battle- changes government, including It a truism require increasing ever numbers field will Few, any, if military, must contract. contractor em- critically important of often today are undertaken governmental tasks ployees.” Id. public-private part without form of some the mili- partnerships These also allow nership. government The federal routine tary pool and its contractors to their re- public functions ly carries out sensitive entities, bring the best of running spective expertise through private checks, private industry to bear public States v. service and background see United (4th Cir.1998), mission at hand. This reliance F.3d on the Virginia, 139 will become expertise contractor rehabilitating prisoners, see Corr. Servs. Malesko, necessary as warfare becomes more 63 n. 122 more Corp. v. Army 515, 151 (2001), technologically demanding. As the to inves L.Ed.2d 456 notes, increasingly hi- Manual “the activity, criminal see States Field tigating United (6th Warshak, ... equipment [has] tech nature of our 631 F.3d Cir. 2010). proper- the need to operations significantly increased Assisting with combat into all ly integrate support contractor “ample There is evidence no different. military Id. War is not operations.” finds the use of civilian that the military will enterprise, and our roles to be an es static support contractors every edge technologi- war-time need bit component sential successful Halliburton, to face the expertise cal affords order mission.” Lane v. Only instance, hostilities of the future. the clueless ment. For could promi- believe future battlefields will direct contractors to “adhere to nently private feature contractors. the standards of by conduct established operational or unit commander.” See
B. Ibrahim v. Titan Corp., F.Supp.2d (D.D.C.2007) (internal quotation mark and realities, illusory Given these it is omitted). citation Focusing govern- on the pretend that these simply suits are ordi- ment’s contract rather than theories of tort nary private party tort actions one would also ensure that important federal Instead, against another. because con- interests were not “left to vagaries regularly type tractors assist in “the States,” laws the several but instead governmental action that was intended “governed by uniform rules” the con- political Constitution to be left to the tracts Green, themselves. Carlson v. directly branches ... responsible to the 14, 23, electoral process,” Gilligan Morgan, see (1980). majority, however, appears to 37 L.Ed.2d prefer judicial supervision through mallea- (1973), respect separa- decent for the multiple ble and tort standards to execu- powers compels tion of tous consider what control through tive clearer and more con- *34 remedy sort of would best ensure the au- sistent contractual provisions. thority of the executive over those with partners whom it in carrying out what are Contract law gives also the executive branch, core executive functions. The answer is party contract, as to the the op- tort, obvious. Unlike contract gives law portunity pursue a variety of remedies. the executive branch a mechanism of con- In being addition to able to sue a contrac- trol regularly over those who breach, assist the tor in the event of a the executive military in performing its mission. can create more tailored sanctions in the terms of the contract govern- itself. The thing, For one contract law is a more ment, for example, could contractually re- textually law, precise field than tort allow- right serve the to demand that its contrac- ing the executive branch to set the stan- tor ... any “remove employee for reasons in dard of care the terms of the contract. misconduct,” Ibrahim, see In contrast to tort suits in judges which (omission F.Supp.2d at 7 in original), would have to decide what constitutes a thereby allowing jettison it to bad apples “reasonable bombing,” McMahon v. Presi- without jeopardizing an military entire op- Inc., Airways, dential 502 F.3d eration. (11th Cir.2007), “prudent intercept,” Tif- States, fany v. United These contractual tools are not the (4th Cir.1991), legitimate or a interroga- ones available to the executive branch. method, tion contract cases turn They would augmented by regula- web of more language definite in the contract it- tions to which subject contractors them- language that policy reflected the by selves partnering military. with the self— of a democratically choices Army accountable Regulations, example, permit branch. rely judicial Rather than on the “apprehend commanders to and detain application of some indeterminate stan- contractors for violations of the law” as care, dard of reasonable the executive well as “restrict or revoke ... access to branch require could contractors to abide Army facilities or installations for disci- military well-established rules and man- plinary Army Reg. infractions.” 715-9 4-2(e). uals the terms of agree- more, § its contractual What sum, silly to think that without it is against con- military sanctions pursue
can
suits,
simply
will
under
tort
contractors
misconduct
tractors for battlefield
8Q2(a)(10),
unsuper
§
zones
UCMJ,
wandering around war
see 10 U.S.C.
punishments
criminal
chain of command does
as domestic
vised. What the
well
officers,
crimes committed
contractors for
contract law does for
3261(a)(1).
abroad,
§
Just
Army
see 18 U.S.C.
Field
military contractors. As
circuit,
States v.
United
notes,
within
com
military chain of
Manual
“The
(4th Cir.2009),
Passaro,
F.3d 207
control
management
exercises
mand
contractor” was convicted
“paramilitary
Dep’t of the
the contract.” U.S.
through
out
charges arising
federal assault
Manual,
§ 1-25.
Army,
supra,
Field
in Af-
a detainee
interrogation
lethal
contractors
military oversight “[Pjroper
gov-
at 210-12.
ghanistan. See id.
integrating
private
imperative”
employed
prosecutorial
has
its
ernment
1-23,
§
military operations, id.
actors into
rogue interrogators
powers
punish
goal ways
and contract law achieves this
why it
past, and I see little reason
con
though
cannot. Even
tort
law
sanctions
would forswear the use of such
formally
oper
“part
tractors are not
Saleh,
F.3d at
in the future. See
command,” they are “man
ational chain of
of the events at
(noting that
the wake
with the terms and
aged
accordance
Ghraib,
executive branch obtained
Abu
through
of their contract”
conditions
in-
convictions of a number of soldiers
Representative, who
Contracting Officer
investiga-
pursued
volved and
“extensive
operational
commander’s
“serves as
allegations
into
of abuse
contrac-
tions”
Army Reg. 715-9
primary oversight.”
tors).
1(c)—(d).Thus,
§
law
contract
ensures
4 —
tools,
combined with contractual
When
“subject mili
that these contractors are
*35
provide
laws
the executive branch
direction,
subject
if
to nor
tary
even
not
from
ranging
with an
of remedies
arsenal
Saleh, 580 F.3d
military discipline.”
mal
specific
removal of a
contractor to criminal
words,
“the Government’s
7.
other
requires
The executive
“a
punishment.
managing
opera
...
its
authority
broad
area of nation-
degree of discretion”
turn
“contract
tions does not
on” whether
v.
security,
al
see United States
Curtiss-
in
employees” or “civil servants” are
304, 320, 57
Wright Export Corp., 299 U.S.
—
Nelson,
U.S. —,
volved. NASA
(1936),
216,
L.Ed. 255
and this
S.Ct.
758-59,
178 L.Ed.2d
S.Ct.
gives
appropri-
of sanctions
it an
selection
(2011) (citation omitted).
mil-
flexibility.
ate amount of
Because the
law, however,
Tort
conflicts with rather
bound,
itary
tightly
and its contractors are
complements
than
these contractual mech-
subjects
litigation in federal court often
by “interfering]
of control
with the
anisms
judicial process.
Unlike tort suits
both
authority
punish
government’s
federal
instigated
private parties,
at the behest of
by its own contrac-
and deter misconduct
per-
contractual and criminal enforcement
Saleh,
at 8. The
tors.” See
580 F.3d
protect military
the executive to
com-
mits
majority’s
of common law reme-
allocation
being “un-
manders and contractors from
just
a matter of
paradoxically
dies is
necessarily
dangerously
distracted
concerning
It
common law.
is
decision
litigation
away”
pre-
half a world
and to
will control
which branch of
military operations”
“discovery
vent
into
that assist our soldiers on
the contractors
“intruding]
from
on the sensitive secrets
Hamdi,
Whereas contract
542 U.S.
the battlefield.
of national defense.” See
accountabili-
(plurality opinion).
places
criminal law
contractor
S.Ct. 2633
II
ty
places
where Article
it—in the hands
private contractors,
have on
supra
see
I,
places
of the executive—tort law
it in the Part
I
but
fear that
majority’s
ef
forts
judiciary.
discourage
hands of the
But the
will
the government
executive
partnering
private
with
judicial
industry
not the
responsi-
branch —and
as well.
—is
Congress might well think
overseeing
ble for
a war effort
the defense
under the
budget large enough without courts
add
Constitution. Whereas
President
ing
prospect
of uncertain tort liabili
required as Commander
Chief “to take
By
ties.
increasing through prospective
responsible
continuing
supe-
action to
tort suits the costs of employing contrac
military,” Loving
rintend the
v. United
battlefield,
tors
inter
States,
feres with the executive
capacity
branch’s
(1996),
we
judges
are
carry
out its constitutional duties. To
given
running
“not
the task of
Army.”
Department
Defense
in an era of cost
Willoughby,
Orloff
consciousness, the threat of tort
liability
(1953).
S.Ct.
C. T, tractual commitments to a for there bottom, majority’s At facilitation of exists no assurance that the standard of tort remedies willingness chills the of both care in subsequent embraced tort suits contractors and the incorporate by will reference or otherwise contract. I previously have discussed meeting the criterion of one’s contractual chilling today’s effect obligations. decision will premised order doctrine is The collateral re doctrine separation-of-powers
“[T]he
eminently
conclusion
reasonable
impair another
a branch not
quires that
recog-
immunities
constitutional
from suit should
its
performance
later,
757, 116
than
because the
517 U.S.
rather
Loving,
nized sooner
duties.”
precisely
every
that.
Today’s decision does
can often be
bit
“rigors of trial”
capacity
practical
judgment. Digi-
Government’s
as an adverse
damaging
“[T]he
Inc.,
sover
Direct,
“the essence of
contracts” is
Desktop
make
Corp. v.
Equip.
tal
Winstar,
States
eignty
itself.” United
114 S.Ct.
511 U.S.
(1994).
Indeed, the “crucial
L.Ed.2d 842
(1996) (internal quotation
L.Ed.2d 964
tried
right
a
not to be
between
distinction
omitted). By making
mark and citation
remedy requires
...
whose
right
and a
govern
the essence
the contract
immunity in
is whether
dismissal”
we diminish
partnership,
ment-contractor
very
be eviscerated
question would
to erode
adversaries
of our
capacity
v. Hol-
litigation.
United States
process
sover
of our national
aspect
this critical
Co.,
Motor Car
lywood
Conversely, by
through litigation.
eignty
(1982).
3081,
Domestically, this sort of ranging “broad “as broadly as possibly [it] discovery and the deposing of numerous could.” ... persons peculiarly can be disruptive of government.”
effective
Fitzger-
Harlow v.
quite
This
plainly is the stuff of immuni-
ald,
800, 817,
73 ty,
just
some affirmative defense. De-
(1982).
L.Ed.2d 396
It carries the risks of
spite
explicit
Court’s
admoni-
govern-
“distraction of officials from their
tion
contrary,
to the
parties
both
frankly
duties,
mental
inhibition of discretionary
seek
“require
members of the Armed
action, and deterrence
people
of able
from Services” and their
testify
contractors “to
public service.” Id. at
ence with occasion, interest. to resolve. public and the and the Commander-in-Chief ty would conclusion, its reaching In analysis recog- or to undertake
fails
I
interest
nize the substantial
immunities, an interest
underlying
force,
led
a multi-national
in the common law.
deep roots
Britain, in-
the United States and Great
war,
Iraq. During the course of the
vaded
collateral
important,
ever were
If there
*42
Iraqi
military seized and detained
under
the U.S.
qualify
that would
Cohen
decisions
decisions,
suspected
being enemy
final
the district
combat-
reviewable
citizens
immunity in these cases
denials of
thought
possessing
courts’
ants or
to have value
The defendants
are such decisions.
intelligence regarding
insurgen-
useful
mili-
engaged by the U.S.
these cases were
cy
other terrorist activities. These de-
or
tary
conducting interrogations
to assist
imprisoned
were
in Abu Ghraib
tainees
under the command and control
Iraq.
prison
prisons throughout
and other
and the decisions about
personnel,
by
Although
prisons
operated
were
interroga-
nature of these
scope
and
zone,
Army in an active war
“a
the U.S.
part
military’s
integral
tions were an
military intelligence
shortage”
severe
Moreover,
military desper-
interests.
“prompt[ed]
govern-
the U.S.
personnel
ately needed to receive contractor assis-
corporations
private
ment to contract with
interrogations
in its
because of a
tance
inter-
provide
interrogators
civilian
and
Thus,
shortage
personnel.
substantial
These contractors in-
preters.”
J.A. 408.
major compo-
were a
interrogations
Inc.,
Technology,
Premier
cluded CACI
effort,
designed
gather
nent of the war
(col-
International,
subsidiary of CACI
Inc.
strong
military intelligence.
public
These
“CACI”)
herein,
Corpo-
Titan
lectively
and
interests merit our consideration of the
(“L-3”).
ration,
Services,
now L-3
Inc.
by
common law immunities claimed
federal
required
comply
CACI and L-3 were
protection
civil
the defendants as
Department
interrogation
of Defense
any potential
liability
and from
civil
suit
conducting
policies
procedures
and
when
under state tort law.
interrogations,
de-
“[ijntelligence
detainee
jurisdiction
appellate
Because we have
briefings,
questioning”
per-
and tactical
all of the
of immu-
to address one or
forms
military.
custody
sons
of the U.S.
defendants,
would,
nity
by
claimed
we
Secretary
J.A. 270-71.
of Defense Donald
outset,
required
at the
to decide our
Congress
Rumsfeld testified before
jurisdiction.
subject matter
See Steel Co.
linguists
interrogators provided
and
Env’t,
v.
a Better
523
Citizens
“responsi-
contractors at Abu
were
Ghraib
(1998).
1003, 140
L.Ed.2d 210
military intelligence] personnel
ble to [the
jurisdiction,
considering
When
our
responsibility
who
them and
hire[d]
ha[d]
we,
as well as the district
apparent
Hearing of the
supervising
them.”
courts,
authority
lack
under Article III to U.S. Senate Committee on Armed Services
they present
entertain the actions because
2004).
Secretary of the
(May
Acting
nonjusticiable political question.
also
that ci-
Army Les Brownlee
testified
interrogators
linguists
“work[ed]
vilian
ap-
I would
Accordingly,
dismiss these
of officers or non-
supervision
under the
peals and remand them with orders to
charge
of whatev-
nonjusticiable
commissioned officers
dismiss the cases as
at-
they
or unit
are on.” Id.
tempts
engage
judiciary
questions
er team
(E.D.Ya.2009); Al-Quraishi
Nakhla,
in these two actions are
plaintiffs
(D.Md.2010).
F.Supp.2d
who were seized and detained
individuals
prison
at Abu Ghraib
by the
The defendants filed motions to dismiss
military-controlled prisons “during a
other
pursuant
all of the claims
to Federal Rules
and “in connec-
period of armed conflict”
12(b)(1)
12(b)(6),
of Civil Procedure
tion with hostilities.” Second Amended
(1)
alleging that the
nonjustici
claims were
¶
(Al-Quraishi);
Compl. (“Complaint”) 497
they
able
presented
political
because
Compl. (“Complaint”)
Second Amended
question, relying
Tiffany
v. United
¶
(Al Shimari).
complaints,
their
States,
(4th
(2)
Cir.1991);
The
purport
state causes
the district courts should have dismissed
of action under various state-defined torts
the claims on the basis of the
Statute, naming
and under the Alien Tort
contractor
recognized
defense
in Saleh.
CACI, L-3,
as defendants
Nakh
Adel
Al-Quraishi
Servs., Inc.,
v. L-3
la,
L-3,
employee
individual
(4th Cir.2011);
201
Al
Shimari
CACI
compensatory damages
demand
(4th Cir.2011).
Int’l, Inc.,
appealable orders
U.S.C.
(internal
omitted).
1992)
citation
114 S.Ct.
litigation
proceed
allows the
and thus
Thus,
final,
order,
appealable
be a
courts.
district
satisfy
require-
collateral order must
three
(1)
“conclusively
II
ments:
it must
determine
(2)
disputed
it
“re-
question”;
must
28, authorizing “ap
Title
1291 of
Section
important
completely sepa-
solve an
issue
all final decisions of the district
peals from
action”;
rate from the merits of
States,”
codifies
courts of the United
(3)
“effectively
unreviewable on
must be
rule,” representing “Con
judgment
“final
judgment.”
a final
Johnson v.
appeal from
Judiciary
since the
gress’ determination
Jones,
304, 310,
2151,
115
515 U.S.
S.Ct.
general
‘appel
Act
that as
rule
of 1789
(internal
(1995)
quotation
... until
postponed
late review should
omitted).
marks
judgment
after
has been rendered
final
”
court.’ Kerr U.S. Dist. Ct.
trial
has noted that the
Supreme Court
Cal.,
the N. Dist.
is of
“collateral
doctrine”
“modest
order
(1976)
(quoting
L.Ed.2d 725
S.Ct.
Hallock,
scope,”
States,
Will v. United
applied
and should not be
“to swallow
(1967)). Thus,
L.Ed.2d 305
S.Ct.
general
party
rule that a
is entitled to
“the
emphasized
Court has
Indus.,
single
appeal,” Mohawk
general
party
that a
is entitled to a
rule
Digital Equip.,
at 605
(quoting
single
to be deferred until final
appeal,
1992).
But,
equally impor
*44
In
judgment has been entered.” Mohawk
tant, the
has noted that the doctrine
— U.S. —,
Carpenter,
dus. v.
130 S.Ct.
necessary
appropriate
in
cases
(2009)
599, 605,
(quoting
253
(1993)
684,
139,
by
121
605
tained
the U.S.
to perform
L.Ed.2d
(Eleventh
immunity); Osborn interrogation
Amendment
and translation
services
881,
127
166
Haley,
549 U.S.
S.Ct.
interrogation
of military detainees in
(2007) (Westfall
L.Ed.2d 819
Act
military prisons throughout
Iraqi
war
certification); Republic
Iraq
Beaty,
(Al-
¶¶8,
Complaint
zone.
¶¶
173 L.Ed.2d
(Al
Quraishi);
Complaint
Shi-
(2009) (foreign sovereign immunity);
). Indeed,
mari
complaints
assert that
India to the
Permanent Mission
United the
functioning
defendants were
on behalf
York,
v. City
Nations
New
in conspiracy
(2007)
military personnel “during
period
Mullins,
(same); Roberson v.
In this the defendants sovereign immunity,” immunities, explaining derivative among other abso- derivative that “the contract [the between immunity carry- contractor] lute based on their role in military’s before the Court ing out the U.S. mission time,” making impossible this to “deter- Iraq war zone under the ultimate direction scope of military. alleged control of As both the the contract and mine] complaints, scope re- whether that was exceeded.” Al- the defendants were 254 702, Nakhla, the con- significant part on whether
Quraishi
F.Supp.2d
v.
728
(D.Md.2010).
acting within the
tractor involved was
scope
agreement
of its
with the United
Thus,
opinions take the
both of these
hardly
to an-
begin
States. One could
plaintiffs
in their
alleged
facts as
question
without resort to
swer
and conclude that the
complaints as true
appellants
and all contracts between the
to derivative
defendants were not entitled
government pertinent
and the
immunity.
claims, defenses, and related matters be-
Supreme
precedents
Court’s
As both
low.
establish,
clearly
when
precedents
and our
Ante,
Thus,
majority
at 220.
con
grant
an immu-
a district court refuses
cludes that because the district courts def
of the facts
nity from suit on
basis
ruling
immunity
erred
until
derivative
complaint,
in a
the refusals are
alleged
developed,
the record was more
their deci
immediately
appealable. Whether
lack finality
require
sions
and fail the
decided, we have
rightly
wrongly
are
or
Hallock,
349-50,
ments of
546 U.S. at
jurisdiction
rulings
pro-
to review such
952,
S.Ct.
that collateral orders be conclu
tect
the defendants from the costs and
sively determined.
litigation,
distraction of
which undermine
gov-
public
protecting
however,
interest
majority
recognize,
fails to
interroga-
ernmental function of war zone
contrary
that its conclusions are
to well-
The district courts’ refusals to rec-
tions.
established
and Fourth
ognize
immunity
undoubtedly
can
precedents
Circuit
the district
immediately appealed under the collateral
in refusing
grant
courts’ decisions
im-
Iqbal,
order doctrine. See
556 munity on motions to dismiss based on
Ashcroft
1937,
12(b)(1)
12(b)(6)
S.Ct.
courts each
that
immunity]
granted,
of
is
denial
a motion
”
immunity] depended
such invocations
right
[of
to dismiss is conclusive as to this
them,”
added)).
though
viewed
even
factual
court
As the Behrens Court
(emphasis
remained).
stage of a
issues
noted, at the motion-to-dismiss
conduct
the defendant’s
“it is
proceeding,
McVey,
157 F.3d at
we
Again,
scruti-
complaint that is
in the
alleged
concluded that we
applied Behrens and
Behrens,
at
nized.”
qualified
jurisdiction
had
over
denial
added);
see also
(emphasis
immunity
though
“recognized
even
we
that
511, 529 n.
Forsyth, 472 U.S.
Mitchell v.
essentially
court’s order
defer-
the district
(1985)
86 L.Ed.2d
ruling
qualified immunity
a
would
ring
(“[W]e
that
point
at this
emphasize
blush, to amount to a rou-
appear, at first
purely legal
is a
one:
issue
appealable
generally
that
not
procedural
tine
order
is
a
alleged
support
...
whether the facts
As we reasoned:
appealable.”
clearly
established
of violation
claim
“at
rejecting
immunity
defense
[I]n
added)).
(emphasis
law”
early stage,” the district court nec-
subjected the commissioners to
essarily
recently,
Iqbal,
More
procedures
further trial
princi-
the burden of
Behrens
its
reaffirmed
discovery,
unnecessarily.
rejecting
perhaps
“a
court’s order
ple that
district
implicitly
district
order
immunity
[The
court’s]
at
the motion-to-dis-
qualified
...
is a ‘final de-
ruled
the commissioners on
proceeding
of a
stage
miss
§
meaning
legal questions....
questions
1291.”
These
do
cision’ within
questions concerning
257 Halliburton, government of investigation procurement See Martin v. “colorable.” (5th Cir.2010). at practices. 484 77 F.3d F.3d 1447-48. however, court, not decide the did Martin recently, the Supreme And Court has case, today. regu- In that issue us before the need to protect reaffirmed those who explicitly the governing contractor lations perform government junctions immu “[ejontractors used will not be stated that nity regardless they public are whether inherently governmental func- to perform officers, such as or employees, preclude[d] Defen- “expressly tions” and private individuals the perform retained to from engaging dant discre- [contractors] —Delia, function. See Filarsky same v. conduct,” which tionary prerequisite was a —, at finding immunity. derivative See id. (2012) (“[T]he law L.Ed.2d common Thus, language regulations 484. public not draw a did distinction between made the defendants’ conten- themselves private engaged servants and individuals per- had engaged tions that public according service protection governmental functions frivo- formance of carrying government responsibil those out unsubstantial. lous and ities”). Mangold decision in and its Under our this, majority disputes But the never nor argument can be no progeny, there serious why allegations even discusses that, the defen complaint, based on present only and un- complaint a frivolous present in these cases failed to a dants immunity. substantial claim to derivative immunity. basis for the See substantial Instead, it frames the dispositive question (holding 77 F.3d Mangold, finality. majori- doing, as one of so government junctions performed by pri ty ignores fundamental and well-estab- immuni protected by vate contractors principle that a court’s deni- lished district ty con both for the and the al a motion to on an dismiss based tractor); Murray Northrop see also immunity final, immediately is from suit Tech., Inc., Grumman F.3d Info. collateral dis- appealable order. Whether (2d Cir.2006) (government contractor covery help could make the issue more liability immune from absolutely tort or whether the courts wanted clear district performing governmental eontracted-for ruling fuller record before on the merits function, citing Mangold); Pani v. Em immunity is irrelevant. The defendants Shield, pire Blue Cross Blue to be protected claim entitlement (2d Cir.1998) from (same); Psy 71-73 Midland litigation process, the court’s refusal Assocs., States, Inc. chiatric United immunity grant denied them (8th Cir.1998) (common 1000, 1005 F.3d protection appealable and was therefore an immunity tort suit law official barred Behrens, Mitchell, Iqbal, decision under insurer). immunity Medicare This Jenkins, Winfield, and It most McVey. protects contractors suit where such readily regrettable majority so immunity a dis necessary protect an tramples precedents, on these which clear- cretionary government function and the ly appellate jurisdiction us with provide immunity costs. outweigh benefits of its stage proceedings to consider Mangold, example, in we held that For claims assert- the substantial jus in efficient government” “the interest immu ed the defendants on the basis of granting private contractor tified alleged in the nity during complaint.1 for statements made official facts relating inexplicably arguments Stat- also dismisses L- to the Alien Tort 3's *49 Immunity- B. Combatant Again, response Activities to allegations the under Saleh plaintiffs’ complaints, the defendants immunity claimed that is based on The defendants also asserted an immu interests, the United States’ as embodied nity from suit based on the combatant exception the combatant activities and exception activities to the Federal Tort applied as immunity, Saleh. Under this Claims Act and the applica D.C. Circuit’s when claims arise out of federal combatant immunity tion of that in Saleh v. Titan activities, the federal preempt interests Corp., (D.C.Cir.2009), 580 F.3d cert. de —nied, application of —, state tort law to its contrac- (2011). replace tors and then state tort immunity, L.Ed.2d 886 This law with ap law, plied contractors, to federal recognizes common which based on immunity United States’ for sovereign immunity against claims contractors arising claims out of arising combatant out of activities combatant activities. The military during time of war. See 28 United States’ interest in its contractors’ § 2680(j). U.S.C. performance in the course of combatant footnote, claiming they must, ute in a Sanchez-Espinoza, that deserve plaintiffs to main analysis no different claims, than do the state law tain allege their ATS that the actions Ante, claims. at 223-24 n. 19. But in so of the defendants were actions of United concluding, recognize fails to jurisdictional necessity. States as a See Kad plaintiffs' claims, that Alien Tort Statute Karadzic, (2d ic v. 70 F.3d Cir. jurisdictional necessity, allegations include 1995) ("[T]orture summary execution allegedly that the defendants' abusive conduct proscribed by ... are only international law was the conduct the United States and by when committed state officials or under therefore claim immunity of derivative law”). jurisdiction color of To establish would have to be substantial as a matter of crimes,” alleging their ATS claims "war law. plaintiffs very allege must least that Although the district court in Al Shimari "parties” the defendants in this case were plaintiffs’ dismissed the claims under id., Iraq, hostilities in have to ATS, Al-Quraishi the district court in failed demonstrate state action as well if the court dismiss the ATS claims L-3 and considered war crimes to violate internation employee. its L-3 appeal contends on that al norms to the extent were com the denial of its motion to dismiss the ATS actors, by mitted combatants or state see claims on account immunity, of derivative Alvarez-Machain, Sosa v. 731- defenses, among other was an error. L-3’s (2004); claim derivative absolute in the Libyan Republic, Tel-Oren v. Arab 726 F.2d ATS context undeniably is thus "substantial.” (D.C.Cir.1984) (Edwards, J„ 791-95 Sanchez-Espinoza Reagan, concurring). (D.C.Cir.1985), plaintiffs alleged that de- Thus, the defendants' claims to derivative fendants had violated the law by of nations Al-Quraishi immunity as to the ATS claims in execution, murder, engaging "summary obviously plaintiffs substantial because abduction, torture, rape, wounding, and the allege jurisdictional must necessity as a either private property destruction of public fa- state action or cilities,” "par- defendants were part as conspiracy arising of a out ties” Iraq. armed conflict in Both alle- government's of the U.S. actions in Nicara- gations weight add further to the gua. contention Id. opinion at 205. In a unanimous that the performing defendants were a state then-Judge joined authored Scalia and function and then-Judge thus entitled to the Ginsburg, same immu- the D.C. Circuit found public nities performing afforded officials mockery "[i]t would make a of the doc- sovereign Filarsky, trine of function. immunity” permit See 1663. I proceed ATS claims to therefore fail based on to understand how "actions these defens- are, concededly jurisdictional es can be dismissed as so insubstantial and necessity, official actions of jurisdiction United frivolous that we lack even to States.” Id. at 207. allegations Like the entertain them. *50 the issue is observation that im- uniquely out of federal cords grows activities statutory “derives from an munity explicit of operation in the unencumbered interest guarantee or constructive trial will and in the “elimination military personnel (internal quotation occur” marks omit- not to battlefield, both tort from ted), Boyle, and that “from which Saleh fed- foreign regulation or preempt state derived, rely] not on preemption [did military conduct to free eral wartime and Ante, explicit guarantee.” any such at from the and uncer- commanders doubts majority’s opinion, however, 217. The nei- potential subjection tainty inherent actually considers what held in ther Saleh Saleh, (emphasis 580 at 7 civil suit.” F.3d assertion, prove analyzes its order nor added). policies the combatant “[T]he excep- the text of the combatant activities implicated exception equally activities unique and the interests it tion federal alleged tortfeasor is a soldier whether Moreover, assumes, embodies. it without ac- engaging in combatant or a contractor analysis, Boyle and are identi- Saleh the behest of the and tivities at purposes of cal for its collateral order military’s poli- Id. The under the control.” analysis. can protect interests cy jurisdiction Surely our to consider the preserved and if the defense furthered depend courts’ district orders cannot potential lawsuits protects such as wholly “preemption” on labels law, not brought under civilian tort Nonetheless, “immunity.” if a vote on la- liability. ultimate simply against critical, majority would bels were have courts the claimed The district denied support, as virtually every little court Al-Quraishi The court in re immunities. government has considered contractor recognize unique federal inter fused to set forth it Boyle defense takes as in the activities ests embodied combatant two-step immunity. leading defense Al-Quraishi, at F.Supp.2d exception. step, preempts Under the first the court the court in sim 738-39. And Al Shimari law, second, it state tort under the rejected the defense to these defen ply as recognizes pro- the federal common law conclusory Al dants manner. Shi immunity to such viding contractors. See mari, F.Supp.2d at Both courts 725. Breaches, Canal In re Katrina F.3d thus held that defendants were entitled Cir.2010) (5th (characterizing displacement of state tort to neither recognized Boyle “govern- defense common application law nor the of federal In re immunity”); ment contractor World immunizing them suit. law from Disaster 521 F.3d Litig., Trade Ctr. Site majority now also to review refuses (2d Cir.2008) (“In Boyle, orders, denying court thus these district requirements type Court refined the for a activities the defendants combatant immunity government derivative immunity. mainly by relying It does so added)); (emphasis contractors” It unexplored labeling problem. on an Bank, Ltd., United States v. Swiss Am. (1st eonelusorily, preemption Cir.1999) (“[T]he “Boyle states 30, 44 n. 6 191 F.3d is, (and, thus, preemption) ipso Saleh [Boyle] terminology Court used the fac- Ante, to, And immunity.” at 217. ‘preemp- of state ‘displacement law’ and reliance, its again, repeating labeling determining tion’ in whether federal law declares, squarely preemption provide government “Saleh falls contractors should liability being immunity the side defense certain state-law Ante, immunity product liability (emphasis not an from suit.” actions” add- ed)); ac- only analysis Winters Diamond Shamrock Co., (5th Boyle, these cases. In Cir.
Chem.
1998) (“The Supreme
“displacement”
Court set out the
referred to the
of state law
law,
under the
with federal common
test
added),
Boyle”
(emphasis
(emphasis
defense
with federal
odology to circumstances identical to those
common
scribes the content of the federal
concluded
us. Thus the Saleh court
before
defense, look-
government
law
contractor
the combatant ac-
Congress
that
intended
discretionary
purpose
to the
ing for
...
exception to
tort
“eliminat[e]
tivities
exception
function
the FTCA.
battlefield,
preempt
state
from the
both
case, however,
regulation of federal wartime
foreign
not involve the
or
This
does
and to free
commanders
recognized
contractor defense
conduct
government
uncertainty
from the doubts and
inherent
rather a defense based on the
Boyle,
but
potential subjection
to civil suit.” Sa-
exception,
activities
a common
combatant
Boyle,
repackaging
applied
we are "re-
we are also not
majority’s
assertion that
Rather,
packaging
analyz-
for the sake of convenience
anything
Boyle.
we are
from
Boyle
preemption
derived from
as
defense
ing the content of the federal common law
” ante,
immunity,’
'combatant activities
Boyle methodology
instructs us
Saleh,
Boyle
ignores
the fact that
analyzed
apply. Saleh
the content of this law
apply preemption,
pro-
though
both
then
well,
majority simply ignores that
and the
apply
principles of federal
ceed to
different
singular
in its
focus
there is
such content
Thus, not
common law to the issue at hand.
"preemption”
on the
label.
applying the common law
are we not
added).
barren,”
leh,
ly
long recognized
at 7
courts have
(emphasis
explained:
exception
exempt
Circuit Saleh
that the
serves to
activi
D.C.
that “by
very
ties
nature should be
In the context of the combatant activi-
of a possible
free
the hindrance
dam
question
the relevant
exception,
ties
States,
age suit.” Johnson v. United
much whether the substance of
not so
(9th Cir.1948)
(emphasis
F.2d
duty
with a
the federal
is inconsistent
added).
recognizing
the interests that
duty
by the
hypothetical
imposed
State
Rather,
qualified immunity
protection
made
foreign sovereign.
or
is the
trial,
imposition per
foreign
against standing
se of the state or
similarly
emphasized
public
tort law
conflicts with the FTCA’s has
“the
policy
eliminating
concepts
tort
from interest
be better served
action
very purposes
independence
the battlefield. The
taken ‘with
and without fear
” Mitchell,
pursuit
law are in
with the
consequences.’
tort
conflict
Thus,
pres-
of warfare.
the instant case
(quoting
Thus, public Court relied on the same reject claim interest the defendants’ holding immunity pro- common law sovereign immunity under Saleh amounts only government employees tects not subjecting government but contractors en- private also gaged performing in the war contractors when military effort of the suits, government’s work: thereby interfering very with the combatant pro- activities intended to be public ensuring perform- interest in by tected from statutory suit federal and government ance of duties free from the government’s common law. The unique distractions that accompany can even only interest can protected pre- implicated routine lawsuits is also when served if the potential Saleh defense to a permanent gov- individuals other than preserved by suit is our review at the employees ernment discharge litigation. outset of This is because the duties. only Not will such individuals’ immunity Saleh serves the interests of performance any ongoing government freeing engaged officers combatant ac- responsibilities suffer from the distrac- tivities from uncertainty “the doubts and lawsuits, tion of but such distractions in potential subjection inherent to civil will any public employ- also often affect Saleh, suit.” (emphasis 580 F.3d add- ees whom they by embroiling work ed). employees those in litigation. (citation
Although the legislative history
Filarsky,
of the
The same Filarsky particular specialized animate the combatant there is a need for ell here, ensuring that en- ... exception knowledge expertise govern- or activities arising out of engaged actions permanent tities ment must look outside its not suffer “distrac- activities do combatant private work force to secure the services of “inhibition,” tion,” by are not slowed individuals.” Id. at 1665-66. country. serve our As Saleh willing are just presents example. This case such an
noted, government occupies “the federal military specialized had need for warfare, and its the field when comes language interrogation skills and hired con- always ‘precisely in combat is interest private individuals to work with the mili- of a non-federal trary’ imposition to the tary its Be- performing public function. 7; duty.” 580 F.3d at see also Koohi tort potential liability cause suit and would re- (9th States, v. United timidity” part in “unwarranted sult (“[0]ne Cir.1992) purpose combatant contractors, of these exception recognize is to activities immunity must share the common law en- duty of during wartime encounters no rea- joyed by and retained is owed to those sonable care exception. FTCA combatant activities a result of au- force is directed as whom underlying immunity These interests action”). thorized if protected immunity is not short, unique federal interest em- only liability, but also an excep- bodied in the combatant activities immunity from suit. freeing is an interest in tion to the FTCA Thus, the denial of combatant activi- distraction, inhibi- military actors from effectively ties defense will be unreview- tion, imposition and fear that the of state judgment able at final because the defen- potential means of a civil suit tort law *54 longer dants will no be able to vindicate It no difference entails. makes whether right to avoid the burdens and dis- soldiers, are actors low-level Military tractions of trial. contractors will commanders, military or contractors. The “arising have to undertake future actions Supreme has made clear that immu- Court un- out of combatant activities” with the nity being per- attaches to the function derstanding they presumptively that formed, private and actors who are hired subject by to civil tort law and must abide func- perform public law of care in of a state duties the middle tions are entitled to the same immunities foreign war zone. The will be ex- result public performing to which officials those actly Supreme what the Court cautioned Filarsky, would be entitled. See duties Filarsky: working along- “those at The 1661-66. unanimous Su- [government side left employees] could be Filarsky emphasized that preme Court holding bag facing liability full liability on imposing private individuals — conjunction govern- actions taken in performing public functions will result in employees enjoy immunity for ment who timidity” part of “unwarranted activity.” business,” the same engaged public’s “those in the governmental The interests uninhibited calling important this concern “the most military action and in the attraction of special government immunity-producing (internal candidates, public pri- talented both and quotation concern.” Id. omitted). vate, activities ex- animate the combatant recognized marks It the need to are far broad- immunity only public ception, em- these interests “afford[ ] acting recognized others on behalf er than the limited interests ployees but also to in the deci- majority, recognized Supreme focuses on “sensi- Court’s which Ante, Johnson, at 219. Such tive issues.” sion in Dow v. the federal (1879),
a narrow mischaracterization of
part
L.Ed. 632
because
were
language of the
ignores
interest
the broad
occupying
force
the middle of
“arising
actions
out
exception (protecting
ongoing war.3
activities”)
sup-
no
combatant
and finds
plaintiffs agree
the district
law.
port in federal common
conclusively
courts
decided
defen-
bottom,
readily apparent
At
it is
that the
to law-of-war im-
dants were not entitled
im-
denying
district courts’ orders
Saleh
munity
that the
issue is collateral
munity
comfortably
collater-
fall
within the
contend, however,
They
the merits.
al order doctrine. As the
immunity
immunity
is not an
from suit
summarizing
has said in
its collateral order
jurisdiction,
depriving
but
doctrine of
precedents:
jurisdic-
occupied territory
courts in an
case,
particular
In each
some
value of
occupying
tion over the
forces.
high
support
order was marshaled
in avoiding
honoring
the interest
trial:
brief,
In its amicus
the United States
separation
powers, preserving
the noted,
explanation,
without
“Dow
efficiency
government and the initia-
policies
reflects
well inform the
officials, respecting
tive
its
a State’s
claims,”
ultimate disposition
of these
but
interest,
dignitary
mitigating
prepared
the United States was “not
...
government’s advantage over the indi-
to conclude that the contractor defendants
is,
vidual. That
it is not mere avoidance
right
have demonstrated a
to immediate
trial,
of a
but avoidance of a trial that
review of their contentions based on Dow
imperil
public
would
a substantial
inter-
alone.”
est,
asking
that counts when
whether an
again resorts to labels to
“effectively”
order is
unreviewable if re-
issue,
resolve this
noting that
view is to be left until later.
Dow does not use the
“immunity.”
word
Hallock,
345, 352-53,
Will v.
The fact that
specific
Dow does not use the
(2006)
(empha-
however,
“immunity,”
term
has little rele-
added).
sis
So it is
these cases.
question
ruling
vance to the
of whether a
Immunity
C. Law-of-War
*55
denying application
holding
of its
is imme-
Finally,
diately appealable.
protec-
CACI and L-3 claimed
Dow characterized the
tion
application
from suit and from the
of defense at
“exemption
issue as an
from
Iraqi law
immunity,
under law-of-war
... civil proceedings,”4
ed to ensure that
The denial of
one of the three immu-
independence
and without fear of conse nities
un-
claimed
CACI and L-3 is
—
Paulk,
quences.” Rehberg
doubtedly immediately appealable
under
—,
182 L.Ed.2d
the collateral order doctrine. Not
has
*57
(2012) (internal
immunities,
quotations
marks
denial of such
even on
omitted).
12(b)(6) motions, traditionally been found
see,
immediately
duty
to ask
appealable,
e.g.,
to be
first whether the district
Behrens,
305-06,
834,
courts and then whether our court have
immunity claim
but the substance of each
jurisdiction
Article III
to hear these eases.
example
type
of the
of col-
paradigm
is a
Methyl Tertiary Butyl
See In re
Ether
immediately
lateral order that was held
112,
Prods. Liab. Litig., 488 F.3d
121-22
appealable
Cohen. The immunities
(2d Cir.2007) (“We conclude that review of
protect
judi-
the defendants from
claimed
question
required
removal]
is
pursuant
[a
operations,
cial intervention into battlefield
independent obligation
to our
satisfy
protection
necessarily
which would
be
jurisdiction
ourselves of the
of this court
by subjecting
opera-
breached
battlefield
and the court
obligation
below.... This
above,
tives to suit. As noted
these immu-
extinguished
because an appeal [from
protected
can
nities
vindicated and
sovereign immunity]
the denial of
is taken
interlocutory
by allowing
appellate review.
interlocutory
on an
basis and not from a
judgment”);
final
Kwai Fun Wong v.
Ill
States,
(9th
United
373 F.3d
960-61
Upon
necessary recognition
of our Cir.2004) (“Resolution
subject
matter
appellate jurisdiction to
im
consider the
jurisdiction
necessary
is ...
to ensure
basis,
interlocutory
munities on
we meaningful review of the district court’s
must, at
and as
once
the next immediate
interlocutory rulings
if
appel
because
subject
jurisdic
step, consider our
matter
jurisdiction,
late courts lack
they cannot
tion,
subject
jurisdic
as well as the
matter
review the
of these properly appeal
merits
every
tion of the district courts. “On
writ
(internal
rulings”
ed
quotation marks omit
appeal,
of error or
the first and fundamen
ted) (alterations in original)); Hospitality
question
jurisdiction,
tal
that of
first of House,
Gilbert,
Inc. v.
court, and then
court
from (5th Cir.2002) (“[W]here,
inas
the instant
question
which the record comes. This
case,
interlocutory
we have
appellate juris
the court is bound to ask and
answer
diction to review a district court’s denial of
itself....”
Steel Co. v. Citizens
a Bet
immunity,
Eleventh Amendment
we
Env’t,
ter
first determine whether there is federal
(1998).
pro
Article III
subject
jurisdiction
matter
over the under
judicial power only
vides
extends
ease”);
lying
Timpanogos
Tribe
Con
“Controversies,”
to “Cases” or
U.S. Const.
(10th Cir.2002)
way, 286 F.3d
Ill,
2,§
art.
“requirement
(“[Jjurisdiction is a
question
threshold
jurisdiction be established as a threshold which an appellate court must resolve be
matter ‘spring[s] from the nature and lim
addressing
fore
the merits of the matter
judicial power
its of the
of the United
before it....
appellate
[B]ecause we have
excep
States’ and is ‘inflexibleand without
jurisdiction
interlocutory
over the
appeal
”
tion,’
94-95, 118
id. at
(quoting
S.Ct. 1003
of defendants’
assertion of Eleventh
Swan,
Mansfield,
L.M.R.
C. &
Co.
immunity,
appel
Amendment
we also have
Even when faced a collateral underlying order tion over the Tribe’s claim instance”).5 immunity appeal, we are not relieved of defendants the first ju- soning determining subject juris- 5. Some of these courts have considered matter questions by exercising pendent "necessary meaningful risdictional diction is to ensure jurisdiction appellate question, immunity question. over rea- review” of the See Kwai *58 us, military, by contractors of the worked side presently cases before In the military carry side with the out these courts to en- have asked civilian plaintiffs military operations under the ultimate su- action tort law causes of tertain state military pervision and command of the taken in connection with on conduct based in “during period of armed conflict and against another ongoing an active and war They connection with hostilities.” were sovereign. plaintiffs’ To entertain the military engaged by pursue interro- time, impose, for the first claims would under the command and control of gations zone, tort duties onto an active war state military personnel respect persons array by a broad of interferences raising And, by military. detained consistent judiciary military into the functions mili- with the close connection between the textually committed our Constitution contractors, tary military and the the com- President, and the Execu- Congress, the allege and the plaints I, 8,§ Branch. See U.S. Const art. tive conspired civilian contractors in their Congress to (authorizing els. 11-14 declare abuse of the detainees. war, navy, to raise armies and create a II, military); art. to make rules for the id. gave my panel For reasons I in (providing § 2 that the President “shall be Shimari, concurrence Al 658 F.3d at army of the Commander-in-Chief J., (Niemeyer, concurring), 420-25 and the States, navy of the and of the United given by Judge King majori reasons in his states, militia of the several when called ty Taylor opinion Kellogg Brown & the actual into Service United Services, (4th 402, 412 Root 658 F.3d Cir. States”). implicate Because these cases 2011), I political would conclude that the “textually demonstrable constitu- several question deprives doctrine both court authority tional to the commitment[s]” subject and the district courts of matter department^],” no “political have jurisdiction to hear these cases. also See place federal courts and must be dis- EPA, Massachusetts jurisdiction. missed for lack of Baker v. (2007) (“It Carr, learning justiciable is ... familiar that no (1962). L.Ed.2d 663 ‘controversy’ parties exists when seek ad judication a political question”); Tiffany plaintiffs The these cases were seized (4th States, v. United 931 F.2d military, having a war zone been Cir.1991) (“Of legion governmental activity suspected possess- of hostile or of endeavors, perhaps clearly the most ing intelligence. useful The function of judicial marked for provi deference are detaining interrogating persons such security sions for national and defense.... intelligence undoubtedly to obtain was crit- strategy employed and tactics on the military strategies ical to the success of clearly subject judi battlefield are campaigns. judgment of whom to review”); Kellogg cial Carmichael v. about, interrogate, inquire what to and the Servs., Inc., Brown & Root 572 F.3d techniques comfortably to use fell within (11th Cir.2009). powers of the Commander-in-Chief Accordingly, undoubtedly and his subordinates the chain of com- while we have L-3, appellate jurisdiction mand. And CACI and as civilian under Cohen to con- 960-61; House, Wong, Timpanogos jurisdiclion. Hospitality F.3d at Fun See 298 F.3d Tribe, at 1201. Other courts have at 429-30. The result is the same under pow- considered it because of their inherent approach. either obligation er and under Steel Co. to consider *59 appeals stage at this in the sider subject juris- lack matter
proceedings, we cases, as did
diction over these the district I
courts. would therefore dismiss these subject
appeals jurisdic- for lack of matter
tion and remand the cases to the district
courts with orders likewise dis- subject
miss the cases for lack of matter
jurisdiction.
Judge Judge Wilkinson and Shedd have they join opinion.
indicated
TCR SPORTS BROADCASTING
HOLDING, L.L.P., Mid-Atlantic d/b/a Network,
Sports Petitioner,
FEDERAL COMMUNICATIONS
COMMISSION; United States America, Respondents, Incorporated,
Time Warner Cable
Intervenor. Baseball;
Office of the Commissioner of Project; Litan;
Media Access Robert Hahn, Supporting
Robert Amici Peti-
tioner.
No. 11-1151.
United of Appeals, States Court
Fourth Circuit.
Argued: Jan. 2012. May
Decided: